Governance, Law

The long road to FOI

Six centuries ago, Johannes Gutenberg’s printing press accelerated the spread of information, to put it quantitatively, by a factor of a thousand. A century ago, Alan Turing’s digital computer speeded it up further by a factor of a million.

The upshot? We now live in a wired, networked, global world.

Most countries have readily become comfortable with and even thrive in the idea of openness and free flow of information. As of April 2010, at least 80 states have enacted into law the right of, and procedures for the public to request and receive government-held information. Sweden was the first to enact a right to information law in 1766, followed by Finland much later in 1953, and by the United States in 1966.

Like a shaft of sunlight

In the Philippines, however, Congress is taking it ever so slowly to legislate freedom of information (FOI), a right that is already guaranteed in the Constitution.

Article II, Section 28 of the 1987 Constitution directs the national government to adopt and implement a policy of full public disclosure of all its transactions involving public interest. This mandate is amplified in Article III, Section 7 which recognizes the right of the people to information on matters of public concern. It also affords the citizens access to official records, documents, and papers pertaining to official acts, transactions or decisions, as well as to government research data used as basis for policy development.

Quoting US Supreme Court Justice Louis Brandeis, who said that “sunlight is the best disinfectant,” Prof. Solomon F. Lumba of the UP College of Law compared the transparency provisions in the Constitution to sunlight on a cloudy day.

“We need to part the clouds in order to let the sunlight in and dispel the shadows that hide the many vampires, goblins and aswangs in government,” he said. “This is essentially what an FOI law does. It makes effective the transparency provisions in the Constitution; it allows ‘sunlight’ to do what it naturally does—disinfect.”

The FOI bill came very close to getting enacted on June 4, 2010 or on the last day of the 14th Congress. Although the bill was right on top of the legislative agenda, it was not ratified as the House of Representatives failed to reach a quorum with only 128 lawmakers in attendance.

Proponents of the FOI found a new champion in President Benigno Aquino III who, during the May 2010 elections, ran on the platform of transparency and accountability. In his campaign sorties, he repeatedly assured voters that he would support their right to information. But last February 28, at the Legislative-Executive Development Advisory Council meeting, the President submitted a list of 17 priority legislative measures, with the FOI bill noticeably missing.

Lumba found ironic President Aquino’s decision to backtrack on the FOI since the latter voted for the bill when he was still a senator. Lumba said that the non-inclusion of the FOI bill in the  Palace priority list “certainly makes the campaign more of an uphill climb. Like it or not, the realpolitik is that some legislators, especially in the House, take their cue from the President. If he’s not fully committed to passing the bill, then you can’t expect these legislators to stick their necks out for it, too.”

Ryan Oliva, a senior student at the UP College of Law and convenor of the Student Initiative for Legislation on Access to Information by the Public (SILIP), agreed. “We all know that the President, through his ruling party in Congress, can make things possible. President Aquino’s decision not to include the FOI bill in his list of priority measures will slow down our right to information campaign.”

Proposals, counter-proposals

Malacañang has raised concerns about the FOI measure being open to abuse and misuse. At a press briefing on February 28, Presidential Spokesperson Edwin Lacierda announced that the government is currently conducting an inter-agency review of the bills pending in Congress and, at the same time, studying the US Freedom of Information Act and the UK Official Secrecy Act. Based on its findings, he said, the Palace will draft its own version of the bill, addressing such concerns as striking a balance between the individual’s right to privacy and the public’s right to information.

Lumba, who is also affiliated with the Right to Know Right Now! Coalition, a 150-member network of organizations and individuals from various sectors, welcomed Malacañang’s proposal to create an Information Committee. “The United Kingdom, for example, has an independent Information Commissioner’s Office to uphold information rights. It should be noted, however, that a similar proposal was made a few Congresses ago but was shot down by some legislators because it would add to the bureaucracy. But structurally speaking, it is really the best way to go.”

A provision on the protection of whistleblowers, according to Lumba, is also a good idea. He clarified, however, that a whistleblower bill is already going through a separate legislative process.

The Palace also wants to review the verbiage of national security exception from disclosure in the FOI bill. “This is acceptable. National security is one of the traditional exceptions to the right to information. The important thing is that the final verbiage be narrowly drawn. If it is too general, then anything can be argued to fall under national security, rendering the right nugatory,” said Lumba.

Similarly, he said that the proposal to include the deliberative process privilege as part of the exceptions in order to preserve the quality of decision-making is reasonable. “Government officials will be less candid with their opinions during deliberations if they knew that these would be plastered all over the quadri-media the next day.”

As for exploratory talks involving commercial transactions which the Palace wants to include as part of the exceptions among the accessible information, Lumba said, “This is negotiable, as long as it is established that its benefits clearly outweigh the costs, and the verbiage is narrowly drawn.”

However, he said that the proposal to delete the penal provisions is not a good idea. “Without the penal provisions, an FOI law would just be a glorified version of RA 6713—all bark, no bite. Penal provisions will really help create a culture of transparency in government. It compels our officials to give heightened attention to the citizens’ right to information. With penal provisions in place, such right will always be at the forefront of their consciousness.”

Lumba said that an FOI law must provide for a presumption in favor of access to all information held by the government, a bill of exceptions that must both be limited in scope and narrowly drawn, and a “public interest” override clause to allow access to information even if it is covered by the exceptions. It should also spell out procedures that facilitate speedy, timely and inexpensive access to information, and review of denials to such access. It must also have a list of key information that government must not only allow access to but must proactively disclose; and protection of government officials and employees who, in good faith, allow access to or disclose information that are covered by the exceptions. Most important, it should specify criminal penalties for willful violation of the right to information.

Before the shot clock goes off

At present, the FOI bill is with the Committees on Public Information in the Senate and the House of Representatives and with the President’s Inter-Agency Committee. “Let us hope that these committees are not just running out the 24-second shot clock. This is why the Right to Know Right Now! Coalition is trying to engage these committees to commit to a time frame,” Lumba said.

At the UP College of Law, Oliva said  SILIP is getting in touch with other students through social networking sites to educate the public and reach out to policy makers about the need for an FOI law. “Everyone should know that access to information is a right guaranteed by the Constitution. If the people themselves do not realize the value of this important right, they cannot push their elected representatives to enact the FOI bill.”

But with all the wheeling and dealing, flip-flopping commitments, backdoor negotiations that have surrounded and continue to surround the campaign for a freedom of information law, Lumba is wary about the final version of the bill. “Let us hope that if the bill ever comes out of [the Senate and the House] committees, it would not be so emasculated as to render the right nugatory. After all, there’s a saying that a donkey is a horse created by a committee.”

Freedom of information is ultimately about good governance—informed citizen participation in government decision-making, enhanced government accountability and transparency, and accessible government programs and services. Former Supreme Court Associate Justice Irene Cortes, in deciding the case of Valmonte v. Belmonte, said it best: “An informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange of ideas and discussion of issues thereon, is vital to the democratic government envisioned under our Constitution….Denied access to information on the inner workings of government, the citizenry can become prey to the whims and caprices of those to whom the power had been delegated.”

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Economy, Governance, Law, Technology

The road that must be taken

There are at least 12 bills on the proposed Freedom of Information (FOI) Act currently referred to the House Committee on Public Information for deliberation.

These are House Bill Number (HBN) 11 by Rep. Rodolfo G. Biazon; HBN 22 by Rep. Marcelino R. Teodoro; HBN 53 by Rep Lorenzo R. Tañada; HBN 59 by Rep. Karlo Alexei B. Nograles; HBN 86 by Rep. Juan Edgardo M. Angara; HBN 301 by Reps. Walden F. Bello and Arlene Bag-ao; HBN 133 by Reps. Teodoro A. Casiño and Neri Javier Colmenares; HBN 830 by Rep. Pedro P. Romualdo; HBN 1968 by Rep. Rachel Marguerite B. Del Mar; HBN 2128 by Rep. Winston T. Castelo; and HBN 2969 by Rep. Salvador H. Escudero III.

The Right to Know, Right Now! Coalition, which actively monitored and participated in the efforts toward the enactment of the consolidated FOI bill during the 14th Congress, examined all versions and identified the features that would make the Freedom of Information Act progressive and reasonable. Similarly, it registered its objections to proposed provisions that defeat the objectives of the right to information campaign.

