Monday, January 25, 2010

CHED Dialogue REsumed

I received a letter from CHED dated 2 January 2010. It is signed by the Chairman and three Commissioners. I understand that a fourth Commissioner refused to sign the letter for reasons I understand perfectly. Nonetheless I must accept the majority vote as representative of the Commission’s collegial thinking. I propose to comment on three points mentioned in the letter.

1. Collegiality. The letter says: “While we admit that the Commission is a collegial body, such principle only applies to the policy making functions of the Commission.” Collegiality does not apply to “administrative matters, which are solely vested in the Chairman as the head of the instrumentality.” This, the letter says, is explicit in the Administrative Code.

My comments:

a. I still hope to be able to understand how administration and policy making can be surgically separated. My understanding is that the function of administration or management is precisely to carry out policy decisions. In my view, without the policy decisions there is nothing significant to administer. Thus, for instance, if an administrative order is issued saying that there should be CHED regional games or that regional directors should be shuffled, I would assume that these are in implementation of policy decisions made en banc.

b. It would be enlightening for everyone if the Commissioners can give examples of “administrative matters” which they have placed exclusively in the hands of the Chairman. I have the nagging suspicion that what might be involved here is unconscious dereliction of duty on the part of the Commissioners. If it is, it defeats collegiality. And to think that the Commissioners are all Ph.D holders!

c. The letter appeals to explicit exclusive authority of the Chairman found in the Administrative Code of 1987. I am fairly familiar with the 1987 Administrative Code but I must admit that, after combing the Code with my Mac’s search engine, I have not found the express provision referred to. In fact, CHED, unlike the case of other agencies, is not mentioned in the Code at all. CHED is governed by a special law, RA 7722.

I would be happy to be shown that I am wrong. But, the Commission’s view seems to contradict the Rules and Regulations implementing RA 7722 prepared by the duly authorized Transitory Body which says: “The Commission shall, in all cases, act as a collegial body. For purposes of a quorum, there shall be a majority of all the members or three commissioners present. The Chairman may vote to create or break a tie.”

d. This is not in the letter, but the lone dissenting Commissioner says that the Chairman now decides what are policy matters and what are administration matters. Is this true? If true, I suggest with due respect a contrary view: namely that deciding what matters belong to policy to be dealt with by the CHED en banc and what matters belong exclusively to the Chairman is itself a policy matter which should be decided en banc. I would be highly disappointed if the Commissioners supinely submit to the Chairman on this matter. After all, the powers of the Commission are expressly vested by RA 7722 in the Commission as a body and not just in the Chairman.

2. Advisory Body. A second point is about the Advisory Body mandated by RA 2277. Section 7 of RA 7722 says: “There shall be constituted a Board of Advisers 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 law further enumerates the department heads who should be members of the body. Added to them are the President of the Federation of Accrediting Association of the Philippines (FAAP) and the President of the Fund for Assistance to Private Education (FAPE).

About this matter the letter of the Commissioners says: “Currently, we are of the impression that there is no compelling reason to convene them for consultation with regard to transcendental policies [sic] which might require their assistance. However, rest assured that the Board will be convened once a year pursuant to law.”

My comment:

Since by law the annual convening of the Board of Advisers is mandatory, I am sure that school administrators will be elated by the assurance that the Board “will be convened once a year pursuant to law.”

3. Private Accreditation Bodies. I already wrote a full article on this two weeks ago in the Inquirer saying that CHED has no legal authority over private accrediting agencies. The latest on this, however, is that a draft of Guidelines for accreditation has been circulated. Is the Chairman trying to provoke a fight?

Incidentally, a columnist-lawyer attacked “virulent me” for criticizing the views of the CHED Chairman who in his judgment is a model of democratic behavior. I would have wished that the lawyer columnist had bothered to use his legal skills to analyze the legal issues and thereby offer some light on the matter.

Final comment:

Let me just say that I have been commenting on the work of CHED not as a school administrator but merely as one who has devoted a major portion of my professional life to education. Because I am not a school owner or a school administrator, if I should “go to war” and question before proper authorities what CHED is doing, my legal standing to question CHED might be challenged. But School administrators would certainly have the required jus standi. Alternatively, they might push for a public hearing in lieu of or preparatory to filing a case.

But then concerned school administrators might just want to wait things out until July 20, 2010 when, if matters are allowed to follow their normal course, there should be a change in the composition of the Commission under a new President! It would be an astonishing legal miracle if the current President were allowed to fill vacancies which will occur after her term.

