More on CHED

I once had a kindly superior who, when he wanted to give an admonition, would often preface it with the words “Without reference to the past and looking only to the future . . .”, and then he would drop his bomb. Let that be my preface too for what I am about to write, because, from the reactions I received on my article last week on the “martial law” tendencies of CHED, I gather that I may have stoked a hornet’s nest.

I begin with the structure of CHED as laid out in RA 7722, CHED’s charter. It is not a one man or one woman body. It is a Commission, a collegial body, consisting of a Chairman and four members.

The requirements for appointment to the Commission are fairly demanding. They should be “holders of earned doctorate(s), who have been actively engaged in higher education for at least ten (10) years, and must not have been candidates for elective positions in the elections immediately preceding their appointment. They shall be academicians known for their high degree of professionalism and integrity who have distinguished themselves as authorities in their chosen fields of learning. The members of the Commission shall belong to different academic specialization.”

As if this were not enough, Section 7 of RA 7722 also creates a Board of Adviser "which shall meet with the Commission at least once a year to assist it in aligning its policies and plans with the cultural, political and socioeconomic development needs of the nation and with the demands of world-class scholarship." The Board of Advisers consists of Department Secretaries, the President of the Federation of Accrediting Association of the Philippines (FAAP) and the President of the Fund for Assistance to Private Education (FAPE).

A collegial body makes decisions normally by a simple majority vote. What comes out of the body is the decision not just of one person but of the entire body. A decision of one person, not even of the Chairman, is not a decision at all. Thus, for instance, rules and regulations coming from the body should be, for their validity, collegial decisions.

I make this point because I have been asked if I meant to attribute the “martial law” tendency of CHED, about which I wrote last week, to any particular person. Because CHED is a collegial body I must assume that what I call “martial law” tendency is emanating from decisions of the entire collegial body. If true, considering the demanding qualifications for membership in CHED and considering further the importance of education for democracy, I find it disturbing. If not true, it is even more disturbing, because it would mean that the members are not doing their job. Bato bato sa langit, kung tamaan huwag magalit.

If one examines Section 8 of RA 7722 which contains an enumeration of the powers of CHED, one will see that the powers are given not to any one person but to the Commission as a body. CHED is not any one person's fiefdom. Not even the Chairman is given any special power except, as implicit in the title Chairman, the power to call for and preside in deliberations. Again I must assume therefore that every decree and memo emanating from CHED has been the product of careful deliberation by the Commissioners and, where needed, after consultation with the Board of Advisers mandated by Section 7 of RA 7722. Thus if there is a hue and cry from the rank and file in CHED, as I have been told there is, against what CHED has been doing, it should be addressed to and answered by the officialdom of CHED and not just by one person.

But let me also repeat, as I indicated in my column last week, that as far as private accrediting associations are concerned, CHED has no power whatsoever. Even RA 7722 merely says in Section 14, "Accreditation. - The Commission shall provide incentives to institutions of higher learning, public and private, whose programs are accredited or whose needs are for accreditation purposes." Any intrusion into private accrediting associations is illicit usurpation. If I were a school President, I would simply consign those emanations to my circular filing cabinet.

Finally, I have been trying to figure out where the Chairman and the Commissioners stand in the administrative scheme of the government. Section 6 of RA 7722 says: "The chairman and the commissioners shall have the rank of a Department Secretary and Undersecretary, respectively. They shall receive the compensation and other emoluments corresponding to those of a Department Secretary and Undersecretary, respectively, and shall be subject to the same disqualification."

I am not sure if this means that the Chairman is a Department Head like the other Department Secretaries. If he is, would the principle of "qualified political agency" apply to him? The principle says that the heads of departments are alter egos of the President and the acts performed by them in the ordinary course of their functions are presumed to be the acts of the President unless the President expressly reprobates them. The principle is a vehicle for incriminating the President. However, what makes me wonder if the principle is applicable to the Chairman is the fact that, as I have indicated above, the Chairman has no powers independent of those of the Commission. And certainly the Commission is not a department head.

I should probably leave it that way and refrain from involving the President in the memos and decrees of CHED. Meanwhile, a Blessed Christmas to all and a hassle free New Year!