In a letter to Rep. Ben P. Evardone, chairperson of the House Committee on Public Information, the coalition proposed that in the consolidation of all 12 bills, the committee should adopt those bills that embody the bicameral conference report of the 14th Congress as starting point. “This version has been thoroughly discussed through the full legislative process in the last Congress―from first reading to third reading in both Houses, to the version reconciled and unanimously approved and signed by the bicameral conference committee.”

The coalition said that HBN 11, 53, 301 2969 adopted in full the 14th Congress conference committee report. As for the other bills, it made a distinction between provisions that are advantageous and those that are disadvantageous to the proposed Freedom of Information Act.

Under HBN 1713, the coalition supported improvements proposed in Section 5, which states positively the right of every Filipino to request and be given access to government records. It provides a right-duty symmetry by stating the right before proceeding to spell out the duty imposed on government agencies in the succeeding sentence.

Section 8, which provides for protection of privacy, is also a welcome proposal but it should expressly state that it pertains to private persons, that is, those who are neither incumbent officials or employees of a government agency nor past officials with respect to personal information relating to their former public function. Section 9, meanwhile, requires the prompt and mandatory disclosure of “information about a risk of significant harm to the environment or to the health or safety of the public.”

As for HBN 133, the coalition recognized the two major revisions that the bill introduces. First, it does away with all the exceptions for public access to information. Access may be denied only based on substantial evidence that the purpose of the requested access to information is to abet or promote or commit criminal acts, or to engage in sheer and idle curiosity. Second, it shifts the initiation of a court case, from a citizen making an appeal from a denial of a request for information, to government applying for a court order prohibiting the grant of access to information.

The coalition stressed that the bicameral version already stipulates that examination of records for an unlawful purpose is not allowed. If a government agency is in possession of substantial evidence that the examination of the information is for an unlawful purpose, it has the right, even though not explicitly provided in the bicameral bills, to go to court to apply for an order to allow it to prohibit access where no other exception applies. As to “sheer or idle curiosity” as a basis for refusal of access, the coalition disagreed that it should be allowed as an exception as it is open to arbitrary interpretation.

As regards HBN 59, 830 and 2128, the coalition opposed particular revisions being proposed.

HBN 59 introduces a new section on non-retroactive effect which provides that all public information covering matters or transactions that took place before the passage of the act shall be put under seal. All public information covering matters or transactions taking place after the passage of the Act shall be available only during the incumbency of the President under which the matter or transaction took place. All such information under seal may be released only by a special law, or through a subpoena duces tecum issued by a court or by Congress.

This non-retroactivity provision, according to the coalition, is an unreasonable limitation of the right as it will defeat the people’s right to information rather than promote or protect it. The constitutional guarantee of citizen’s access to information does not make any distinction as to when the matter or transaction referred to was recorded.  In addition, the non-retroactivity provision has the effect of negating the public right nature of the constitutional guarantee on access to information. The Supreme Court has consistently held that a citizen need not show a present and existing interest of a pecuniary character in the information sought to be regarded a party in interest in a case to compel access to information. Making historical information accessible to the public only by a subpoena duces tecum implies that access requires evidentiary relevance in an ongoing case, in which the citizen must be a party having personal interest.

Meanwhile, HBN 830 introduces a number of exceptions that are either over-broad, vague, or highly discretionary as to nullify the constitutional right to information. One example is Section 6 (e), which exempts from access “information that affects our national sovereignty.” National sovereignty refers to the power of an independent state to govern itself and to conduct foreign relations. Indeed it covers virtually all aspects of governance, and all acts and transactions of government can be argued to affect national sovereignty. Another example is found in Section 6 (g), exempting information “which may affect the interest of the Republic of the Philippines abroad,” and similarly, Section 6 (i), exempting information “that affects the economic interest of the Republic of the Philippines within and outside the country.” This gives the government a roving discretion in refusing access to information, as all policies can be argued to affect the economic interest of the country.

With regard to HBN 2128, it adds a highly discretionary exception. Specifically, Section 7 (l) exempts information which, “in the reasonable opinion of a qualified person, would prejudice the effective conduct of public affairs.” The Supreme Court has time and again emphasized the repugnance of arbitrariness to fundamental rights. In the case of Legaspi v. Civil Service Commission, the high court ruled: “Without a government’s acceptance of the limitations imposed upon it by the Constitution in order to uphold individual liberties, without an acknowledgement on its part of those duties exacted by the rights pertaining to the citizens, the Bill of Rights becomes a sophistry, and liberty, the ultimate illusion.”

Furthermore, HBN 830 assigns the primary burden of proof in accessing information to the requesting public. The coalition said that this violates the constitutional guarantee that, “in case of denial of access, the government agency has the burden of showing that the information requested is not of public concern, or, if it is of public concern, that the same has been exempted by law from the operation of the guarantee.”

HBN 830 also expands the coverage of the duty to disclose information to include “private institutions including the media.” The coalition said that the private sector’s duty to disclose information to the public is better tackled in a separate bill or measure. By the structure of the bill of rights, it mainly addresses the limiting of government powers.

In pushing for the passage of the Freedom of Information Act, the coalition made it clear that the objective is not to use information “to exact ransom, extort money or property, coerce government in changing policies to conform to our whims, caprices and syndicated acts, or to harass people in government.” Instead, the goal is to make informed participation in government decision-making, enhance government accountability, and assist in making government programs and services accessible to the public.

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Culture, Governance, Law, Personal

Calloused

By the time I looked up, the two men had already jumped off the jeep. But I remember one wearing black sando and torn jeans, the other orange hooded sweatshirts and board shorts. They were being chased by an angry indictment: “Mga mandurukot! Hindi na nahiya! Mga mandurukot!”

There was an eruption of violent, furious, shocked voices when I took off my earphones:

“Naku, sa suot pa lang, naghinala na kaagad ako sa dalawang iyon!”

“Makikita mo naman sa mukha at ayos, parang labas-pasok sa kulungan!”

“Hindi mo ba napansin kanina pa kita tinititigan?”

“Kaya pala ang likot noong nasa kaliwa ko. Akala ko kumukuha lang ng pamasahe sa bulsa nya.”

Ay naku, kung ako yun, sampal at sipa ang inabot nila sa akin!”

“Bubugbugin ko ang mga hayop na iyon!”

“May dala ako ditong tubo, nagamit sana!”

“Gusto ko nang sabihin na dinudukutan ka kaya lang baka may panaksak!”

“Oo nga, nakakatakot, baka manaksak!”

“Syempre handang pumatay ang mga iyon!”

“Pero noong makita ko na wala namang hawak, naku, talagang hindi ko na napigilan na sumigaw!”

“O, tingnan mo, takot din ang mga walanghiya! Ang bilis bumaba!”

“Pero uy hindi ko naisip na kasama nya pala yung nasa kanan mo!”

“Ako rin, pero sinisiksik nya rin ako, kaya siguro hindi ko nahalata yung ginagawa nung kasama nya.”

“Nakakatakot ano? Hindi mo alam napapagitnaan ka na pala ng mga magnanakaw!”

“Dapat sa mga iyon binubugbog para matuto!”

“At ikulong, tapos huwang nang palabasin! Habambuhay na sila sa loob! Mga salot naman sila eh!”

“Samahan nila si Ivler, sabay sabay na silang mabulok sa loob!”

“Gwapo batang yun, hihi.”

Sus, mamamatay tao naman! Adik adik pa!”

“Oo nga, sayang, hihi.”

Anong sayang dun?”

“Ay, hihi, dapat sa kanila i-silya elektrika para hindi na makapagnakaw at makapatay ulit.”

Blissfully oblivious to this cacophony, about fifteen meters from the jeep, were the thugs walking ever so casually on the sidewalk. They even stopped by the curve for a cigarette. And, before disappearing completely, the one in orange sweatshirts had the audacity to give us a good once-over—aware and confident that we were all too cowardly to make good of our venomous threats.

That look, I thought, was the biggest insult on each and every one inside that jeep. What the thug was telling us was that they could do us harm any time, any where, any how they want to and we would do nothing about it.

He was so right. I looked out the streets for policemen. It was seven in the morning and there was no law enforcer on patrol. Little wonder, thugs these days, they don’t need anymore the cover of darkness.

