By Atty. Rolex T. Suplico
The second paragraph of the ponencia of Justice Antonio Eduardo Nachura in ABS-CBN BROADCASTING CORPORATION, EUGENIO LOPEZ, JR., AUGUSTO ALMEDA-LOPEZ and OSCAR M. LOPEZ, petitioners, vs. OFFICE OF THE OMBUDSMAN, ROBERTO S. BENEDICTO, EXEQUIEL B. GARCIA, MIGUEL V. GONZALES AND SALVADOR (BUDDY) TAN, respondents (GR 133347, Oct. 15, 2008) stated that:
“This case stems from an all too familiar chapter in Philippine history, i. e., the declaration of martial law by then President Ferdinand Marcos and the simultaneous sequestration of not a few private corporations, including one of the petitioners herein, ABS-CBN Broadcasting Corporation (ABS-CBN).”
In the ongoing joint hearings in the House of Representatives on the ABS-CBN application for a new franchise, ABS-CBN lawyers maintained and continue to maintain that its facilities were seized during the martial law period. Is this correct? Read on and find out.
In 1994, petitioners, as officers and on behalf of ABS-CBN, filed individual criminal complaint-affidavits with the Ombudsman, charging the private respondents with the following crimes penalized under the Revised Penal Code: Execution of Deeds by Means of Violence or Intimidation (Art. 298), Estafa (Art. 315, pars. 1(b), 2(a), 3(a), Theft (Art. 308), Robbery (Art. 302), Occupation of Real Property or Usurpation of Real Rights in Property (Art. 312) and Other Deceits (Art. 318); alleging that the facilities of ABS-CBN were seized and/or taken-over by the respondents led by Ambassador Roberto Benedicto, Pres. Marcos’ UP Law classmate and fraternity brother.
The petitioners uniformly narrated that on Sept. 22, 1972, a day after martial law was declared, soldiers seized and closed the ABS-CBN Broadcast Center in Quezon City, pursuant to Letter of Instruction (LOI) No. 1, issued by Pres. Marcos. LOI 1 ordered the closure of all radio and TV stations nationwide. When it became clear that petitioners would not be allowed to re-open, Eugenio Lopez, Jr., tried to sell ABS-CBN to the government, and then to Gov. Benjamin Romualdez. An opportunity, however, appeared. On June 6, 1973, the stations of Kanlaon Broadcasting System (KBS) were gutted by fire. Benedicto, who managed and controlled KBS and Radio Philippines Network (RPN) under his Benedicto Group of broadcasting companies, met Alfredo Montelibano, then chair of the Board of Directors of ABS-CBN. They executed a letter-agreement dated June 8. 1973, leasing the radio and TV facilities of ABS-CBN in Quezon City to KBS-RPN. They agreed to fix the rent later on. On Oct. 31, 1973, Oscar Lopez met with Benedicto and discussed the rent and a possible outright sale. By this time, the stations were slowly being transferred to KBS and to the government. However, the negotiations with KBS dragged. In May 1976, then Sen. Lorenzo Tañada, as counsel for ABS-CBN, “wrote Benedicto demanding vacation of the ABS-CBN Broadcast Center and payment of back rentals.” In June 1976, Benedicto’s lawyer, Sen. Estanislao Fernandez, met with Tañada. But they failed to reach an agreement. In 1986, Pres. Marcos was toppled from power. Pres. Cory Aquino took over the government. She ordered the stations returned.
The respondents filed their counter-affidavits, denying the charges. They averred that the letter-agreement dated June 8, 1973 was a free and voluntary act of ABS-CBN. They stated that the negotiation shifted to an outright sale because the creditors of ABS-CBN were demanding payments of their loans with KBS-RPN. The negotiations then stalled because of the sequestered status of ABS-CBN. Thereafter, the government started to use the provincial facilities, which are not covered by the letter-agreement.