Send reaction to this article to bernas@admu.edu.ph.

28 December 2009

CHED Attempts "Martial Law" Over Accreditation

There is a raging controversy at the moment between the Chairman of CHED and some presidents of private schools. A recent move of the CHED Chairman attempts to take control of the running of private accrediting associations.

Private accreditation of schools has been in existence in the Philippines for more than fifty years. Accreditation is defined as “a voluntary activity or process leading to the issuance of a certificate of accredited status by an organized body of educational institutions attesting to the quality or standards of a higher education institution or any of its educational programs, and to the effectiveness of the management and operations of the institution offering the program, as exceeding the minimum standards or criteria for government recognition as provided for in this Manual [of Regulations for Private Higher Education]." The Manual also says that accreditation "shall be voluntary in nature.”

Father Antonio Samson, S.J., President of Ateneo de Davao University and President of Philippine Accrediting Association of Schools, Colleges and Universities briefly relates the history of accreditation in the Philippines:

"Originally in 1957 the Philippine Accrediting Association of Schools, Colleges and Universities (PAASCU) was founded as a private cooperative effort among its dozen or so founding member-schools to improve the quality of education with the help of voluntary accreditation. In time, the government, through its Education agencies - Department of Education, Ministry of Education, Culture and Sports (MECS) , Department of Education, Culture and Sports (DECS) and the Commission on Higher Education (CHED) -- recognized the valuable work of PAASCU for improving the quality of education and extended schools by PAASCU various privileges and grants, including levels of curricular and administrative deregulation to autonomous status. This has given PAASCU a well-respected status, in the country as well as in the Asia-Pacific region and the world. After PAASCU, other private accrediting agencies were also established . . ."

Recently, however, CHED assumed the power to prescribe the governing policies, guidelines and requirements on accreditation including such details it may deem essential such as standardized accreditation fees, the composition of accreditors, and other matters internal to the associations.

It is elementary constitutional law that the power of the state over private education is merely one of “reasonable regulation.” Regulation is merely the power of a superior to insure that inferiors are acting within valid laws. Regulation is contrasted with the power of control which s the power of a superior to substitute his judgment for that of the inferior. CHED possesses no power of control yet he is attempting to exercise control.

It is also elementary constitutional law that individuals and groups have the right to form associations and that this right includes the prerogative of determining the direction of the association. CHED now wants to crash into private accrediting associations and dictate what directions they should take and how they should operate.

CHED claims to draw its power to impose its will on accrediting associations from Batas Bilang 232 and its implementing Rules as well as from RA 7722 creating the Commissin on Higher Education (CHED). CHED especially relies heavily on the detailed implementing Rules of Batas Bilang 232. Are these Rules valid?

It is elementary constitutional law that rules and regulations issued by administrative agencies are valid if three conditions are satisfied: (1) there is a law delegating rule making power; (2) the delegating law contains standards for the executive agency to follow; (3) the rules stay within the standards set by the delegating law.

What does Batas Bilang 232 say which the rules purport to implement? All it says is: “Section 29. Voluntary Accreditation - The Ministry shall encourage programs of voluntary accreditation for institution which desire to meet standards of quality over and above minimum required for State recognition.” Where is the delegated power to make rules for private accrediting associations? Where are the standards for the agency to follow?

CHED also relies on Section 8 of RA 7722, the law that gave it birth. Section 8(n) of the law authorizes CHED to “promulgate rules and regulations and exercise such other functions as may be necessary to carry out effectively the purpose and objectives of this Act.”

This leads us to ask what the “purpose and objectives of this Act” are. We find these in Sectiion 2 which contains the policy CHED is to follow: foster and promote affordable quality education; ensure and protect academic freedom; promote and foster continuing intellectual growth, research, effective leadership, promote high-level and middle-level professionals, and the enrichment of our historical and cultural heritage.

If we look at the powers actually given to CHED in Section 8, they have reference to CHED’s interest in the academic programs of educational institutions. Nothing there refers to a power of CHED over how private accreditation associations should be run. The whole law is a recognition of the function of CHED enunciated in Batas Bilang 232 which is to "encourage".

