Ched’s ‘midnight memo’

(Continued from yesterday)

The Peculiar Autonomy of SUCs

The problem with ‘autonomy’ is that it has different meanings. But one meaning of ‘autonomy’ in regard to SUCs that sets them apart from private HEIs is the fact that SUCs are not covered by the Manual of Regulations for Private Higher Education. This alone is important for the Manual codifies so many minutiae of governance that therefore do not apply to SUCs. The provision then in R.A. 7722 that apparently rejects any privileging of SUCs should be read in light not only of R.A. 8292 but of the practice of the CHED itself: the issuance of a Manual of Regulations applicable only to private HEIs. And why CHED limited the application of the MORPHE to private HEIs is not a matter of CHED’s graciousness, but a matter of law: no manual of regulations can supersede the charter of an SUC, or a law governing its operation such as R.A. 8292. In fact, Section 4,1 of R.A. 8292 expressly confers regulatory authority on the governing boards of SUCs insofar as our colleges and universities are concerned. It would be absurd to grant CHED concurrent regulatory authority—with the very real possibility that both bodies issue conflicting regulations! The provision in the MORPHE then that makes it apply to SUCs is without basis in and in fact is in violation of law. The law may not be perfect, but it is provident!

Another sense that SUCs are autonomous is to be found in the Corporation Code. Each private HEI is run by a corporation—traditionally non-stock, but now, including stock corporations. As such the boards of trustees of private HEIs enjoy all of, but only such powers as are granted by the Corporation Code. Quite importantly, while R.A. 8292 grants the governing boards of SUCs all the powers of boards of directors of corporations under Sec. 36 of the Corporation Code, Section 4 goes on to enumerate 23 other powers!

Probably as important a meaning of autonomy in regard to SUCs is the express policy-making power granted by Section 5 to governing boards. In legal hermeneutics, the phraseology of the law can be crucial to its proper application. The section empowers the governing board to ‘promulgate and implement policies in accordance with the declared state policies on education xxx a well as the policies, standards and thrusts of the CHED under R.A. 7722.” Surely, this cannot mean that policy-making is left to CHED. It is fundamental to statutory construction that no interpretation should render provisions of law effete. What is clear therefore is that SUCs have the power to draw up, promulgate and implement policies not merely confined to CHED policies!

Jurisprudence

I think that the autonomy of SUCs is indisputably established by the case of Camacho v. Gloria, G.R. 138862 (August 15, 2003). It is this very same piece of jurisprudence that makes the DOJ Opinion very misleading!

Justice Leonardo Quisumbing, for the Court wrote:

“Later Republic Act 7722, an Act Creating the Commission on Higher Education, divested the DECS Secretary of jurisdiction over tertiary institutions. xxx However R.A. 7722 and its Implementing Rules merely replaced the DECS Secretary with the Chairman of the CHED as Chairman of all boards of regents of state universities. The power of the boards of regents to administer and govern chartered state universities was neither removed nor curtailed. The legislative intent to preserve the administrative power of said governing boards, including the power to hire and fire school officials and personnel, is manifest even in the most recent law, R.A. 8292, the Higher Education Modernization Act of 1997.” (emphasis mine)

While the lis mota in this case was the exercise of administrative power of the governing board over university officials, the pronouncement of the Court as to the extent of the autonomy of SUCs was nevertheless necessary to the resolution of the issue and thus constitutes what lawyers call the ratio decidendi—that portion of the Supreme Court’s judgment that creates binding precedent.

The doctrine of the Court is clear: R.A. 7722 should not be read as a curtailment, much less a negation, of the power of governing boards of SUCs to administer and govern chartered universities and colleges.

rannie_aquino@rannieaquino.com –Fr. Ranhilio Callangan Aquino