25 January 2010

Wednesday, January 20, 2010

The Comelec on Estrada Reelection

The second division of the Comelec has decided that Joseph Estrada may run for reelection. As one Commissioner put it, the better policy is to let the people decide.

On the basis of that reasoning the Comelec should let Ely Pamatong run and lent the people decide!

But consider instead the following:

The subject was debated upon on July 25, 1986 as part of the consideration of the term of various elective officers. The Commission was presented with three possible options regarding the President’s term: (1) no immediate reelection; (2) no re-election; (3) unlimited number of reelections.

“No immediate reelection” meant the possibility of reelection after some interruption. Unlimited number of reelections meant just that. But what did “no re-election” mean? The following exchange took place:

BISHOP BACANI: I would like a clarification first. Does “No reelection” mean the President can never be reelected?

THE PRESIDENT [Cecilia Muñoz Palma]: I believe the motion is just for non-reelection, is it not?

MR. ROMULO: No reelection.

THE PRESIDENT: But it does not say forever.

MR. ROMULO: The meaning of no reelection is that the person can never run again – absolute ban.

BISHOP BACANI: Therefore, if she ceases from office she cannot run even after six years.

THE PRESIDENT: Even after?

BISHOP BACANI: That is the understanding. Thank you.

When the choices were finally put to a vote, 32 voted in favor of “no immediate reelection” and only 5 against.

Before the day’s session ended, however, Commissioner Ambrosio Padilla moved for a reconsideration of the decision. His motion to reconsider was approved 22 to 5.

In the ensuing debate, Commissioner Padilla was the main proponent of a perpetual ban on reelection while Commissioner Francisco “Soc” Rodrigo sought the retention of the original vote for “no immediate reelection.”

Before a vote was taken on the subject, the presiding officer made sure that the meaning of Padilla’s proposal was clear to all:

THE PRESIDENT: So, the effect of this is, the President will serve for six years without reelection. That carries a total ban on his being elected again at any future time to the position of President.

MR. PADILLA: That is a correct. It is a continuing prohibition for reelection.

Before the Commissioners cast their ballot, the President reiterated her clarification:

THE PRESIDENT: The vote will be “yes” if one is in favor of Commissioner Padilla’s proposal or “no” if one is against.

Forty-two (42) Commissioners cast their ballot. After the ballots were counted, the President made the announcement:

THE PRESIDENT: The results show 26 votes in favor, 15 against and 1 abstention; the proposal that the President will serve a six-year term without reelection at any time is approved.

That was not yet the end, however. Commissioner Serafin Guingona, who was the only one who had abstained in the voting on Padilla’s proposal, did not think that the matter was over.

MR. GUINGONA: I beg the Chair’s indulgence to present my proposal.

THE PRESIDENT: Commissioner Guingona is recognized.

MR. GUINGONA: My proposal is that the President shall be elected for a term of six years and may run for one reelection immediately after his term, provided that no President may serve for more than 12 consecutive years.

In effect, Guingona was asking for a reconsideration of the vote favoring Padilla’s proposal for a total ban. The body considered it a reconsideration and voted 31 against and 10 in favor.

The final action on the presidency, however, did not come until the body deliberated on the draft article on the executive department. The draft evidently had been prepared before the Commission could finish its consideration of the term of office of various national elective officials. Hence the draft still contained the following provision on the President: “He shall be disqualified from immediate reelection.”

On July 29, 1986, Commissioner Lorenzo Sumulong, in his sponsorship speech on the draft, pointed out that the word “immediate” should no longer be there. On July 30, during the period of amendments, Commissioner Hilario Davide, Jr proposed what is now the final version: “The President shall not be eligible for any reelection.” He explained his amendment thus: “The purpose of this amendment is to be consistent with what the body had approved in the matter of the term of the President.”

Before the final approval of the Davide amendment there ensued the following exchange:

MR. [FLORENZ] REGALADO: May we inquire from Commissioner Davide why he proposes that the President shall be completely ineligible for any future elective office lower than the presidency? . . . Would it not be possible that perhaps a former President may wish to share his talents and experience with the people by running for a lower position like that of a Senator?

MR. DAVIDE: He can. He is only banned from reelection, meaning to the same office, but not from running for any office. So the wording is very clear: “THE PRESIDENT shall be INELIGIBLE FOR ANY reelection.”

I am sure that by now Ambassador Davide has already heard that not a few refuse to see the matter as very clear. As for me, it is at least very clear that a former President, male or female, is qualified to run for Congressman, Senator or Vice-President!