In fact, prior to the current CHED regime, CHED maintained “a policy environment, which enhances the private and voluntary nature of accreditation and protects its integrity . . . ” One naturally wonders what has brought about the current dictatorial tendency, and over private associations which have done so much at no public cost to improve the quality of Philippine education.

21 December 2009

After Martial Law. What?

Now that martial law has been lifted, what issues remain? There are remnants of the martial law declaration that remain to be sorted out.

For one, rebellion and murder charges have been filed. What happens to them? The lifting of martial law does not terminate these charges. Rebellion and murder are crimes under the Penal Code. Prosecuting them is distinct from the government's task of justifying the imposition of martial law.

One question, however, which is still being asked is whether the charge of rebellion absorbs murder such that a rebel can only be convicted of rebellion and not of a complex crime of rebellion with murder. (I was asked this question probably because, as an Inquirer item said, I have been teaching criminal law since 1962 – even when I was not yet a lawyer!) At any rate, the established answer to the question is that rebellion absorbs murder if murder was committed in furtherance of rebellion. However, if murder was committed for a different reason, such as in furtherance of reelection or for other motives, it is a separate crime.

The meaning of rebellion in the Penal Code has been amply discussed in a number of cases decided by the Supreme Court. If the rebellion charges continue to be pursued, I am hoping that there will be a clear statement of the meaning of "armed uprising" as an element of the crime. True, the current jurisprudential literature says that for armed uprising to exist there must be people running around and actual fighting in the streets. But there is also the view that if a known hostile armed group is operating in an area, what matters is not how the hostile forces are deployed but what effect they are achieving; that is, whether in fact they are achieving the aims of rebellion such as depriving the President or the legislature in whole or in part of their powers.

This is also related to the view I expressed that it is not at all clear that rebellion in the Constitution is the same as rebellion needed for conviction under the Penal Code. It is not unheard of for the Supreme Court to give to a word in a law a meaning different from what it gives to the same word in another law. For instance, in at least one decision the Court has said that "defamation, fraud, and physical injuries" in Article 33 of the Civil Code are not the same as the same words in the Penal Code. I am almost certain that there are other examples.

Could the same be said of rebellion in the Penal Code and rebellion in the Constitution? After all, the two laws have different objectives. The Penal Code seeks to deter and punish; the Article VII, Section 18 of the Constitution seeks to maintain public safety. We have had decisions defining the meaning of rebellion in the Penal Code as involving massive movements, but none regarding rebellion in the Constitution. In the one instance that martial law was declared under the 1935 Constitution, our Court merely yielded to the judgment of the President. Moreover, in political and historical literature, rebellion is presented as a wide spectrum of varying levels of disturbances.

With martial law lifted, however, there will be no occasion to discuss this academic issue.

Incidentally, and this is now probably also an academic matter, I have also maintained that the power of the Supreme Court over a declaration of martial law is more limited than that of Congress. Aside from being able to interpret the meaning of rebellion, the Court can only review “the sufficiency of the factual basis of the proclamation.” The Court cannot determine whether the choice of martial law is the correct solution to a factual situation.

Congress has a broader power. Even if the factual basis for the proclamation is sufficient, Congress may still revoke the President's decision. The Constitution does not limit the grounds upon which Congress may base revocation. However, the vote needed is a majority of all the members of Congress voting jointly. This does not seem to be easy of achievement in the present Congress.

But what is the reason for requiring joint voting? My recollection of the deliberations of the Constitutional Commission is that the thinking was that the House of Representatives would be more libertarian than the Senate and thus would be more likely to go against a President with authoritarian tendencies and, by superior numbers, would be able to revoke martial law. But as someone has said, the wisest plans of mice and men have gone awry!

There is also the speculation that the President might save her Ampatuan allies through amnesty. In fact, this is not the only speculation circulating about what the President might do! Indeed, the fact of the matter is that under the power of executive clemency the President can grant amnesty generally to political offenders, but only with the conformity of a majority of all the members of Congress. As to pardon, the President has almost unlimited discretion to grant pardon, but only to those who have been convicted by final judgment.

