DURA LEX SED LEX

By Atty. Rolex T. Suplico

Last Tuesday, May 26, 2020, I watched the first joint committee hearing of the Committee on Legislative Franchises and the Committee on Good Government and Public Accountability at the session hall of the House of Representatives. They took up the franchise application of the shuttered ABS-CBN. Mr. Carlo Lopez Katigbak, ABS-CBN’s president, delivered an opening statement in behalf of the media giant, followed by Rep. Rodante Marcoleta, who argued against the franchise grant. But the latter’s speech is another story. Mr. Katigbak said that, like their opponents, they, too, believed that the law is the law and that they have not violated any law. He spoke in Filipino. And he quoted, albeit indirectly, the famous maxim Dura Lex Sed Lex.

This maxim’s origin can be traced to Bishop Burchard (950-1025 AD) of Worms City, Germany, who in 1008 AD began to work on the Decretum, a 20-volume collection of Ecclesiastical Rules in Latin.  It later became the primary source of canon law. From his name Burchard, we have the word brocard, which means a legal maxim in Latin.

Among the brocards from Bishop Burchard is the Latin maxim: Dura Lex Sed Lex, which means, “the law is harsh, but it is the law.” It follows from the principle of law that even draconian laws must be followed and enforced, if one disagrees with the result, one must seek to change the law.

Amidst the ABS-CBN issue, Dura Lex Sed Lex became a trend line in the country and in social media and even up to this time. Those for or against ABS-CBN, lawyers and non-lawyers alike, including Mr. Katigbak and the man on the street, quoted it, and they continue to quote it even at this time.

My UP Law classmate Dean Tony La Vina of the Ateneo School of Government and law student Jayvy Gamboa writing for Rappler last May 18, 2020 said that Dua Lex Sed Lex is oppressive, unjust and archaic. They said it brings us back to the time of the Romans, whose law was tied up with convenience and privilege. They stated that ABS-CBN is the country’s largest entertainment and media conglomerate, and that it employs around 11,000 workers. Mr. Katigbak, in his speech, said that ABS-CBN would start dismissing workers by next week. If they have their way, I presume that both Dean La Vina and Mr. Gamboa would have allowed ABS-CBN to continue to broadcast even without a franchise. They quoted the Supreme Court in the case of Obiasca vs. Basallote (GR 176707, Feb. 17, 2010):

“When the law is clear, there is no other recourse but to apply it regardless of its perceived harshness. Dura lex sed lex. Nonetheless, the laws should never be applied or interpreted to oppress one in order to favor another. As a court of law and of justice, this Court has the duty to adjudicate conflicting claims based not only on the cold provision of the law but also according to the higher principles of right and justice.”

Sometime in June 2010 and around 10 years before the ABS-CBN brouhaha, Archbishop Oscar Cruz wrote that the application of the maxim “becomes a big, bad joke” when he said that “jails are full of poor and helpless people; x x x the so-called “Rich and Famous” are above the law; x x x someone is altogether immune from any gross misdeed, any gigantic graft, any colossal corruption; x x x someone, with all the power and influence to do what is right and just, but does exactly the abominable and censurable.”

On the other hand, those against ABS-CBN argue that, without a franchise, it was proper for the National Telecommunications Commission (NTC) to stop its operations in accordance with the law. It brings to mind the case of LBP vs. Republic (GR 150824, Feb. 4, 2008), where the Court held that: “The rule must stand no matter how harsh it may seem. Dura lex sed lex. Ang batas ay maaring mahigpit subalit ito ay mananaig.”

I understand that as of this writing Senate Bill No. 1530 is gathering support like an avalanche in the upper House. The bill provides for the non-expiration of licenses, including franchises granted by Congress, if the licensee has filed a timely and sufficient application for renewal.

I think that this is the right way. If we do not agree with a law then we should try at least to have it repealed or amended. We cannot violate it or coerce others not to obey it. Theodore Roosevelt aptly stated that: “No man is above the law and no man is below it; nor do we ask any man’s permission when we ask him to obey it. Obedience to the law is demanded as a right; not asked as a favor.”

I recall that there were several personalities, including legislators, who tried to persuade the NTC to issue a provisional authority (PA) to ABS-CBN. That would have been an ultra vires act, as the NTC cannot supply the required franchise as basis for a PA, after the franchise of ABS-CBN (RA 7966) expired on May 4, 2020. The Solicitor-General timely warned NTC that it would have been a violation of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019). He was absolutely right. In fact, I think that RA 3019 was already violated if we examine the facts and the law closely. The legislators as well as the NTC Commissioner and his 2 Deputies are all public officers as defined in Sec. 2(b) of RA 3019. Sec. 3(a), infra, defines the corrupt practices of public officers. Thus:

“(a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of the rules and regulations duly promulgated by competent authority x x x.”

In the case of Associated Communications & Wireless Services United Broadcasting Networks vs. NTC (GR No. 144109, Feb. 17, 2003), which is often quoted whenever ABS-CBN is discussed, Chief Justice Puno wrote that:

“What exactly is the reason or rationale for imposing a prior congressional franchise? There seems to be no valid reason for it except to impose added burden and expense on the part of the applicant. The justification appears to be simply because this was required in the past so it is now. x x x. The call to dispense with the requisite legislative franchise must, however, be addressed to Congress as the lawmaker of the land for the Court’s function is to interpret and not to rewrite the law. As long as the law remains unchanged, the requirement of a franchise to operate a television station must be upheld.”

So what do we do in the meantime that the law is not yet repealed nor amended?  We have no choice but to obey it. Abraham Lincoln once said that “(t)he best way to get a bad law repealed is to enforce it strictly.” I feel that the filing of SB 1530 is the first step on the right direction to repeal the prior franchise requirement to operate radio and television stations. It is up to the Senators to send a senate bill, and not a mere resolution, to the bigger House and to convince the Representatives to support their cause. Please recall what the Greek philosopher Aristotle (382-322 BC) once said: “Law is order, and good law is good order.”

The next chapter is yet to be written in the saga of the fallen behemoth ABS-CBN. The next hearing of the 2 House committees is set on Monday, June 1, 2020 at 9am. See you!