But, wait! Is there an exception from the total ban in favor of an elected President who, for whatever reason, may have served for less than a full tenure? All I know is that no such exception was discussed or even proposed. There was no discussion whatsoever of length of tenure, but only of length of term.

21 January 2010

Saturday, January 16, 2010

An End to "Midnight " Appointments

I had originally planned to continue my dialogue with CHED on the issue of collegiality, but the issue of who should appoint the next Chief Justice has grown more sexy. Collegiality can wait.

Since, however, there are so many issues involved regarding the appointment of a Chief Justice after CJ Puno retires on May 17, I shall write in telegraphic style.

-- It is important to remember that the prohibition against appointments two months before a presidential election until the end of the incumbent’s term was inspired by the reprobation by the Supreme Court of President Garcia’s scandalous “midnight appointments” before President Diosdado Macapagal assumed office.

-- But the prohibition against midnight appointments in Article VII is general, whereas the command in Article VIII to fill the vacancy in 90 days is special to the Supreme Court. An accepted principle is that a special law creates exception to a general law.

-- But again Article VII is in negative language, whereas Article VIII is positive. Another accepted principle is that negative language carries stronger weight in law than positive.

-- However, when laws are apparently in conflict, jurisprudence also says that efforts should be made to give effect to both when possible. Is reconciliation possible?

-- Yes, it is possible. The prohibition against appointment starts March 10 and lasts only until June 30; the period for filling a vacancy (90 days) lasts until August 17. The new President will therefore still have about 45 days after June 30 to make the appointment. Both Article VII and Article VIII can have effect.

-- The original period proposed for filling vacancy in the Supreme Court was 60 days; it was extended to 90 days without debate. [See Constitutional Commission deliberations.] Thus even the Constitution believes that the vacancy can wait 90 days. There is no rush to amend the Constitution now.

-- Moreover, according to the Aytona case (1962) and the Valenzuela case (1998), when the president-elect is known, the authority of the incumbent is only to ensure an orderly transfer of power. Call it an argument from morality or delicadeza. Under the automated elections, we should know who the next President will by May 17 or soon after.

-- The power to appoint is activated only when a vacancy occurs. Vacancy will occur only on May 17. But by then President Arroyo will only have power to make temporary appointments in the executive department. (Speaker Nograles’ contrary view is a premature attempt to amend the Constitution.)

-- Appointment is a two-way street: it involves offer and acceptance. A justice who accepts a prohibited appointment is complicit in the violation of the prohibition and opens himself or herself to impeachment for culpable violation of the Constitution.

-- Appointment to fill an anticipated vacancy is valid only if the person making the appointment still has the power when the vacancy occurs.

-- The President can appoint only from a list given by the JBC. Cory Aquino made appointments without a JBC list, as Senate President Enrile correctly recalls, but only when there was as yet no JBC.

-- The JBC is duty bound to submit a list, but only when there is a vacancy, not necessarily sooner.

-- However, the JBC has no authority to decide whether Arroyo can appoint or not. The JBC can only prepare a list for whoever has authority to appoint. The JBC is not the Supreme Court.

-- In substantive issues, the Chief Justice has only one vote out of fifteen. In administrative matters, the CJ’s absence can be handled, and has always been handled, internally by the other justices of the Supreme Court through a designated temporary presiding officer. To say that the fourteen remaining justices will not be able to temporarily run the Supreme Court properly without a Chief Justice is to insult all of them, one of whom will almost certainly be the next Chief Justice.

-- Problems that can arise during the coming elections do not necessarily need a Chief Justice. (1) Administrative matters go to the Comelec first. (2) Contests in local elections go to local courts first or to the Commission on Elections. (3) Contests in congressional elections go to the Senate or House Electoral Tribunals where a Chief Justice does not participate. (4) Presidential election contests go to the Supreme Court; but the Chief Justice is not the Supreme Court. At most his is only one vote out of fifteen. (5) The same can be said about appeals to the SC of election cases. The quorum of the Court en banc is only eight, not fifteen.

-- The only instance I can think of where the presence of the Chief Justice might be indispensable is when the President is on trial on impeachment. But I cannot see that coming any time soon.

-- What is dangerous for the nation is not the temporary absence of a Chief Justice but the possible conversion of the Supreme Court into a play-thing of political powers. The Supreme Court itself should resist this. The Supreme Court boat is already listing weighted as it is by, among others, threatening endless reconsideration of decisions.

-- My suspicion arising from all of this is that the rush to appoint a Chief Justice before the swearing in of a new President is being orchestrated, out of unfounded fears or unstated political reasons, by forces in and around the Palace.