Finally, in a situation of martial law, there are quite a number of legally disputable matters. To my mind, however, one thing is certain, namely that the intensity of the opposition to martial law today and the abundance of dire speculation are due to a great extent to the fact that the President does not enjoy high credibility. And her decision to run for the House of Representatives has not served to enhance her credibility.

14 December 2009

PGMA's Martial Law

The massacre in Maguindanao has presented to the administration the challenge of having to find a solution that is at the same time constitutional and effective. The incident raises the question whether the 1987 Constitution, admittedly a reactive document, has armed the government with enough powers to deal with extraordinary challenges to peace and order and the protection of human lives.

I believe that the government will have to look for the solution to the problem within the parameters of the President’s Commander in Chief powers. These consist of three powers of graduated intensity: to call on the Armed Forces to suppress lawless violence or rebellion; to suspend the privilege of the writ with respect to specific crimes; and to impose martial law over the Philippines or over any part thereof.

Of these the most easily available is the power to call on the Armed Forces. But I am not surprised that the President has chosen the martial law option together with the suspension of the privilege of the writ. Who can reverse the President?

The Supreme Court can, so the new Constitution says. Martial law must be premised on the existence of public necessity brought about by actual rebellion or invasion. Hence the question that must be asked is whether rebellion exists. And what is rebellion?

The Penal Code says: “The crime of rebellion . . . is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.”

If the Penal Code is to be followed, the government would have to show that what is happening now satisfies the definition of rebellion as a criminal act. A crucial fact to verify would be whether there has been and there is an ongoing “rising publicly and taking arms against the Government” to achieve at least one of the enumerated goals.

But is rebellion as a criminal act defined in the Penal Code the same as rebellion for constitutional law purposes? My view is that it is not. My view is that the requirement of “rebellion” for purposes of constitutional law is satisfied if there exists an armed force whose activities have the effect of preventing the government from implementing its laws in any part of the Philippines?

Aside from the Supreme Court, Congress can also revoke the presidential proclamation by a majority vote of all the members of Congress in joint session assembled voting jointly.

But even if the requirement of rebellion is verified and thereafter martial law is declared in the lawless areas, the government will still have to contend with the safeguards introduced by the 1987 Constitution. These are safeguards inspired by the nation’s experience under martial rule. The 1987 Constitution now says: “A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.”

As for the suspension of the privilege of the writ, it can only be justified by the existence of the same factual situation that can justify martial rule. Moreover, suspension of the privilege has also been subjected to limitations by the 1987 Constitution which now says: “The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.”

A conclusion that can be drawn from all these is that the 1987 Constitution manifests great reluctance to allow the activation of martial law powers and of the power to suspend the privilege of the writ.

But it is not as if the Constitution has tied the hands of government in the face of lawlessness of the magnitude of the Maguindanao massacre and the political culture that has given rise to it. The Commander in Chief still has the ordinary executive power and the extraordinary power to call on the Armed Forces to suppress lawlessness.

The power to utilize the help of the Armed Forces is available now. Clearly, there has been lawless violence. Moreover, indications are that the threat of more lawless violence exists.

Recent jurisprudence, however, has clarified that, although the President can call on the help of the Armed Forces to accomplish what is essentially the peace and order task of the National Police, the act of calling on the Armed Forces gives her no new powers for carrying out law enforcement. For instance, it gives her no power to make arrests without warrant except in those instances where warrantless arrests are allowed. Nevertheless, the “calling out” power, in the hands of a skillful President, is still a potent weapon.

To fully utilize this power, however, she will need determined political will and the vigorous cooperation of the judiciary. Unfortunately, there seem to be reports that the government is desperately in search of judges who have the courage to issue warrants and prosecutors who can act where needed even in the face of threats to them or their loved ones.

In the face of all this, the President has chosen the martial law option. I do not see either the Supreme Court or Congress revoking her decision now. Moreover, if she asks for it, Congress can extend martial law beyond sixty days.

Meanwhile the nation will be watching how she exercises the flexible martial law powers which, as experience tells us, can easily be abused.

