Ched’s ‘midnight memo’

First of 2 parts

The last act of Commission on Higher Education Chairman Manny Angeles consisted in the issuance of a memorandum on state universities and colleges that relied on what, to my mind was an unfortunate, poorly argued, poorly articulated Opinion of the Department of Justice on the relation between the Commission on Higher Education and state universities and colleges. By way of preface, let us be clear first about a constitutional principle: the interpretation of law is an eminently judicial function—and so while an executive interpretation such as that provided by the Secretary of Justice may be persuasive, it is never mandatory authority. Second, the unfortunate Opinion is clearly discordant with a clear judgment of the Supreme Court that I shall discuss below. It is elementary law that decisions of the Supreme Court interpreting the law form part of the legal system of the Republic; opinions of the Department of Justice do not!

Constitutional Autonomy

There are two provisions of the Constitution that have to do directly with the autonomy of all higher education institutions.

First, Article XIV, Section 4,1 limits the State’s role in respect to educational institutions as “reasonable supervision and regulation”. It is significant that “control” is not granted the State—and “control” has a given definition in law. “The power of control xxx has been jurisprudentially defined (with reference to the president’s power of control) as the power of an officer to alter or modify or nullify or set aside what a subordinate officer has done in the performance of his duties and to substitute the judgment of the former for that of the latter.” Villa v. City of Bacolod, G.R. 80744 (September 20, 1990). Were the Commission on Higher Education to exercise the powers of control over higher education institutions—whether SUC or not—the CHED would be arrogating to itself a power that the Constitution does not allow it to enjoy. Many times, the silence of the law, or the omission of a crucial term is as binding as what the law expressly provides. In fact, it is interesting that “supervision” is qualified by “reasonable”. I am quite ready with some examples of “unreasonable” measures of supervision —attempts at control—that clearly run afoul of this constitutional limitation. Putting a moratorium, for example, on the e-delivery of subjects, or even of entire programs constitutes “control” —and the State, whether through the CHED or any other agency, just does not enjoy this power over higher education institutions under the Constitution.

Second, Art. XIV, Section 5, paragraph 2 expressly provides for academic freedom in all institutions of higher learning. Section 11 of RA 8292 guarantees “all institutions of higher learning, public or private xxx academic freedom and institutional autonomy.” Fr. Bernas usefully points out that in the debates of the Commission that drafted the 1987 Constitution, the understanding was principally “the freedom of intellectual enquiry”, and the freedom of students and teachers was circumscribed by the Bill of Rights. (Bernas, The Constitution of the Republic of the Philippines, p. 1303)

In different lectures and articles on academic freedom, I have always pointed out the fact that academic freedom—as constitutionally guaranteed—is principally the freedom of the institution. Jurisprudence has established the entailments of academic freedom to include: (a) the freedom to determine its roster of professors; (b) the freedom to determine the mode of delivery of instruction; (c) the freedom to determine conditions for the grant of degrees and distinctions; (d) the freedom to withdraw degrees granted; (e) the freedom to set policies of admission and retention (f) the freedom to close a high school; (g) the freedom to refuse appointment of tenure even to one who has completed three years of full service in private institutions when there is failure to meet standards. It will also be remembered that academic freedom was the rubric under which the Supreme Court struck down attempts of the PRC to restrict the organization and conduct of review classes, briefing conferences and other similar measures meant to prepare students for licensure examinations. These are, quite clearly, articulations of what remains to be a succinct summary from Justice Frankfurter: the freedom to determine (a) what should be taught (b) how it should be taught (c) who may teach (d) who may be taught.

When this constitutional provision is read in conjunction with the powers of governing boards of SUCs, particularly paragraphs i’, j, s and u, it strikes me as rather odd that we have been quite reticent about enjoying the full range of these freedoms. Why, for example, is there very little innovation that goes on in the delivery of instruction, especially considering the ease of communication, and the availability of voice-over-internet protocols and video-conferencing? What problem would there be with organizing classes that meet by web-chatting? “Fear of abuse” always puts on the brakes, but if we govern our SUCs by such fallacies, then we will be squandering the autonomy that is ours under the Constitution and the laws by a senseless fear, because truth to tell, anything at all can really be abused! (Continued tomorrow) –Fr. Ranhilio Callangan Aquino, Manila Standard Today