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Economy, Education, Governance, Law

Anything but nothing

If the Great Depression spurred on the development of economic theories, according to former Philippine Supreme Court Chief Justice Vicente V. Mendoza, martial law prompted the formulation of judicial theories.

One such theory would have to be the Political Question Doctrine, which the Supreme Court invoked alarmingly too often in declaring controversial cases as being out of its hands. In Montenegro vs Castañeda, for example, the tribunal held: “The authority to decide whether the exigency has arisen requiring suspension belongs to the President and ‘his decision is final and conclusive’ upon the courts and upon all other persons.”

Furthermore, in Lansang vs Garcia, the Supreme Court went on to say that “[t]he function of the Court is merely to check — not to supplant — the Executive, or to ascertain merely whether he has gone beyond they constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act.” In the ascertainment of the factual basis of the suspension, however, the Court had to rely implicitly on the findings of the Chief Executive. Indeed, such reliance on the Executive’s findings would be the more compelling when the danger posed to the public safety is one arising from Communist rebellion and subversion.

However, sensing that the Political Question Doctrine had become a convenient escape under the Marcos Regime, former Chief Justice and Constitutional Commission member Roberto Concepcion pushed for the amendment of the political doctrine clause in the 1987 Constitution. Thus, Article 7, Section 18 now reads: “Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”

Justice Mendoza noted that the first part of the definition of judicial power came from Roxas vs Lopez, the second part from Lansang vs Garcia—both cases, as it turns out, were penned by Chief Justice Concepcion.

Put simply, judicial power grants the Supreme Court the power to do something—clarify issues, settle controversies, prevent abuses by government instrumentalities. For me, this means that the tribunal cannot simply copout or seek refuge in the Political Question Doctrine for fear of going up against the Executive or Legislative departments.

Judicial power, as defined in the 1987 Constitution, is a recognition of the Judiciary as being equal to the other two branches of government. Therefore, when the nation is under threat of extinction, whether by internal or external forces, the Judiciary has as much responsibility as the Executive and the Legislative to protect the government. It has its own obligations and commitments to the Constitution.

Cicero did say, as quoted by Justice Mendoza, that “in the midst of war the laws are silent.” He may be right but surely, during martial law, the Supreme Court has to lose its cold neutrality and unquestioning adherence to the actions and decisions of the Chief Executive.

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Education, Governance, Law

Deciding not to decide

I find it curious how, in a short span of thirty years, the Supreme Court could make a complete turnaround in the way it involves itself in national affairs.

The Supreme Court certainly is no stranger to being thrust into a highly charged political atmosphere. Almost forty years ago, on 21 September 1972, it was confronted with a dilemma when asked to review the constitutionality of Presidential Proclamation No. 1081, which placed the country under martial law and the legality of the arrest and detention of prisoners under the same proclamation.

To resolve the issue, in Aquino vs Ponce Enrile for example, the Supreme Court ruled for “unquestioning adherence to political decision.”[1] It noted that when armed rebellion threatens the existence of the nation, the President is vested with power to declare martial law. Justice Antonio, in a separate opinion, explained: “The concentration of an amplitude of power in the hands of the Commander-in-Chief of the Armed Forces of the Philippines, who is at the same time the elected civilian Chief of State, is predicated upon the fact that it is he who must initially shoulder the burden and deal with the emergency. By the nature of his position he possesses and wields the extraordinary powers of self-preservation of the democratic, constitutional state. In times of crisis there is indeed unification of responsibility and centralization of authority in the Chief Executive.”

Furthermore, Justice Antonio pointed out the necessity for the judiciary to keep distance from the decisions and actions made by the Chief Executive while the country is under martial law. “By reason of his unique position as Chief Executive and as Commander-in-Chief of the Armed Forces of the Philippines, it is he, more than any other high official of the government, who has the authority and the means of obtaining through the various facilities in the civil and military agencies of the government under his command, information promptly and effectively, from every quarter and corner of the state about the actual peace and order condition of the country,” he noted. “Both reason and authority, therefore, dictate that the determination of the necessity for the exercise of the power to declare martial law is within the exclusive domain of the President and his determination is final and conclusive upon the courts and upon all persons.”

Twenty nine years after the martial law, in January 2001, the Supreme Court was caught in yet another political storm. EDSA People Power 2 had just brought the Estrada Administration to a collapse, resulting in uncertainty over the country’s future. Now that Joseph Ejercito Estrada had moved out of Malacanang, the question on everyone’s mind was: what to become of the presidency?

But if under the Marcos Regime the judiciary hid behind the veil of political question doctrine to avoid deciding divisive issues, during the Estrada Administration it took an activist stance.

Amid the uncertainties, relief came when then Chief Justice Hilario Davide, Jr. made the bold move of stepping out of his secluded judicial chamber and into the open streets to swear then Vice President Gloria Macapagal Arroyo into the presidency. The judiciary had the option to stay neutral by invoking the Separation of Powers Doctrine. But it did not. It chose to take active part in the people power revolution that, fifteen years earlier, had also ousted a sitting president.

When Estrada challenged the legitimacy of Arroyo as the country’s chief executive, the Supreme Court asserted its power of judicial review and ruled for the latter. The tribunal even went further as to declare EDSA 2 not merely extra-legal but constitutional, saying that it was “an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President.”[2]

Pundits believe that Chief Justice Davide’s act of administering President Arroyo’s oath was actually a necessary move to preserve the Supreme Court as an institution in a nation that has already ousted two duly elected presidents through peaceful revolutions. Observed former Senate President Jovito Salonga: “The scenarios that confronted the Chief Justice before he went to bed on the eve of Arroyo’s oath-taking were grim: if a stalemate dragged on, the military could seize the moment and take full control of the situation; on the other hand, if Arroyo was forced by the crowd to assume the presidency without the high tribunal’s imprimatur, she could declare a revolutionary government.”[3]

In the end, the Supreme Court’s activism saved not only itself but democracy in the country as well.

Martial law in 1972 and people power in 2001are two different events that dealt with two different threats to the existence of the nation—martial law with rebels and communists, EDSA 2 with ordinary citizens fed up with corruption.

Too, martial law in 1972 and people power in 2001 are two different events that unmasked two different sides of the Supreme Court—martial law showed an old-fashioned, conservative judiciary, EDSA 2 showed a radical, activist tribunal.

Between 1972 and 2001, the 1987 Philippine Constitution happened, discouraging the Supreme Court from always resorting to the Political Question Doctrine to avoid deciding on matters it deems highly political and controversial. And it might just well have saved the judiciary from being relegated to the depths of oblivion and irrelevance.


[1]Aquino vs Ponce Enrile, G.R. No. L-35546, 17 September 1974

[2] Estrada vs Arroyo, GR No. 146738, 2 March 2001

[3] Gloria, Glenda M. “Judgment Day: Averting a Political Crisis” in Newsbreak. 7-13 March 2001.

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Culture, Governance, Law, Personal

The recidivist

Last night, the jeepney I was riding was caught beating the red light. Instead of simply issuing a traffic violation ticket, the police officer also confiscated the driver’s license, which turned out to be fake. We were asked to transfer to another jeepney. My inconvenienced co-passengers groaned and accused the police officer of being an ass. I thought he gave public service a good name.

This morning, when I boarded my jeepney to UP, guess who the driver was? I thought he would still be in detention for falsifying a public document—a crime against public interest. Or, if the police officer simply fined him, he wouldn’t have the temerity to drive again. At least not right after the night his fake license was confiscated. Now he was driving without any license at all. Or maybe with yet another fake license.

I had half a mind to go down and board another jeepney. But I was late for work. So.

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Governance, Personal

Cowed

Let’s say the High Council of Humans anointed the Cow to be Great Chief of the Animal Kingdom. As overlord, he had the power to make laws and to punish those who broke them. He also had power to settle issues and controversies between his constituents.

Now the Animal Kingdom was vast, vast beyond imagination—leagues upon leagues of lands, skies, and oceans; gazillions of subjects classified into billions of known and unknown families. To help the Great Cow see to the law and order in the Kingdom, the High Council of Humans invoked an ancient edict allowing the Chief Animal to appoint his own Deputy Chief Animals.