7 December 2009

Denying Holy Communion

I already wrote about this more than a year ago but, as election campaign again approaches, potential candidates who value their Catholic affiliation are asking about the same matter. It is no secret that some politicians do not agree with moral positions taken by some bishops and understandably they are concerned about what their bishio might do to them. Let me therefore rehearse what I said earlier.

What is the church law on this subject? I do not profess to be an expert in Canon Law. But what I have to say is what I myself follow. And when I first wrote about this, no Canon lawyer nor any bishop contradicted me. That probably says something.

Canon 915 of the Code of Canon Law enumerates three categories of persons who should be refused Holy Communion,: (1) those excommunicated through a penalty that has been imposed or declared; (2) those interdicted through a penalty that has been imposed or declared; (3) those who “obstinately persist in manifest grave sin.” Some explanation is necessary

First, what is the difference between an excommunicated person and an interdicted person? In general, an excommunicated person is excluded from the public life of the church. This would include holding church office or receiving the sacraments. An interdicted person, on the other hand, is one who is excluded only from certain liturgical functions.

How does one incur the penalties of excommunication or interdiction? According to church law, there are two ways of incurring a penalty: (1) automatically (or in church jargon latae sententiae) upon the commission of certain external acts clearly and specifically defined by law, and (2) upon the intervention of a competent ecclesiastical authority who declares officially and in legal form that a penalty has been imposed (ferendae sententiae).

What is important for purposes of refusal of Communion under Canon 915 is that the excommunication or interdiction must have been incurred not automatically but through an official imposition or declaration (ferendae sententiae). This means that to be legitimately refused Communion under Canon 915 there is need for a competent church authority (a bishop, a judge of an ecclesiastical court, a superior with respect to his subject through an extrajudicial or administrative act) to have issued a public instrument declaring that a penalty of excommunication or interdiction has been incurred by or imposed on a person. This should be a relatively rare case and would normally also be highly public and notorious.

The third category of persons who may be refused Communion under Canon 915 are those who “obstinately persist in manifest grave sin.” As one Canon lawyer wrote, “The description of the third category is bristling with qualifications; not ordinary run-of-the-mill sinners but sinners who persist; they do not merely persist, they obstinately persist; the sin is not only a grave sin, but one that is manifestly so.” In general, it would seem that such a case would be relatively rare. If I were a bishop, which I will never be, I would not be too eager to find a case fulfilling all these stiff requirements.

Usually placed under this category are people who may be cohabiting without benefit of the sacrament of marriage, or people who may have been divorced and are now living together on the strength of a civil marriage. One reason for excluding them is the fear that admitting them would give the impression that the Church is changing its teaching on the indissolubility of marriage.

But whether or not to exclude from Communion people in such marital relations is not always clear. There has been disagreement about the meaning of this third category. The disagreement has been around whether the subjective element of full knowledge and full consent, which is required for mortal sin, should also be considered for purposes of Canon 915. After all full knowledge and full consent are internal and beyond the knowledge of the minister administering Communion.

The authentic interpretation now seems to be that grave sin in Canon 915 is not the equivalent of mortal sin. Mortal sin requires full knowledge and consent which are known to the sinner himself but not to the minister who administers communion. For this reason the term “publicly unworthy” expresses better what is meant by persons who “obstinately persist in manifest grave sin.” The focus is on the external element of the act which can be known by the minister who administers communion. In other words, those excluded from communion must be “notorious public sinners.”

It should be remembered, moreover, that denial of communion is a restriction of a right. Hence, I would interpret the Canon strictly. Communion should not be denied if there is any doubt as to the fact of the sin, as to its notoriety or gravity, or as to the possibility that the person may have already been reconciled with the Church. Avoidance of scandal, after all, is not the supreme law of the Church. For my part, I would prefer a pastoral and not a confrontational approach. It must be kept in mind that church penalties are not intended to humiliate but to bring a person around to sorrow and contrition for sin.

Having said all that, I might be asked whether I would deny communion to legislators favoring the controversial bills on reproductive health. Let me just say that bishops themselves do not have a unanimous voice on the subject. I myself would not say that what legislators are doing now in a pluralist society is a manifestly grave sin enough to characterize the legislators as “notorious public sinners.”

30 November 2009