-- A final word. Those who want President Arroyo to appoint the next Chief Justice might attempt to persuade CJ Puno to retire much earlier than two months before the elections. That would not be a solomonic solution but an unwelcome political solution. I doubt that CJ Puno would want to leave that as his legacy after a distinguished career in law.

18 January 2010

Saturday, January 9, 2010

Dialoguing with CHED

I have received a letter from CHED Chairman Emmanuel Angeles commenting on my article on CHED and “martial law.” (Inquirer, 12. 21). [Incidentally I have a vague recollection that the Chairman started law studies at the Ateneo about my time.] I thank him for his letter and especially for the opportunity to dialogue with him on matters of great concern for us educators. The Chairman himself has published his letter by sending copies to various education offices.

First of all Chairman Angeles clarifies that whatever power CHED exercises over accrediting associations comes from Executive Order 705-A. A portion of the EO says that accrediting associations “shall not be subjected by the Commission on Higher Education (CHED) under process of institutional Quality Assurance and Monitoring and evaluation (IQUAME), provided that these accrediting agencies conform with a set of common standards formulated by a Coordinating Council (CCA), hereafter to be established by the CHED.”

Unfortunately the Chairman failed to notice that whoever formulated EO 705-A worded it very carefully. The text says that the standards would be formulated not by CHED but by the CCA consisting of representatives of private accrediting associations. The standards, in other words, would be a form of self-regulation by the accrediting associations, i.e., if they freely agree to do it. CHED would then serve merely as a conduit for the standards. Thus EO 705-A itself in effect recognizes that CHED has no authority over private accrediting associations.

I know that the DOJ, distracted perhaps by martial law concerns, released a sloppily written opinion in favor of CHED on this. [The opinion was probably drafted by CHED itself.] I have to ask the DOJ how they could create CHED powers out of nothing!

But for those who wept on my shoulder suggesting to me that CHED was imposing "martial law" on accrediting associations, Chairman Angeles has this to say: "To my knowledge, Father, CHED has not issued any governing policies, guidelines and requirements that mandate standardized fees, composition of accreditors, etc."

Two comments: First, a letter dated 14 January 2009 asks accrediting associations "to suspend upcoming accreditation activities . . . until the Coordinating Council for Accreditation (CCA) has formulated the standards and instruments for accreditation." [Rightly, accrediting associations have ignored this.] Second, the letter to me now seems to signal accrediting associations to proceed as before, but only until further orders. I say “until further orders” because the Chairman immediately adds: “Such guidelines, I hope, will be recommended to the Commission by the CCA in the near future as I requested.” What this addendum means is that the Chairman sees the CCA not as a self-regulatory body but merely as a recommendatory body with CHED or the Chairman making the final decision.

I have difficulty with this. First, EO 705-A itself implicitly recognizes that CHED has no power over accrediting associations. Second, I have not seen any law giving to CHED power over accrediting associations. It is a basic principle in law that public officers, whether individual or collegial, have only such power as are given to them by law. Not even the President can increase the power of CHED. If CHED’s power is to be increased, it has to be done by Congress.

The Chairman proceeds in his letter with some observations about the performance of accrediting associations. Let me enumerate:

1. He says: “After 52 years of accreditation, only 8.4% of our total programs in the country are accredited!”

Could it be that the fault is not in the accrediting system but in the educational system?

2. “Accreditation is expensive. . . . Some accreditors demand five-star accommodations not only for themselves but for their families as well.”

This is a serious accusation which accrediting agencies must address.

3. Transparency is indeed important in the accreditation system; a more rigorous training program for accreditors is also desired.

4. It is also important that schools properly understand the criteria, goals and objectives of program accreditation.

A penultimate remark of the Chairman says: “On the issue of ‘control by CHED’ that you raised, it is quite obvious that the situation on accreditation has deteriorated according to school heads because ‘CHED in the past did not exercise control on the accreditation process in spite of the generous subsidy provided to the accrediting agencies.’

It is unfortunate that there might be some “school heads” who supinely would surrender the power of control to CHED. The Boards over which such school heads preside must investigate such betrayal.

Finally, the Chairman says: “In the future, I would be most grateful if you could contact me for elaboration on certain matters in the jurisdiction of CHED which is [sic] of interest to you before publishing it. I am open to dialogue anytime.”

I appreciate the invitation, but, as things stand now, the matters that interest me are not my interests alone. They are of great importance especially to the entire education community.

What is urgently needed is a public hearing and airing of CHED issues. Even the Chairman’s letter to me already contains rich material for public discussion. Private dialogues about matters of public concern can have the unwelcome result of burying important issues under dimmed memory or under a false cloak of executive privilege. Hence they should not be relegated to the level merely of matter for friendly private dialogue.