So the Great Cow named the Eagle to lead among Sky Animals, the Shark among Sea Animals, and the Lion among Land Animals. As deputies, the Eagle, the Shark, and the Lion were to observe two limitations to their power. One, their authority extended only to their respective domains. And two, they were subject to the jurisdiction of the Great Cow who could exercise power over any and all of them.

One day, a wounded pelican dropped from the sky, gasping for its last breath. The bird landed on the same ground at the same time the Lion was on patrol. The Lion, without so much as a blink, snatched the pelican and stuffed its feathery meat into his cavernous mouth.

When the Eagle heard about the feather-snuffing crime, he accused the Lion of violating the Boundary of Powers Covenant. The Lion, summoned before the Office of the Great Cow, admitted to committing the act in question, apologized, and offered to resign as Deputy Chief of Land Animals.

Upon hearing the issue, the Great Cow turned to his left, turned to his right, looked up, bowed down, faced his toadies, and mooed his Resolution: He would endorse the Lion’s offer of resignation to the High Council of Humans.

This confused all animals across the Kingdom. What for the endorsement? The issue between the Lion and the Eagle was a gaping threat to the peace between Land and Sky animals. Why could not the Great Cow, once and for all, right there and then, resolve the rift between the two territories well within his jurisdiction? Why the need to involve the Humans? What was the Great Cow the Chief of the Animal Kingdom for?

Stupid Cow.

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Environment, Governance, Law

Droughts and Deluges: Climate change is real and upon us

Michael Glantz, a social scientist of the US National Center for Atmospheric Research, says there is a critical distinction between climate and weather. Put simply, it is this: “Climate is what you expect. Weather is what you get.” These days, however, we don’t know what to expect anymore even as we puzzle over what we are getting.

Last year, when typhoons Ondoy, Pepeng, Santi, and Urduja hit in quick succession, a vast swath of Northern Luzon was soaked in flash floods for weeks. There was so much water that the floodgates of the San Roque Dam had to be opened because it could no longer hold more rainfall. Yet in the following months, a severe dry spell practically parched the Angat Dam, putting thousands of Metro Manila households on a six-hour-a-day water ration.

Around the world, unusual conditions are also being observed: snowfall in Guadalajara, Mexico for the first time in 1998 since 1881, accelerated melting of glaciers in Greenland, eight successive cyclones in the Central Pacific in 1997 compared to two the year before, enormously devastating hurricanes in the United States, and a deadly tsunami in Indian Ocean in 2004.

What is happening? Why these sharp, sudden, stark reversals in weather patterns?

Climate change. Meteorologists, oceanographers, and climatologists are still trying to figure out what exactly this environmental aberration is, what causes it, and where it will lead us in the future. What we know thus far is that over the past century, we have been experiencing a temperamental cycle of extremely dry conditions and excessively wet seasons. We also know these climate mood swings by the names El Niño and La Niña.

Research has established a close link between climate change and human activities. It seems we are releasing too much carbon which causes greenhouse gases to build up in the atmosphere, making it warm, too warm, in fact, that it brings about large-scale changes in our climate system. When we destroy forests, for example, we unleash a vicious cycle. Transparency International explains that “First, [cutting trees] sets free stored carbon dioxide, estimated at twice the amount currently floating in the world’s atmosphere. Second, new studies show that climatic shifts caused by deforestation affect the ability of trees to function as the world’s ‘carbon sink’”(Corruption and Renewable Resources, 2007). It should be no surprise, then, that tropical deforestation accounts for between one fifth and one quarter of the total human contribution to greenhouse gases (Nelson and Chomitz, 2009). Meanwhile, according to the 2008 Intergovernmental Panel on Climate Change, agricultural activities contribute 12 percent to greenhouse gas emissions. Furthermore, Greenpeace International says emission rates are higher—anywhere from 16 percent to 30 percent—if we factor in land use, transportation, packaging, and processing.

Strategic responses
UP College of Law Professor Antonio G.M. La Viña, Dr. Jose Ramon T. Villarin, and Ma. Antonia Y. Loyzaga, in a paper titled “In the Eye of the Perfect Storm: What the Philippines should do about Climate Change” (2008), say that “Climate change, as a global problem, presents a challenge that is characterized by the irrelevance of national boundaries both in terms of its causes and the required solutions. It requires the definitive manifestation of the interdependence of nations and the adoption of a global framework.”
World leaders seem to understand the urgency of the situation. The UN-sponsored conference on climate change in Copenhagen, Denmark in December 2009 attracted the support of more than 119 heads of states and 800 representatives of companies based in more than 60 countries, including the United States, the European Union, Australia, Canada, Brazil, Russia, India, China, South Africa, and the Philippines.

In a communiqué, widely recognized as the definitive progressive statement from the international business and political community, the Copenhagen participants called for a bold, ambitious, optimistic, and equitable global deal: “The problem of climate change is solvable. Many of the technologies required are available today, while others can be developed if the right incentives are in place. The policies needed are relatively clear, and the costs of transition are manageable, even in the current economic climate. The one thing we do not have is time. Delay is not an option.” The idea is to stabilize greenhouse gas concentrations in the atmosphere by investing in low-carbon products, services, technologies, and infrastructure.

There are three strategic responses to climate change: prevention, mitigation, and adaptation. Prevention focuses on reductions in emissions, mitigation on lessening the effect of global warming, and adaptation on adjusting to climatic changes.

While prevention is the ideal way out, La Viña et al. suggest that the most effective strategy in the context of Philippine development is the integration of mitigation with adaptation. “Adaptation is as much a development concern as mitigation,” they say. “Within the context of global-scale shifts in the climate system, development can only succeed with adaptation into the process.”

They identified four factors for the successful implementation of the Adaptation-Mitigation Framework, which calls for individual and collective participation. The first involves the development of science-based climate policies. To come up with these policies, local government units are in the best position to identify the impact of climate change on their respective areas of responsibility. They can adopt localized strategies appropriate and unique to their situations.

The second has to do with the use of market-based mechanisms to attract the use of cost-effective technologies and options to address climate change. Corporations and business organizations are identified as some of the main culprits for increasing greenhouse gas concentrations through their operations. They should therefore invest in technologies and projects that provide sustainable development benefits. Similarly, they should engage in using the carbon market to identify ways to reduce emissions in their manufacturing and operation processes.

Third, it is vital to invest in research and development in order to come up with better strategies to combat the impacts of climate change. Academe and research institutions can provide the technical and scientific research outputs for policymakers. One issue they can explore is the systematic observation of climate systems and their impact on the most vulnerable sectors of society, such as the poor who have no effective means to cope with flash floods or water crisis.

And the fourth factor revolves around the importance of effective capacity development and information awareness campaigns. With the right information, local government units, the media, civil society, and individual citizens can be effective agents of a low-carbon lifestyle.

Legal reforms
Even the judiciary wants a role in this battle against climate change. Last April 13, the Supreme Court issued the Rules of Procedure for Environmental Cases, which aim to effect sweeping and far-reaching reforms in environmental litigation and protection. Among others, the Rules include innovative provisions on environmental protection order, the writ of kalikasan, and the writ of continuing mandamus.

Under the Rules, a court is empowered to issue an environmental protection order directing or enjoining any person or government agency to perform or desist from performing an act in order to protect, preserve, or rehabilitate the environment. It integrates both prohibitive and mandatory relief to address appropriately the factual circumstances surrounding the case. This remedial measure can also be sought in the writs of kalikasan and continuing mandamus.

The writ of kalikasan, which contains a specific set of remedies which may be availed of individually or cumulatively, is available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated or threatened with violation by an unlawful act or omission of a public official or employee, or a private individual or entity. The violation should involve environmental damage of such magnitude as to prejudice the life, health, or property of inhabitants in two or more cities or such provinces. The petition for the issuance of a writ of kalikasan may be filed with the Supreme Court or with any branch of the Court of Appeals. Furthermore, the summary process leading to the issuance of the writ dispenses with extensive litigation, which means prompt disposition of the matters brought before the court.

As its name indicates, the writ of continuing mandamus permits the court to retain jurisdiction even after judgment in order to ensure the successful implementation of the relief mandated under the court’s decision. For this purpose, the court may compel the submission of compliance reports from the respondent government agencies as well as avail of other means to monitor compliance with its decision.

