Consti2 Academic Freedom

7/29/2019 Consti2 Academic Freedom

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ACADEMIC FREEDOM

GARCIA VS. FACULTY OF ADMISSION – 68 SCRA 277 (1975)

The specific issue posed by this mandamus proceeding to compel the Faculty Admission Committee of the Loyola School of Theology, represented by Father AntonioB. Lambino, to allow petitioner Epicharis T. Garcia, to continue studying therein iswhether she is deemed possessed of such a right that has to be respected. That isdenied not only on general principle, but also in view of the character of the particular educational institution involved. It is a seminary. It would appear therefore that at mostshe can lay claim to a privilege, no duty being cast on respondent school. Moreover, asa reinforcement to such an obvious conclusion, there is the autonomy recognized by theConstitution in this explicit language: "All institutions of higher learning shall enjoyacademic freedom." 1 The petition must therefore fail.

Petitioner alleged: "3. That in summer, 1975, Respondent admitted Petitioner for studiesleading to an M.A. in Theology; 4. That on May 30, 1975, when Petitioner wanted toenroll for the same course for the first semester, 1975-76, Respondent told her aboutthe letter he had written her, informing her of the faculty's decision to bar her from re-admission in their school; 5. That the reasons stated in said letter, dated May 19, 1975... do not constitute valid legal ground for expulsion, for they neither present anyviolation of any of the school's regulation, nor are they indicative of gross misconduct; 6.That from June 25, 1975, Petitioner spent much time and effort in said school for thepurpose of arriving at a compromise that would not duly inconvenience the professorsand still allow her to enjoy the benefits of the kind of instruction that the school has tooffer, but all in vain; she was in fact told by Fr. Pedro Sevilla, the school's Director, that

the compromises she was offering were unacceptable, their decision was final, and thatit were better for her to seek for admission at the UST Graduate School; 7 Petitioner then subsequently made inquiries in said school, as to the possibilities for her pursuingher graduate studies for an for M.A. in Theology, and she was informed that she couldenroll at the UST Ecclesiastical Faculties, but that she would have to fulfill their requirements for Baccalaureate in Philosophy in order to have her degree later inTheology — which would entail about four to five years more of studies — whereas inthe Loyola School of Studies to which she is being unlawfully refused readmission, itwould entail only about two years more; 8. That Petitioner, considering that time was of the essence in her case, and not wanting to be deprived of an opportunity for gainingknowledge necessary for her life's work, enrolled as a special student at said USTEcclesiastical Faculties, even if she would not thereby be credited with any academicunits for the subject she would take; 9. That Petitioner could have recourse neither tothe President of her school, Fr. Jose Cruz, he being with the First Couple's entouragenow in Red China, nor with the Secretary of Education, since this is his busiest time of the year, and June 11, 1975 is the last day for registration; ... " 2 She prayed for a writ of mandamus for the purpose of allowing her to enroll in the current semester. She made itmore specific in a pleading she called Amended Petition so that she would be allowedcross-enrollment even beyond the June 11, 1975 deadline for registration and that



whatever units may be accredited to her in the UST Ecclesiastical Faculties be likewiserecognized by respondent. Her petition included the letter of respondent Father Lambino which started on a happy note that she was given the grade of B+ and B in twotheology subjects, but ended in a manner far from satisfactory for her, as shown by thisportion thereof: "Now, you will have to forgive me for going into a matter which is not too

pleasant. The faculty had a meeting after the summer session and several members arestrongly opposed to having you back with us at Loyola School of Theology. In the spiritof honesty may I report this to you as their reason: They felt that your frequentquestions and difficulties were not always pertinent and had the effect of slowing downthe progress of the class; they felt you could have tried to give the presentation achance and exerted more effort to understand the point made before immediatelythinking of difficulties and problems. The way things are, I would say that the advisabilityof your completing a program (with all the course work and thesis writing) with us is veryquestionable. That you have the requisite intellectual ability is not to be doubted. But itwould seem to be in your best interests to work with a faculty that is more compatiblewith your orientation. I regret to have to make this report, but I am only thinking of your

welfare."

