Transcript of Interview with Senate Minority Leader Franklin Drilion
CNN's The Source with Pinky Webb
27 February 2020

Q: House leaders sent a letter to the NTC telling the NCTC to grant a provisional authority to ABS-CBN

SFMD: That's good, because, then, if you look at the antecedents, there is in fact a memorandum of agreement signed by the NTC and the KBP, basically saying that while the renewal of franchise is pending in Congress, it states that they can continue to broadcast so long as the renewal of franchise is being processed.

That indicates the perception of the NTC of its power. Yes, I heard in your program former CJ Puno saying that a franchise is needed. First of all, let me emphasize that the power to grant franchise is with Congress. This is a Constitutional duty of Congress. The interpretation of the Constitution is not the exclusive monopoly of the Supreme Court. Both the Congress and the executive branch, represented by DOJ secretary, are of the common view that the NTC can issue a provisional authority pending the processing by the Congress of the renewal of the franchise.Retired Chief Justice Puno said there are Supreme Court decisions. The SC decision is different on its factual background, because in that case the applicant no longer had a franchise and there was no more franchise pending in Congress. And the SC said, yes, you need a franchise and the NTC does not possess that authority. I emphasize that in the case of ABS-CBN, it is a different situation. There is a pending application being debated upon actively. Both houses of Congress - Speaker Cayetano, Senate President Sotto and Senator Poe as chairman of the Committee on Public Services- all said that a franchise continues to be valid while we are deliberating on the renewal. And Justice Secretary Guevarra concurred with that view. Here, you have two branches of the government, who are co-equal with the SC saying, yes, we can do it. Unless otherwise it is stopped by the SC, it is our view and it must be given due consideration that ABS-CBN can continue broadcasting as long as the Congress would continue to debate on the franchise.

Q: Former CJ Puno said that we need a franchise and NTC, wala kayong karapatang magbigay ng permit.

SFMD: We respect the view of the former CJ. But we disagree and we have our own view.

Why are we so in a hurry to terminate the franchise? Remember, it is not at every instance that a franchise is necessary. I ask you a question, for example, all the bus companies, where do they get their franchise? Not from Congress but from the LTFRB as a supervising agency on transportation, in the same manner that the NTC is the supervising agency on the telecommunications. The Congress and the executive through the DOJ, whose opinion is binding on the executive, have the same view that ABS-CBN can continue to operate until this Congress expires. That is precisely what we are doing now. Of course I tried to provide a safety measure through the joint resolution. Today, we have only six session days before we adjourn. On May 4, everybody will be on pins and needles whether or not ABS-CBN can continue to operate.

Q: If you say that the Senate and the justice secretary were one that this can happen but there is a decision penned by the SC, it is as if saying, dalawa kaming ganitong opinion. Ganon po ba yun?

SFMD: That is not unusual. A law can always be subject to different interpretations. There are decisions in the SC saying that the opinion of the technical agencies should be given due consideration. The opinion of Congress, in this case, which grants the franchise, should also be given due consideration. Remember, we are not prohibited from interpreting our own powers. In fact we not prohibited from interpreting the Constitution and the laws and that happens every day. Until the Supreme Court says otherwise, that stands.

SFMD: The SC case cited by the former CJ is not squarely applicable here. Even assuming that it is squarely applicable, you examine the decisions of the SC, as we lawyers do, there are many instances that they changed their minds. The fact that the Supreme Court says so should not freeze us into inaction.

Q: For the SC to look into this, it has to be questioned again?

SFMD: That's correct.

Q: While it is not being questioned, it stands?

SFMD: Yes.

Q: The 2003 ruling of the SC?

SFMD: No. While the case has not been brought to the Supreme Court, the opinions of the administrative and political agencies should prevail.

Q: So, Congress and the Justice secretary's opinion?

SFMD: Yes.

Q: You authored both a joint resolution and concurrent resolution, why the need for both?