Both the writs of kalikasan and continuing mandamus exempt the petitioner from the payment of docket fees.

Rainwater catchments
Just a week after the Rules were promulgated, a group of citizens known as The Global Legal Action on Climate Change filed a test case, “A Petition for Mandamus in the Nature of a Writ of Kalikasan,” with the Supreme Court on April 21, 2010. The group, led by Ramon Magsaysay awardee and UP College of Law professor Antonio Oposa Jr., is composed of UP law students and some environmental lawyers.

The petitioners seek to compel the Office of the President, the Department of Public Works and Highways, the Department of Interior and Local Government, and various local government units as class defendants to implement a 21-year-old law on rainwater collectors. Republic Act No. 6716, enacted in March 1989, mandates the DPWH to construct rainwater collectors and develop springs in every barangay in the country. With the passage of RA 7160, or the Local Government Code of 1991, the construction of rainwater collectors became a shared burden of the LGUs.

In a statement, the petitioners noted that “rainwater collectors have become increasingly important in light of the extremely wet and dry seasons climate change has brought upon the Philippines. During rainy seasons, rainwater collectors serve as catchment areas to prevent flooding; during dry seasons, they serve as sources of freshwater.” They also serve a myriad other purposes—from recharging aquifers, improving micro-climatic conditions, and providing recreation and spiritual soothing, to being home to food sources such as fish and vegetables.

RA 6716, according to the petitioners, requires the construction of around 100,000 rainwater catchments all over the country. They were all supposed to be completed in 1991. The DPWH, however, began construction only in January 2009, and has so far built only four catchments. “The measly number of rainwater collectors constructed by the government agencies concerned is so infinitesimal it is tantamount to gross negligence in the performance of public duty,” say the petitioners. “When will we ever learn?”

“One thing is clear: climate change is real. The sooner we accept this, the sooner we can face the consequences with adequate foresight and preparation, ingenious adaptation, and determined action,” they note. “Thus, the relief we are seeking is two-pronged: first, for the government agencies and LGUs to submit a detailed action plan and program of action on how they will implement RAs 6716 and 7160 on rainwater catchments; and second, for a court-appointed Commissioner to continuously monitor the implementation of the laws.”

Too much time has clearly been wasted. And so, for the petitioners, no more talk. Time to act.

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REFERENCES

A.M. No. 09-6-8. “Rules of Procedure for Environmental Cases.” Supreme Court of the Philippines, April 13, 2010.

Bapna, Manish et al. “Enabling Adaptation: Priorities for Supporting the Rural Poor in a Changing Climate.” World Resources Institute Issue Brief, May 2009.

Institute for Agriculture and Trade Policy. “Integrated Solutions to the Water, Agriculture, and Climate Crises.” March 2009.

Nash, J. Madeleine. “Fire and Rain.” Time, April 20, 1998.

Nelson, Andrew and Chomitz. Kenneth M. “Protected Area Effectiveness in Reducing Tropical Deforestation: A Global Analysis of the Impact of Protection Status.” Evaluation Brief No. 7. Washington, DC: Independent Evaluation Group, World Bank. October 2009.

Sze, Abigail T. “SC unveils landmark Rules of Procedure for Environmental Cases.” April 14, 2010. http://sc.judiciary.gov.ph.

The Global Legal Action on Climate Change vs The Philippine Government. GR No. 191806. Filed with the Supreme Court on April 21, 2010.

Transparency International. “Corruption and Renewable Natural Resources.” Working Paper. Berlin: Policy and Research Department, Transparency International, January 2007.

Villarin, Jose Ramon T. et al. “In the Eye of the Perfect Storm: What the Philippines Should Do About Climate Change.” Working Paper. Berlin: Transparency International, July 2008.

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Governance, Health, Law

Hype and hope

Less than a year after it was signed into law on June 6, 2008, things are shaping up for Republic Act No. 9502 or the Universally Accessible Cheaper and Quality Medicines Act (QAMA). The law has inspired polarized reactions—some optimistic and some skeptical—over its capacity to work toward bringing health care to the people who need it most.

Sensible and compassionate

On April 16, the Supreme Court applied RA 9502 and ruled in favor of a local drug company, Roma Drug Co., in its legal battle against the local arm of international pharmaceutical giant GlaxoSmithKline. Roma Drug, which operates a pharmacy in Guagua, Pampanga, was prosecuted for supposedly violating RA 8203 or the Special Law on Counterfeit Drugs (SLCD) by directly importing and selling Augmentin tablets, Orbenin capsules, Amoxil capsules, and Ampiclox capsules. These drugs, although neither adulterated nor mislabeled, were alleged by the Pampanga Provincial Prosecutor as “counterfeit” under the SLCD based solely on the fact that they were imported from abroad and not purchased from GlaxoSmithKline, the Philippine-registered owner of the patent or trademark of such drugs.

The Supreme Court ruled that the QAMA grants private third parties the “unqualified right … to import or possess ‘unregistered imported drugs’ in the Philippines.” Furthermore, the Court held that Section 7 of RA 9502 repeals Section 4(a) of the SLCD insofar as the latter imputes criminal liability on persons who import, possess or sell unregistered imported drugs. According to the Court, since RA 9502 contains the latest legislative expression as regard importation of patented drugs or medicines, it prevails over the SLCD, which is an earlier statute. “Where a statute of later date, such as Republic Act 9502, clearly reveals an intention on the part of the legislature to abrogate a prior act on the subject, that intention must be given effect,” Justice Dante O. Tinga stated in his ponencia.

Describing the SLCD as a heartless, soulless legislative piece, Tinga declared it as one of doubtful constitutionality. “As written, the law makes a criminal of any person who imports an unregistered drug regardless of the purpose, even if the medicine can spell life or death for someone in the Philippines. It does not accommodate the situation where the drug is out of stock in the Philippines, beyond the reach of a patient who urgently depends on it,” he explained. “The absurd results from this far-reaching ban extend to implications that deny the basic decencies of humanity. The law would make criminals of doctors from abroad on medical missions of such humanitarian organizations such as the International Red Cross, the International Red Crescent, Medicin Sans Frontieres, and other like-minded groups who necessarily bring their own pharmaceutical drugs when they embark on their missions of mercy.”

In contrast, Justice Tinga continued, the QAMA allows “for a sensible and compassionate approach with respect to the importation of pharmaceutical drugs urgently necessary for the people’s constitutionally-recognized right to health.”

Legal confusion

Prof. Dina Lucenario of the UP College of Law, in an interview with the UP FORUM, pointed out that the Roma Drug Case has been criticized for the confusion in concepts on which it was based. The term in dispute is “unregistered.” She said the Supreme Court construed “unregistered” in the phrase “unregistered imported drugs” to mean lack of registration with the Intellectual Property Office. Thus, the High Court’s premise was that the SLCD criminalizes the importation of drugs by persons who are not the registered owner of the patent or trademark used in such drugs. Such a premise, however, is being questioned since “unregistered” may mean lack of registration with the Bureau of Food and Drugs (now replaced by the Food and Drug Administration).


Prof. Dina Lucenario of the UP
College of Law

Those who are against the Roma Drug ruling point out that the Food, Drugs and Cosmetic Act as well as the Consumer Act require that all drugs imported or marketed in the Philippines must first be registered with the FDA. Through such registration, FDA is able to examine whether the drugs are safe, pure, and efficacious.

Lucenario said that this requirement is not thrown overboard by the passage of RA 9502 which merely allows private third persons the right to import or otherwise use drugs whose patents and trademarks are owned by another. “While private third persons can import or otherwise use drugs protected by patents and trademarks of another, such importation or use is still subject to the requirement that the subject drugs must be registered with the FDA to ensure their safety, purity, and efficacy,” she explained. “Opponents of the Roma Drug ruling emphasize that the lack of registration with the FDA makes the ‘unregistered imported drugs’ counterfeit under SLCD as the safety, purity and efficacy of such drugs were not determined by the FDA as they were not registered with the FDA.”

Deceitful and illusory

Three months later, on July 27, President Gloria Macapagal Arroyo issued Executive Order No. 821, which prescribes the Maximum Drug Retail Prices (MDRP) for selected drugs and medicines. Out of the 22 essential medicines which were recommended by the Department of Health, only five made it to the final cut for compulsory compliance. These medicines are for hypertension, diabetes, cancer, bacterial infections, and amoebiasis. Seventeen others were listed for voluntary compliance only.

