On CHED Memorandum Order No. 46 s. 2012 (part one)

CHED’S AUTHORITY

CHED’S legal mandate to oversee matters involving education is based on Section 8 of Republic Act No. 7722otherwise known as the Higher Education Act of 1994 which provides:

SEC. 8. Powers and Functions of the Commission. – The Commission shall have the following powers and functions:

a) formulate and recommend development plans, policies, priorities and programs on higher education and research;

b) formulate and recommend development plans, policies, priorities and programs on research;

c) recommend to the executive and legislative branches, priorities and grants on higher education and research;

d) set minimum standards for programs and institutions of higher learning recommended by panels of experts in the field and subject to public hearing, and enforce the same;

e) monitor and evaluate the performance of programs and institutions of higher learning for appropriate incentives as well as the imposition of sanctions such as, but not limited to, diminution or withdrawal of subsidy, recommendation on the downgrading or withdrawal of accreditation, program termination or school closure;

f) identify, support and develop potential centers of excellence in program areas needed for the development of world-class scholarship, nation building and national development;

g) recommend to the Department of Budget and Management the budgets of public institutions of higher learning as well as general guidelines for the use of their income;

h) rationalize programs and institutions of higher learning and set standards, policies and guidelines* for the creation of new ones as well as the conversion or elevation of schools to institutions of higher learning, subject to budgetary limitations and the number of institutions of higher learning in the province or region where creation, conversion or elevation is sought to be made;

i) develop criteria for allocating additional resources such as research and program development grants, scholarships, and other similar programs: Provided, That these shall not detract from the fiscal autonomy already enjoyed by colleges and universities;

j) direct or redirect purposive research by institutions of higher learning to meet the needs of agro-industrialization and development;

k) devise and implement resource development schemes;

l) administer the Higher Education Development Fund, as described in section 10 hereunder, which will promote the purposes of higher education;

m) review the charters of institutions of higher learning and state universities and colleges including the chairmanship and membership of their governing bodies and recommend appropriate measures as basis of necessary action;

n) promulgate such rules and regulations and exercise such other powers and functions as may be necessary* to carry out effectively the purpose and objective of this Act; and

o) perform such other functions as may be necessary for its effective operations and for the continued enhancement, growth or development of higher education.

(emphasis and underscoring supplied.)

APPLYING RULES ON STATUTORY CONSTRUCTION

A perusal of the above-mentioned provision reveals that that primary nature of CHED’s authority anent higher educational institutions, specifically that of private higher educational institutions, appears to be recommendatory and supervisory in nature. This contemplates an exercise of powers only to see to it that educational institutions perform their duties in accordance with the objectives enshrined in the declaration of Policy of Republic Act 7722, and in relation to the minimum standards set forth in section 8 of the same law.

The controversy lies in the fact that most promulgations issued by the CHED have been advanced in the view that it supposedly possesses a range of regulatory powers anchoring the same on par. n and o of sec. 8 of RA 7722.

However, these are “catch all provisions” which, being over-broad in nature, have to be seen in the context of the intent of the framers of the law as well as the over-all provision in which it is contained. It is in fact, a cardinal rule of construction that a statute should be read as a harmonious whole, with its various parts being interpreted within their broader statutory context in a manner that furthers statutory purposes.

Justice Scalia a noted luminary in the US Supreme Court, has aptly characterized this general approach.  “Statutory construction . . . is a holistic endeavor.  A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme — because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Savings Ass’n v. Timbers of Inwood Forest Associates, 484 U.S. 365, 371 (1988)

What Justice Scalia has pronounced in that US Supreme Court case was simply a reiteration of an earlier ruling in 1850 by US Supreme Court Chief Justice Taney and  the principle holds true even in Philippine context: “In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.

The Latin phrase ejusdem generis used in the general rules on statutory instruction also instructs that, “where general words follow an enumeration of specific items, the general words are read as applying only to other items akin to those specifically enumerated.”

Simply stated otherwise, where a statute, by its own terms, is expressly limited to certain matters, it may not be interpreted or construed as to extend to other matters.[1] This must be so, as the principle proceeds from the premise that legislature would not have made specified enumerations in a statute had the intention been not to restrict its meaning and confine its terms to those expressly mentioned.[2]

Thus, a re-reading of section 8 of RA 7722 definitely begs the question – what indeed is the nature of CHED’s powers with respect to private HEIs?

It is not disputed that section 3 of RA 7722 provides for the coverage of the CHED’s authority as extending to both public and private higher educational institutions. However, the law appears to be silent on the extent or coverage of CHED’s authority with respect to private higher educational institutions. How far can the CHED exercise this authority over private HEIs go without trampling on the equally protected academic freedom of private HEIs as well as their vested proprietary rights?

Inasmuch as there is no definitive DOJ Opinion[3] or an authoritative Supreme Court Decision that accurately answers this legal question, it therefore open to this legal interpretation:

At a glance, it would seem that Section 8 of RA 7722 leans toward a recommendatory or supervisory function. Any regulation issued by it must be pursued only in accordance with its recommendatory function – especially where private HEIs are concerned.

This being the case, one has to err on the side of caution in advancing the theory that on basis of these provisions, CHED can now haphazardly regulate private higher educational institutions with its enactments. Moreso, when these enactments (i.e. CMO 46, s. 2012) stem from what has been clearly admitted as an “imperfect plan.” (Page 4, CHED Commissioner Licuanan’s letter.)  Any excess in its actions can readily be construed as an undue restriction of a private HEI’s legally protected rights and is manifestly an excessive exercise of the authority granted by law unto CHED.

 (to be continued) 


[1] Hongkong & Shanghai Bank vs. Peters, 16 Phil. 824 [1910]; Collanta vs. Carnation Phil., Inc. 145 SCRA 268 [1986].

[2] Agpalo, Ruben E.  STATUTORY CONSTRUCTION.  Manila, Rex Book Store [1990 2nd ed.], p. 161.

[3] The Department of Justice Opinion dated January 12, 2009 and its earlier issuance dated November 24, 2008 (attached to the CHED letter dated 12 December 2012) pertaining to the inquiry of CHED relative to the extent and inquiry of its authority is confined only to State Colleges and Universities (SUCs) and Local Colleges and Universities created/established by local government units – in other words, only with respect to PUBLIC higher educational institutions, and thus poses no relevance or bearing to the discussion at hand relative to the applicability of CHED’s scope of authority over private educational institutions.

About these ads

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s