In their joint reply-affidavit, petitioners “reiterated Benedicto’s over-all ploy, in conspiracy with the other respondents who were officers of KBS and/or RPN, to use and occupy ABS-CBN properties without paying compensation therefor. Petitioners maintain that respondents’ grand scheme was to take-over ABS-CBN, albeit ostensibly covered by the letter-lease agreement, giving the take-over a semblance of legality.”
After the issues were joined, the Ombudsman dismissed the complaints in its Joint Resolution dated May 2, 1997. It stated that:
“1. The “Letter-Agreement dated June 8, 1973 belie any illegal take-over of the ABS-CBN complex.“ While the Lopezes alleged that the letter-agreement was “forced unto them thru intimidation, x x x, there is nothing x x x adduced to prove this allegation except their threadbare allegation of threats. On the contrary, it appears that the Lopezes blessed the letter agreement hoping that their financial difficulties x x x and their problem concerning the continued detention of Eugenio Lopez, Jr., x x x would at least be mitigated.” It concluded that it is “clear that the ABS-CBN Complex was freely leased by x x x. Perforce, the complaint under Article 298 of the Revised Penal Code must fail.”
“2. Other TV and radio stations were taken over pursuant to LOI 1-A, hence no violations of Art. 312, 302 and 308 of RPC.” It noted that “under the strength of (LOI 1-A) that KBS-RPN was authorized to enter, occupy and operate the facilities of ABS-CBN.”
“3. No unlawful taking as to justify charges for Robbery or Theft.” It concluded that “KBS-RPN has juridical possession of the ABS-CBN properties subject of the complaint, a right which can be validly set-up even against ABS-CBN itself.”
“4. No deceit was employed to gain possession of the Broadcast Center and the provincial TV and radio stations.”
Meantime, on May 15, 2000, Benedicto died. Petitioners filed a separate civil action against his estate, based on the letter-agreement dated June 8, 1973.
Aggrieved by the Ombudsman’s Joint Resolution, the petitioners filed a petition for certiorari before the Supreme Court.
The Court affirmed the Ombudsman Joint Resolution. It stated that it will “not interfere with the Ombudsman’s exercise of his investigatory and prosecutorial powers vested by the Constitution. In short, we do not review the Ombudsman’s exercise of discretion in prosecuting or dismissing a complaint except when the exercise thereof is tainted with grave abuse of discretion.”
The Court noted, “it is beyond cavil that petitioners seek to attach criminal liability to an equivocally civil undertaking gone awry. As pointed out by the Ombudsman, although the petitioners may not have realized their expectations in entering into the June 8, 1973 letter-agreement, such does not render their consent thereto defective.”
The Court then explained that “(t)he execution and validity of this letter-agreement is connected with respondents’ culpability for the felonies charged as these included the element of whether they have juridical possession of the ABS-CBN properties. Essentially, petitioners claim they did not freely give their consent to the letter-agreement. However, on more than one occasion, petitioners have invoke the letter-agreement provisions, and made claims thereunder. First, petitioners met and discussed with respondents the fixing of the rental rate for the ABS-CBN studios in Quezon City as provided in paragraph 2 of the letter-lease-agreement. Next, petitioners’ counsel wrote a demand letter to respondents for the payment of rentals for the latter’s occupation and use of ABS-CBN properties pursuant to the letter-agreement. Last and most importantly, petitioners have made a claim against the estate of Benedicto based on the same June 8, 1973 letter-agreement. This action of petitioners clearly evinces their ratification of the letter-agreement.”
Then, the Court observed that:
“As petitioners have ratified the letter-agreement, even after the lifting of martial law and the toppling of the Marcos government, and advanced the validity of the letter-agreement in their claim against the estate of Benedicto, they cannot, in the same breath, aver that respondents’ actuations in the execution of the letter-agreement were criminal in nature, or that the letter agreement was more ostensible than real and to insist on the prosecution of the respondents for felonies supposedly committed in connection with this ubiquitous letter-agreement.”
So, what do you think, my dear reader? Seized and/or taken? Or, as the Supreme Court said, a “civil undertaking gone awry?”