By reducing to half the original prices of selected medicines, the MDRP is supposed to concretize the intention of RA 9502, which is to make inexpensive and quality medicines accessible to the public. Already, however, it is being touted as “deceitful and illusory.”

In a statement, Eleanor M. Nolasco, convener of Consumers’ Action for Empowerment, pointed out that EO 821 “does not include the most widely used essential, first-line medicines needed for the treatment and cure of more prevalent diseases in the country.” Nolasco said it should have included medicines needed to treat the 10 leading causes of morbidity and mortality in the country, such as respiratory diseases, pneumonia, and tuberculosis.

Why did Arroyo limit the list to five medicines when Section 23(a) of RA 9502 provides a comprehensive list of drugs and medicines that may be subjected to price regulations? These include remedies for cardiovascular diseases, pulmonary ailments, systemic lupus erythematosus, even neuro-psychiatric disorders.

Nolasco also berated the national government for using the drug originator price as peg for reducing by 50 percent the prices of essential medicines in the compulsory list. “For example, the MDRP of Amlodipine 10 mg (used to lower blood pressure) is P38.50, about half the price of its originator brand medicine Norvasc 10 mg, which is sold at P77 in a leading drug store,” she explained. “Why set this amount as the MDRP for this medicine when its generic equivalent is sold at P15 at a known drugstore selling generic medicines?” In other words, despite the reduction, medicines would still cost an arm and a leg for average income earners.

“The MDRP should be pegged at prices that an ordinary worker can afford with his meager income,” Nolasco said.

There are also concerns about EO 821 triggering an increase in prices of drugs and medicines not covered by the MDRP to re-gain the revenue they would lose from those covered by the mandatory reduction. Unfortunately for consumers, this practice is legal. RA 9502 itself does not prohibit such practice. It appears that such practice may fall under the primary tool described in RA 9502’s declaration of policy. RA 9502’s declaration of policy states that competition is the primary tool and price regulation, the secondary tool. This sanctions the conclusion that with respect to those not covered by the MDRP, competition and market forces shall govern thereby enabling manufacturers and importers to set their prices. Neither does our tax law prohibit such practice. According to Lucenario, “Our tax law does not seek to prohibit such practice or scheme. It merely ensures that taxpayers properly reflect the amount of their income subject to tax. For those not covered by MDRP, the present law allows the market participants to determine their prices.”

The market participants’ decision to increase the prices of their products not listed in the MDRP, therefore, is largely dependent on market forces. “The law will only come in if there are anti-competitive practices such as profiteering as defined under the Price Act and the implementing rules and regulations of RA 9502,” she said.

A bitter pill

Even then, pharmaceutical companies might still find the MDRP too bitter a pill to swallow. Drugstore owners or distributors, who must now sell at half price the medicines listed in the MDRP, can recover the price differential from the importer or the manufacturer. But from whom can the importer or manufacturer recover their unrealized income due to the 50 percent reduction in the prices of their products? Section 2(b.1) of EO 821 simply lets them shoulder the price differentials.

Lucenario said that since the MRDP’s mandatory price reduction scheme is imposed at the retail level, the participants in the supply chain—from the manufacturer or importer down to the retailer or drugstore owner—have no choice but to reduce their prices. “The retailer will not buy the product from the distributor at a price higher than the MDRP. In turn, the distributor will not buy the product from the manufacturer or importer at a price higher than the amount which the retailer is willing to pay the distributor,” she explained. “Consequently, the reaction moves upwards compelling the manufacturer or importer to sell its product to the distributor at a price lower than the MDRP to allow some profit margin for the distributor and the retailer.”

Tax deduction is also not an option for manufacturers and importers to obtain relief for their revenue loss. Lucenario stressed that the MDRP is a mandatory price reduction, not a sales discount which manufacturers or importers can deduct from their gross receipts come the time for tax payment. “In discounts, the seller sells at a certain price but allows the buyer or patient to pay less than that price,” she said. “On the other hand, in a price reduction scheme, the seller is required to set the price to equal to or less than the reduced price and to allow the buyer or patient to pay exactly such reduced price.” Nonetheless, whether it’s sales discount or price reduction, the net effect is the same. The manufacturers or importers shouldering the price differentials will receive, and thus, report lower gross revenue or receipts.

Furthermore, instead of getting tax relief, pharmaceutical industry players are still compelled to observe the 20 percent discount on senior citizens’ purchase of medicines under RA 9257, or the Expanded Senior Citizen’s Act. Section 4, Rule 30 of the IRR of RA 9502 provides that “[f]or drugs and medicines with MRPs, Senior Citizen’s discounts and discounts for people with disabilities shall continue to be honored.” Lucenario noted that in the original draft of the IRR, the Department of Health, the Department of Trade and Industry, the Intellectual Property Office, and the Bureau of Food and Drugs initially considered those drugs and medicines subject to the MDRP be no longer subject to the mandatory senior citizens’ discount. In the end, however, the agencies changed their position and kept the 20 percent senior citizens’ discount on top of the 50 percent compulsory price reduction under the MDRP.

Ultimately, it boils down to the capacity of the manufacturers or importers to absorb the loss or reduction in price. Those who cannot, Lucenario said, would be compelled to stop selling their product in the Philippines or to shut down operations. For those who can, the picture is not too good either, since they would have to suffer a cutback in their profits.

If there is any consolation, she said, it is the possibility “that the reduced price may have the effect of increasing the sales, thereby essentially offsetting the reduction in profit for each piece of the product.” But this consolation may be too small in comparison to the losses manufacturers or importers are bound to face.

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Governance

Adapting to a New Environment, Rising to New Challenges

Its first one hundred years saw the University of the Philippines rise into a complex, confident, and geographically extensive institution. It has grown into seven constituent universities strategically located in twelve campuses across the country. It offers 258 undergraduate and 438 graduate programs to almost 52,000 students. The scope and range of its course offerings include all disciplines, and it continues to lead the country in the quest for knowledge. 

Already in its second century, UP is still a work in progress, its passion for the new and the different burning as bright as ever. But today it operates in an environment radically different from when it was founded in 1908.

A century of paradox

To consider the University in the larger context of the nation, interviews were conducted with some of UP’s former and present administrators.

This now networked and global world is one where ideas and information flow freely. “Our students are connected in many ways,” says Dr. Maria Serena I. Diokno, professor of history at the UP Diliman College of Social Sciences and Philosophy, and former Vice President for Academic Affairs. “Not always intellectually, but certainly they are aware of things that are going on elsewhere, whether it’s fashion, food, music—almost everything.”


Dr. Maria Serena I. Diokno

The world has also changed politically. “In its first 100 years, and even until now, UP has responded to a dominant national environment characterized by our people’s aspiration for political independence (primarily from the Americans) and mass-based economic progress. The rise and fall of communism/socialism in the second half of the century also dominated the scene,” points out UP Los Baños Chancellor Luis Rey Velasco. “Today, UP as an academic institution has to respond to the national environment in the context of globalization and internationalization, information explosion, a stronger science-driven understanding of the world and economic development, and global climate change.”

This is similar to UP Diliman Chancellor Sergio S. Cao’s view. Cao had previously served as Faculty Regent, Vice President for Finance, and University Registrar. He sees the University as facing a two-pronged imperative: our role as a public service university as explicitly stated in the new Charter and the demand for internationalization. “Our programs and research must be responsive to the needs of the nation, and especially our communities. At the same time, we must address the push toward internationalization to exchange knowledge and information with our academic counterparts abroad, and to enrich our service to our people.”

Velasco adds that interdependence, rather than independence, is fast becoming a necessity for progress. “Blending interdependence with our aspiration of an inward-looking nationalism is a challenge UP has to reckon with,” he says. “UP must provide the venue for articulation of this issue and how our nation shall respond in a forward-looking perspective.”

“Certainly, we are freer. People are more outspoken,” says Diokno. “There are still threats to our freedom—the massacre of journalists, questionable arrests, all kinds of subtle persecution of citizens. But, by and large, there is the environment of freedom.” It is an environment where secrecy is not much of an option even—or especially—for state officials as the demand for transparency in government is greater.