SFMD: A joint resolution has the force and effect of law and, therefore, once it is passed, that is processed as a law and, in fact, would be subject to the approval of the President. The concurrent resolution was borne out by the opinion of Sec. Guevarra who expressed his view that the NTC would be strengthened by a concurrent resolution. That is why we filed the concurrent resolution, which expresses the sense of the Senate.

Q: There was a statement made by SP Sotto, where he said that we could support such resolution but the SC decision cited by former CJ Puno is a game changer.

SFMD: That's a correct reaction. What I am saying is, the fact that there are three SC decisions should not freeze us into inaction, because we have our own interpretation and we can go back to the Supreme Court and say, you may want to take a second look at this. There is nothing wrong with that.

Q: But somebody has to go to the SC?

SFMD: Yes, that's correct. Senate President Sotto citing the jurisprudence is correct. What I am saying is the jurisprudence is there, but it is not etched in stone and we can ask for review. We have a strong basis because both houses of Congress and the secretary of just have said that it (to allow ABS-CBN to continue to operate while the matter is pending in Congress) can be done.

Q: On Speaker Cayetano's remarks

SFMD: We will not go down to that level of characterization, of calling a co-equal branch sipsip. We would like to think that Speaker Cayetano knows the principle of inter-parliamentary courtesy, wherein we respect each other's process. It has been made clear that we are hearing a resolution extending for a short period of time the franchise of ABS-CBN but we will not act on it until the HoR passes a similar measure.

Q: On the quo warrant and the gag order

SFMD: I think the Supreme Court will think deeply before they allow a gag order because this is very basic. We are a co-equal branch. there are Supreme Court decisions which said that no court can issue a gag order, because when we investigate, it is of different nature than that of the judiciary. We investigate in aid of legislation to enable us to craft policies. The SC would investigate in order to adjudicate competing rights. Magkaiba po. I think, hopefully, the SC will not issue a gag order.

Q: What about the quo warrant? You were a justice secretary, senator, quite a long list of credential you have. What are you thoughts on this?

SFMD: At the very least, both Congress and the Supreme Court would have jurisdiction. But I would like to think that this issues, yes, we are debating on it, but on May 4 it will become academic, because the franchise expires. What quo warranto are we talking about? The issue of whether it will be renewed is up in the air.

Q: What if the NTC grants a provisional permit, so the quo warranto stands?

SFMD: It is debatable because ABS-CBN will be operating on a basis of a provisional authority. But of course that will be disputed. According to former CJ Puno, a provisional authority must be premised on a franchise.

Q: The President accepts the apology of ABS-CBN. Do you think it has effect on how HoR will view the President accepting the apology?

SFMD: In our system, let's face it, history will tell us that the House of Representatives will always support the President. The Senate can stand more independently of the President for the very simple reason that we are elected nationwide. To your question, I'll just point to the political history of Congress. I am not saying it is bad, all I am saying is that the reality, because the HoR is usually supportive of the President.

Q: On the VFA petition to be filed by Senate

SFMD: The consensus is that, we must be armed by the sense of the Senate resolution that it is, in fact, this issue should be brought to the Supreme Court on the question that, whether or not the President, alone, can terminate a treaty. There are views by legal scholars saying that the mirror should apply, which means that the process of withdrawal should mirror the process of approval. That is a theory and even in the United States this is an open question, so the Senate President said let us ask the Supreme Court to define where we are and I have filed a resolution asking the Senate Foreign Relations Committee to back us up with a sense of the Senate resolution. I was talking to Senate President Sotto yesterday and he said he would like to see the resolution put on the floor for debate next week.

Q: Kailan po ipa-file.

SFMD: As soon as we have it (the sense of the Senate resolution that the termination of treaties needs Senate concurrence). We have to have the Senate as a petitioner, not just individual senators. Of course it will not change the legal issues, but it is better that it is the Senate as an institution which will bring the issue to the Supreme Court.