P.S. I have received a letter from CHED about collegiality but space limitations do not allow me to comment on it now.

11 January 2010

Saturday, January 2, 2010

The Popes on Peace and Ecology

One looking for a Catholic commentary on the social doctrine of the Constitution can find it in the writings of recent Popes. As is well known, recent Popes have written encyclicals which contain profound observations and exhortations about life in the modern world. In 1967 Pope Paul VI came out with his “Populorum Progessio,” (“On the Development of Peoples” } 1967) and his successor John Paul VI came out with “Sollicitudo Rei Socialis,” (“The Social Concerns of the Church”). Both documents might as well be commentaries on the social justice provisions of the Constitution.

He had barely warmed his seat when in 2006 Pope Benedict XVI published “Deus Caritas Est,” (“God Is Love,”) where he articulated the role of Christian love in society. It also included a significant statement on the role of the Church in the political arena, a statement which those who wish to instrumentalize the church for politics should note. He said: “The Church cannot and must not take upon herself the political battle to bring about the most just society possible. She cannot and must not replace the State. Yet at the same time she cannot and must not remain on the sidelines in the fight for justice. She has to play her part through rational argument and she has to reawaken the spiritual energy without which justice, which always demands sacrifice, cannot prevail and prosper. A just society must be the achievement of politics, not of the Church. Yet the promotion of justice through efforts to bring about openness of mind and will to the demands of the common good is something which concerns the Church deeply.”

This was followed by "Caritas in Veritate" ("Charity in Truth") released last June. The encyclical ranges across various topics including family life, globalization, the financial crisis, labor, technology and the environment.

In writing about the environment, Pope Benedict was almost poetic. He noted “that integral human development is closely linked to the obligations which flow from man’s relationship with the natural environment. The environment must be seen as God’s gift to all people, and the use we make of it entails a shared responsibility for all humanity, especially the poor and future generations. . . Whenever nature, and human beings in particular, are seen merely as products of chance or an evolutionary determinism, our overall sense of responsibility wanes. On the other hand, seeing creation as God’s gift to humanity helps us understand our vocation and worth as human beings. With the Psalmist, we can exclaim with wonder: ‘When I look at your heavens, the work of your hands, the moon and the stars which you have established; what is man that you are mindful of him, and the son of man that you care for him?’ (Ps 8:4-5). Contemplating the beauty of creation inspires us to recognize the love of the Creator, that Love which ‘moves the sun and the other stars’”.

Recently, on December 8, 2009, in his message for the World Day of Peace, January 1, 2010, amidst the ambivalent results of the Copenhagen conference, he wrote about creation and eloquently entitled the document “If you want to cultivate peace, protect creation.” Noting the direction being taken by government policies, multinational corporations and even by individuals, he asked, “Can we remain indifferent before the problems associated with such realities as climate change, desertification, the deterioration and loss of productivity in vast agricultural areas, the pollution of rivers and aquifers, the loss of biodiversity, the increase of natural catastrophes and the deforestation of equatorial and tropical regions?”

Pope Benedict is not the first Pope to warn against the possible effects of abusing creation. Already on 1971, on the eightieth anniversary of Leo XIII’s Encyclical Rerum Novarum, Paul VI pointed out that “by an ill-considered exploitation of nature (man) risks destroying it and becoming in his turn the victim of this degradation”. He added that “not only is the material environment becoming a permanent menace – pollution and refuse, new illnesses and absolute destructive capacity – but the human framework is no longer under man’s control, thus creating an environment for tomorrow which may well be intolerable. This is a wide-ranging social problem which concerns the entire human family”.

John Paul II, in his Message for the World Day of Peace twenty years ago, emphasized our relationship, as God’s creatures, with the universe all around us. “In our day,” he wrote, “there is a growing awareness that world peace is threatened … also by a lack of due respect for nature”. He added that “ecological awareness, rather than being downplayed, needs to be helped to develop and mature, and find fitting expression in concrete programmes and initiatives”.

Benedict XVI echoes John Paul II in calling for a “greater sense of intergenerational solidarity.” “We have inherited from past generations, and we have benefited from the work of our contemporaries; for this reason we have obligations towards all, and we cannot refuse to interest ourselves in those who will come after us, to enlarge the human family. Universal solidarity represents a benefit as well as a duty. This is a responsibility that present generations have towards those of the future, a responsibility that also concerns individual States and the international community.”

4 January 2010