UPLB Chancellor Luis Rey Velasco

Yet there is no assurance that students, for all their technological sophistication, truly comprehend the developments taking place around them. “They still don’t read the newspapers and I don’t know if they go to the Internet to check on Philippine news,” notes Diokno. “This is a century of paradox. On the one hand, there are almost no technological barriers to understanding or knowing what’s going on. On the other hand, what kind of understanding is there?”

And this, according to her, is where UP should step in. It should be the business of the University to develop among its students an intellectual competency that allows them to find applications for the information they encounter—draw inferences from them, evaluate arguments, weigh evidence, and relate them to real-life events.

Given all that UP must do, Cao notes that the reality is that the University must compete with 110 state universities and colleges for its allocation of the national budget. He also points out that part of today’s environment is the worldwide trend of decreasing government subsidies for higher education. “Over the past few years, we have been getting barely half of what we actually need. Universities in China, Japan, the US, and Europe are experiencing cutbacks in their budgets, as well,” he says. “On the one hand, this is good because it decreases government’s hold on UP. But, on the other hand, it forces UP to raise funds from various other sources, including private organizations that may have their own research agendas.”

All that said, is UP prepared to meet the demands of the 21st century environment?

Changes in the Board

If Republic Act No. 9500, or the new UP Charter, is anything to go by, the University seems to be moving into its second century with a strong sense of purpose. The Charter introduced significant changes to facilitate the University’s performance of its academic functions and its commitment to serve the nation.

For UP Vice President for Legal Affairs Theodore O. Te, the changes in the composition of the Board of Regents (BOR) have brought about welcome developments in the system of governance in UP.

Under the old Charter, the Commission on Higher Education (CHED) Secretary was the chair of the Board and the UP President the vice chair. By implication, the former enjoyed some form of ascendancy over the latter which, according to Te, was anachronistic given the University’s nature as an autonomous institution. Under the new Charter, they now sit as co-chairs and share equal authority in presiding over the BOR, which is a collegial body, with no one having more than one vote.

Since the BOR is the highest policy-making body of the University, President-elect Aquino’s choice of regents is critical to UP’s effectively performing its role as the country’s only national university. The CHED Secretary must understand and be in fundamental agreement with this role and with UP’s mandate to provide public service. Likewise, President Aquino’s other appointees to the BOR should be people who have a stake in UP and understand how it functions.

The new Charter has also given the UP President a clearer and bigger role in governing the University. He or she is described in separate provisions as chief academic officer, chief executive officer, and chief operating officer. “The President is now clearly, operationally, the person with the governance function,” says Te. “The BOR exercises policy-making powers, but it is the President who sees to the day-to-day activities of UP.”


VP for Legal Affairs Theodore O. Te

Another major change is the inclusion of the Staff Regent, allowing for broader representation in the Board. “For me, it is a good experiment in the University’s governance,” says Te. “But in terms of operations, we have only the experience of Mr. Buboy Cabrera to guide us in evaluating the role and value of the Staff Regent in the Board. But Mr. Cabrera is so far one of a kind right now. So I do not want to evaluate him at the moment because there is very little to go with in terms of actual performance. Let him finish his term first.”

Under the Charter, the Staff Regent is expressly tasked with representing the full-time permanent research, extension, and professional staff (REPS) and administration personnel. He or she shall be chosen by the REPS and personnel from their ranks and serve for a term of two years. Similarly, the Faculty Regent is tasked with representing all the teaching personnel and the Student Regent the entire studentry of the UP System.

In fact, the sectoral regents represent all the members of the sector that voted for them. They must therefore have the capacity to transcend their personal and/or political agendas and must be cognizant of what the majority of their constituency thinks of particular issues. They are accountable to their constituents for how well they carry out their functions and how closely they represent the majority’s interests. It might even be useful to have the different sectors voice their opinions as to the performance ratings of their representatives.

The Charter also clarifies the roles of the BOR and the University Council. Each supreme in its area of jurisdiction, the BOR is vested with administrative and corporate powers while the UC is recognized as the highest academic body of each constituent university. As such, the BOR will have to act on certain matters upon the recommendation of the UC, e.g., the institution, merger, or abolition of academic programs; graduation of students and grant of honors; conferment of honorary degrees; and approval of the rules on student discipline.

These changes notwithstanding, Te thinks that the BOR is still driven by the individual persons occupying it. “Theoretically, every regent should have no vision other than the welfare of the University and that ideally should go hand in hand with the vision of the President. It is after all the President who is going to implement that vision,” he pointed out. “But because regents are chosen by their own constituencies, each of them comes in with his own vision and specific ideas. I think it creates a situation where we have different visions operating within one single Board.” Te finds nothing wrong with the diversity of ideas and personalities in the BOR. “I welcome the fact that they have different opinions,” he explains, “but at the end of the day, the regents should be able to come up with a single, clear vision or decision that this is what UP is all about.”

Velasco agrees that the members of the BOR, being tasked with formulating a strategic vision for the University and safeguarding its fundamental principles and values, must embrace and fully grasp the essence and spirit of a true University. “While being mindful of their mandate, these people must rise above sectoral issues so that critical decisions are made in the interest of UP,” he says. However, given that the seven autonomous campuses of UP are expanding tremendously, each having developed its own organizational and academic culture, he suggests that they be allowed to have their own BOR or policy-making body that is appreciative of their respective concerns. The president will ensure campus linkages and collaboration despite having their own policy-making bodies.

Meanwhile, Diokno says that “what we have to remember is that the BOR is composed of individuals and so are the officials of UP,” she elaborates. “So part of it is also learning to navigate one’s way around these personalities.” Ultimately, she adds, it is the regents who define their positions by their leadership, their practices, and the strength of their ideas as individuals and as a collective body. The Charter is merely a document which the University will have to shape and frame by its practices, beliefs, and ideas.

How then should UP breathe life into the provisions of its new Charter?

Money matters, fiscal autonomy

RA 9500 allows UP to generate its own income by fixing the tuition rates, leasing its land grants and other real properties, entering into joint ventures, and other means. Cao, however, clarifies that UP has enjoyed the same fiscal autonomy since the 1970s through an executive order issued by former President Ferdinand Marcos.

“What is new,” he says, “is that the Charter now institutionalizes restrictions to how we may generate revenues through our assets.” Cao points to Paragraph C of Section 22, for example, that states that the BOR may plan, design, approve, and/or cause the implementation of land leases. However, such mechanisms and arrangements must sustain and protect the environment in accordance with law and be exclusive of the academic core zone of the UP campuses. Similarly, paragraph E of the same section allows UP to enter into joint ventures provided that it will not result in the alienation of the real properties of the University.

More restrictions are spelled out in Section 23, which provides for safeguards on the disposition of UP assets. It states that the lease for more than five years of the assets of the University is subject to several conditions and procedures, such as subjecting the transaction to a competitive and public bidding. Moreover, prior consultations with and concurrence of third-party experts are required.


UPD Chancellor Sergio S. Cao

If UP enters into a contract or engages in a transaction involving an amount of more than P50 million, it has to have the approval of at least three-fourths of all the members of the BOR. This particular provision, says Cao, can be tricky. “Under the old Charter, the Board is composed of 12 members and it is clear that you need nine votes to come up with the required three-fourths vote,” he explains. “But now we only have 11 Board members, which means three people voting against a contract, transaction, or policy is enough to block approval of measures, however beneficial they may be to the University.”

In many foreign universities, according to Velasco, subsidiary companies have been created to deal with the same constraints that UP is facing now. “This strategy has proven to be very successful without compromising the ideals of the university,” he says. “Take for example the Silicon Valley in California, where commercialization of university technologies led to further scholarly research and expansion of knowledge.”

Velasco is aware that there are certain sectors in UP that are opposed to the supposed commercialization of UP assets. “They may have valid concerns but adopting proper guidelines to avoid compromising the noble goals of UP should nullify these concerns,” he says. “For instance, there should be a determined percentage of the University income that should be allocated to financially supporting more students in terms of scholarships and support to student research. In this area, UP shall be able to creatively adopt applicable principles of social entrepreneurship where business and social responsibilities move hand in hand.”

In addition, Cao says, “We must raise research funds from private sources and our assets, as well as compete for available research grants worldwide. The truth is that academic leadership now does include a fund-raising function.”

