What’s wrong with Philippine higher education and its governance?

Second of 4 parts

IN terms of manpower complement, the Commission on Higher Education (CHEd) is supposed to be manned by career executive service officials both at the central and regional levels. The need for highly qualified specialists to backstop CHEd operations became an imperative considering the unique complexion of the agency as a policy making and developmental agency in higher education mandated to safeguard academic freedom, intellectual growth and scholarship and foster the highest levels of quality in shepherding the higher education sector, the CHEd should be at the forefront of implementing cutting-edge educational systems, technologies and delivery methods. Thus, the brain-power of the academe, industry and professional associations was tapped through the creation of technical panels of experts and advisors in various disciplines.

Developmental vs regulatory

But with the recent efforts at amending RA 7722, or the CHEd Law, it would seem that the developmental character of the agency is fast being shed in favor of an anachronistic regulatory skin reminiscent of the antiquated ways of the past. Is CHEd — an agency mandated with all those powers and functions — so helpless and lost in performing its functions that it needs to transform itself into a police-like agency with punitive and coercive powers to command respect and obedience to its memorandum orders? Or is it the people in the agency that is lacking in competence or leadership, if you will, to steer the sector to greater heights? What’s wrong with CHEd?

Closer scrutiny of the legislative bill (Senate Bill 2492) amending the CHEd charter does not augur well and might even clash with the philosophy of the creation of CHEd itself. In a nutshell, the role of CHEd is to supervise and coordinate the higher education institutions in the Philippines, as well as to develop and implement policies on tertiary education. The commission is tasked with formulating policies and programs that will ensure the continuous improvement of higher education in the Philippines, promote relevant and quality higher education, ensure access to quality higher education, and guarantee and protect academic freedom for continuing intellectual growth, advancement of learning, research, and development of responsible and effective leadership, and education of high-level professionals as well as the enrichment of historical and cultural heritages.

Policymaker or policelike regulator?

The CHEd as a policymaking body does not need quasi-judicial powers, unlike other agencies like the Professional Regulatory Commission (PRC), Security and Exchange Commission (SEC), or the Environmental Management Bureau (EMB), which are in the business of enforcing regulatory laws coupled with punitive actions. This fetish over regulatory and police-like posturing is probably a lingering influence of ancient times dating back to the days of the Department of Public Instruction created in 1901 through Act 74 and Act 2706 in 1917, known as the “Private School Law,” which made obligatory the recognition and inspection of private schools and colleges by the Secretary of Public Instruction so as to maintain a standard of efficiency in all private schools and colleges in the country. Amended by Commonwealth Act 180, passed on Nov. 13, 1936, wherein it was provided that the Secretary of Public Instruction was vested with the power to “supervise, inspect and regulate said schools and colleges in order to determine the efficiency of instruction given in the same.”

Just like the CHEd, the present DepEd and Tesda still practice this 1917 way of regulation and inspectorial functions. There have to be better ways of ensuring quality and effective standards of quality than just the inspectorial and regulatory modes in the 21st-century scenario.

Particularly, the very character of the higher education sector is imbued with the air of scholarship, academic freedom, institutional autonomy and similar tenets guaranteed by the 1987 Constitution, thus: Section 5 (2), Article XIV of the 1987 Constitution guarantees that academic freedom shall be enjoyed in all institutions of higher learning. According to case law, this institutional academic freedom includes the right of the school or college to decide for itself, its aims and objectives and how best to attain them free from outside coercion or interference save, possibly when the overriding public welfare calls for some restraint. The essential freedoms subsumed in the term “academic freedom” encompasses the freedom to determine for itself on academic grounds: (1) who may teach, (2) what may be taught, (3) how it shall be taught, and (4) who may be admitted to study. (Miriam College Foundation, Inc. v. Court of Appeals, 401 Phil. 431, 455-456; 2000).

Likewise, it is so provided in Article XIV, Section 4: “(1) The State recognizes the complementary roles of public and private institutions in the educational system and shall exercise reasonable supervision and regulation of all educational institutions.” Therefore, an overly strong CHEd is not within the contemplation of the Constitution since the exercise of quasi-judicial powers is anathema to reasonable supervision and regulation and will invariably clash with this constitutional guarantee. The exercise of the quasi-judicial powers, along with the compulsion, enforcement and coercive process appurtenant thereto, amounts to control that was already substituted by reasonable supervision and impugned by the intent of the framers when the 1973 Constitution was amended, to wit:

‘Reasonable supervision’

“The Framers were explicit, however, that this supervision refers to external governance, as opposed to internal governance, which was reserved to the respective school boards, thus: Madam President, Section 2(b) introduces four changes: one, the addition of the word “reasonable” before the phrase “supervision and regulation”; two, the addition of the word “quality” before the word “education”; three, the change of the wordings in the 1973 Constitution referring to a system of education, requiring the same to be relevant to the goals of national development, to the present expression of “relevant to the needs of the people and society’; and four, the explanation of the meaning of the expression “integrated system of education” by defining the same as the recognition and strengthening of the complementary roles of public and private educational institutions as separate but integral parts of the total Philippine educational system.

When we speak of State supervision and regulation, we refer to the external governance of educational institutions, particularly private educational institutions, as distinguished from the internal governance by their respective boards of directors or trustees and their administrative officials. Even without a provision for external governance, the State would still have the inherent right to regulate educational institutions through the exercise of its police power. We have thought it advisable to restate the supervisory and regulatory functions of the State provided in the 1935 and 1973 Constitutions with the addition of the word “reasonable.” We found it necessary to add the word “reasonable” because of an obiter dictum of our Supreme Court in a decision in the case of the Philippine Association of Colleges and Universities v. The Secretary of Education and the Board of Textbooks in 1955. In that case, the court said, and I quote: ‘It is enough to point out that local educators and writers think the Constitution provides for control of education by the State.’

The Solicitor General cites many authorities to show that the power to regulate means power to control and quotes from the proceedings of the Constitutional Convention to prove that State control of private education was intended by organic law.

The addition, therefore, of the word “reasonable” is meant to underscore the sense of the committee that when the Constitution speaks of State supervision and regulation, it does not in any way mean control. We refer only to the power of the State to provide regulations and to see to it that these regulations are duly followed and implemented. It does not include the right to manage, dictate, overrule and prohibit. Therefore, it does not include the right to dominate. (Council of Teachers and Staff of Colleges and Universities of the Philippines v. Secretary of Education. See GRs 216930, 217451, 217752, 218045, 218098, 218123 and 218465, Oct. 9, 2018).

To be continued

Julito D. Vitriolo, PhD is a lawyer and former executive director 4 at CHEd. Dr. Jose D. Lacson is a former director-general of the National Manpower and Youth Council and the founding directorgeneral of Tesda.