Creating adequate knowledge

Given the new environment in which it operates, Diokno points out that UP should give importance to its accountability to the public. “By accountability to the public I do not, by any means, imply a diminution of our autonomy to make decisions on academic matters like what programs to offer, which campus to open, who to hire, what positions to create. We certainly have the prerogative to make those decisions autonomously,” she says. “By accountability to the public, I am referring to the question of how we play out our role in the life of the nation, given that 80 percent to 90 percent of our expenditures come from the government.”

Part of this accountability means that UP should be able to separate its public role from its academic role, although these are closely related to one another. According to Diokno, the academic role deals with the question of excellence, maintaining the highest possible standards in all of UP’s functions—teaching, research, and extension services. And as a university, its primary function is to create knowledge.

UP, however, is not producing enough knowledge, and Diokno sees the prevailing culture as part of the reason. “Faculty members find many reasons—heavy teaching load, low salary, etc.—for not doing research, realities that no doubt affect our academic life,” she says. “But Indian professors are worse paid than we are, they are grossly underpaid, but they publish. Their academic culture is deeply entrenched. You should see their work. Some of the best theoreticians in history now are in Indian academics.”

She further relates that during her term as Vice President for Academic Affairs, one of the things she had to grapple with was the level of research output in the University. Rather than consider sanctions, the Nemenzo administration combined a package of incentives and standards to help raise the level of research. These included financial incentives and awards for publications in all the disciplines and grants for postgraduate studies abroad. At the same time, faculty members had to publish locally or internationally as a prerequisite to tenure or promotion.

Seeing the necessity of augmenting faculty income to encourage research and creative work, the incentives initiated by the Nemenzo administration were continued by President Roman and her team. In addition to this, they introduced the Scientist Productivity System, as well as the Artist Productivity System. Various new grants were also introduced by the constituent universities over the past six years.

Diokno also underscores the University’s responsibility to operate beyond the needs of the market. “[This] means we do not offer programs in order to respond to what the market demands. If we did, then certain programs like mine, History, would probably have to be closed given the small number of our majors. We never meet our quota through the UP College Admission Test,” she says. “But as the National University, our role is to offer the best programs in light of our country’s needs. Some programs may not be marketable but we need them. Filipinos need to know our history, culture, and language.” It is in this sense that UP’s academic role is tightly intertwined with its public role. It offers programs which are less about market demands and more about the enrichment of public life. In other words, it offers courses with the interest of the nation in mind.

Paradigm of nationalism

Whereas, “UP has provided leadership in shaping our national consciousness with a strong flavor of ‘defensive and protective nationalism’” (Constantino, Leticia 1980), for Velasco, UP should now provide a mature leadership in evolving a productive paradigm of nationalism. This involves educating Filipinos into being national leaders who are not mere technocrats but, more importantly, are responsible citizens with integrity and genuine concern for the people. “It should be noted, however, that the various campuses of UP being a pluralistic community have responded differently to these challenges,” he says. “UP Los Baños and UP Manila, perhaps because of the nature of their academic disciplines, have silently responded by going to the barrios. On the other hand, the younger UP Diliman campus, because of its proximity to the national political arena, has responded by being the ‘conscience of the people’ in national political debates.”

And in further pursuit of the University’s mandate to serve the nation, he says that academic freedom is one UP tradition that must be kept and strengthened. “But we must practice it with due diligence and with open-mindedness,” he points out. “UP must educate students to practice academic freedom in pursuit of truth and in discovering knowledge.”

Thus, he continues, it is critical that UP be a research university with sound practice of science. “The role of research cannot be overemphasized in ensuring quality education in the university. Skill and knowledge in the scientific enterprise are indispensable aspects of education,” he explains.

But academic freedom, he warns, can also be dangerous because it fosters individualism. “It must then be balanced with a sense of service to our people,” he says. “This is the reason we in UP Los Baños prefer to be called Iskolar Para Sa Bayan. This is a reminder to all that we must practice academic freedom without losing sight of the fact that we are part of a broader community of Filipinos and that we are in UP to serve the nation. It is in this context that UP must take the lead in evolving nationalism among us.”

Same values, different rules

Cao believes that UP should hold on to the same values of excellence, leadership, and service which have guided it in the past 100 years. However, it must adjust its policies and rules to make these values work in its new environment.

If UP wants to strengthen its research capacity, for example, he suggests that the University adjust its hiring policy to make it consistent with such objective. This would involve having faculty members on two tracks: tenure-tra+ck and contractual, “say for periods of five years. Contractual faculty members may teach the service courses. They are very good at teaching and do not want to do research or creative work. Tenure-track faculty will do research or creative work and apply for tenure.”

He also says UP should encourage cross-disciplinary collaboration among its faculty members. He explains: “As a public service university, we should be able to address issues and concerns that affect our society. More often than not, societal problems inherently require a multi-disciplinary approach. Poverty, for example, is a complex issue that can be best addressed by combining the expertise of those in the social sciences, applied sciences, and perhaps even of those in the arts as well.”

Given its limited resources, UP should also find a way to rationalize its formula for allocating research grants among the faculty members. “If we give equal grants to everyone, each would be getting an amount too minimal to cover the entire cost of his or her research,” he says. “More points should probably be given to those who have already proven their capacity to do and actually publish their research.”

The same principle may be applied to the proposed adjustment of UP salary to make it competitive with the going rates in the private industry. Under the new Charter, UP is allowed to give its employees more than what the Salary Standardization Law provides but the excess will have to come from its own income. UP generates an annual income of around P930 million. The salaries of the University’s administrative staff cost around the same figure. “This puts us in a difficult position,” says Cao. “If we implement an across-the-board increase, what we would all be getting is a negligible amount, which defeats the purpose of raising our salaries to be at par with industry rates. But, if we implement a merit-based or length-of-service-based increase, this may not sit well with some members of the community.”

As an institution, UP pushed its constituent universities to move forward together. Most of its policies are applied uniformly system-wide. It submits to Congress one budget proposal to cover all of its seven campuses.

Cao believes, that while this may not be a popular idea, it is time UP recognized the differences of its constituent universities and considered them as independent entities. “Perhaps a culture of competition among our campuses may be good for us,” he says. “Our constituent universities have different needs and therefore should come up with their individual budget proposals. We also have different mandates and therefore should be ranked as individual universities.”

Internationalization, what’s in it for UP?

In a networked environment, UP will do well to be open to and comfortable with the free flow of information and ideas. Velasco says linkages and collaboration with foreign academic institutions are essential for an academic institution. “We have in UP many faculty members and researchers who have been educated overseas and they have greatly enriched the intellectuality and academic culture in the University,” he explains. “UP must consistently benchmark with foreign universities so that we can learn from their experiences. But we should choose only practices that are relevant to UP. This should also be an opportunity to test the soundness and robustness of our own practice of critical thinking and science.”

“We also hope to bring foreign experts here in UP but, aside from the fact that we have limited resources, our law does not allow us to give them tenure,” says Cao. “So we need to be creative with arrangements that will allow us to internationalize. One such way is through collaborative research projects that may be implemented online and through video conferencing. Such collaborative projects will enable UP researchers to have access to data, equipment, resources, that are otherwise unavailable to us because we may not have the resources to acquire them.”

While Diokno supports internationalization, she says that the University should determine the purpose, control the modality, and define the extent of its foray into the global academic community. “If we want to internationalize, my first question is why? What do we hope to gain? How do we accomplish our objectives? In other words, we should be interested in what UP will gain from the experience,” she explains. “I think it would be good for American students to come to UP and learn Philippine history from our point of view, especially how we look at the American colonial period,” she says.

“We should keep our collaborations as close as possible to our objectives as the National University,” Cao says. “When we work on science and technology, for example, it should be done for national development and within the context of Philippine culture.”

Velasco notes that national interest must naturally come first but internationalization does not necessarily have to be viewed as being contradictory to UP’s efforts toward nationalism. “In fact, internationalization should give us the opportunity to strengthen and feel confident of our nationality,” he says. “It appears that those who have lived overseas for some years and have been exposed to other cultures develop a stronger sense of love for country and people, and a better appreciation and understanding of our own culture.”

This way, internationalization does not have to be in diametrical opposition to nationalism. They are parallel goals the National University can, and should, pursue concurrently.

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