3

This Court, in a resolution of June 23, 1975, required comment on the part of respondent Faculty Admission Committee, Loyola School of Theology. 4 As submittedon behalf of Father Lambino, it set forth the following: "Respondent is the Chairman of the Faculty Admission Committee of the Loyola School of Theology, which is a religiousseminary situated in Loyola Heights, Quezon City; In collaboration with the Ateneo deManila University, the Loyola School of Theology allows some lay students to attend itsclasses and/or take courses in said Loyola School of Theology but the degree, if any, tobe obtained from such courses is granted by the Ateneo de Manila University and notby the Loyola School of Theology; For the reason above given, lay students admitted tothe Loyola School of Theology to take up courses for credit therein have to be officiallyadmitted by the Assistant Dean of the Graduate School of the Ateneo de ManilaUniversity in order for them to be considered as admitted to a degree program ;Petitioner in the summer of 1975 was admitted by respondent to take some courses for credit but said admission was not an admission to a degree program because only the

Assistant Dean of the Ateneo de Manila Graduate School can make such admission;That in the case of petitioner, no acceptance by the Assistant Dean of the Ateneo deManila Graduate School was given, so that she was not accepted to a degree programbut was merely allowed to take some courses for credit during the summer of 1975;Furthermore, petitioner was not charged a single centavo by the Loyola School of Theology and/or the Ateneo de Manila University in connection with the courses shetook in the summer of 1975, as she was allowed to take it free of charge; Thatrespondent Fr. Antonio B. Lambino, S.J., and/or the Loyola School of Theology thru itsFaculty Admission Committee, necessarily has discretion as to whether to admit and/or to continue admitting in the said school any particular student, considering not onlyacademic or intellectual standards but also other considerations such as personalitytraits and character orientation in relation with other students as well as considering thenature of Loyola School of Theology as a seminary. The Petition for Mandamus therefore does not lie, as there is no duty, much less a clear duty, on the part of



respondent to admit the petitioner therein in the current year to take up further coursesin the Loyola School of Theology." 5 It was likewise alleged in the aforesaid commentthat as set forth in the letter of May 19, 1975, the decision not to allow petitioner to takeup further courses in said seminary "is not arbitrary, as it is based on reasonablegrounds, ... ." 6 Then reference was made to the availability of non-judicial remedies

which petitioner could have pursued.

7

The prayer was for the dismissal of the petitionfor lack of merit. Petitioner sought permission to reply and it was granted. Thereafter,she had a detailed recital of why under the circumstances she is entitled to relief fromthe courts. In a resolution of August 8, 1975, this Court considered the comment of respondent as answer and required the parties to file their respective memoranda. Thatthey did, and the petition was deemed submitted for decision. As was made clear at theoutset, we do not see merit in it. It must therefore be dismissed.

1. In respondent's memorandum, it was made clear why a petition for mandamus is notthe proper remedy. Thus: "Petitioner cannot compel by mandamus, the respondent toadmit her into further studies in the Loyola School of Theology. For respondent has no

clear duty to so admit the petitioner. The Loyola School of Theology is a seminary for the priesthood. Petitioner is admittedly and obviously not studying for the priesthood,she being a lay person and a woman. And even assuming ex gratia argumenti that sheis qualified to study for the priesthood, there is still no duty on the part of respondent toadmit her to said studies, since the school has clearly the discretion to turn down evenqualified applicants due to limitations of space, facilities, professors and optimumclassroom size and component considerations." 8 No authorities were cited, respondentapparently being of the view that the law has not reached the stage where the matter of admission to an institution of higher learning rests on the sole and uncontrolleddiscretion of the applicant. There are standards that must be met. There are policies tobe pursued. Discretion appears to be of the essence. In terms of Hohfeld's terminology,what a student in the position of petitioner possesses is a privilege rather than a right.She cannot therefore satisfy the prime and indispensable requisite of a mandamusproceeding. Such being the case, there is no duty imposed on the Loyola School of Theology. In a rather comprehensive memorandum of petitioner, who unfortunately didnot have counsel, an attempt was made to dispute the contention of respondent. Therewas a labored effort to sustain her stand, but it was not sufficiently persuasive. It isunderstandable why. It was the skill of a lay person rather than a practitioner that wasevident. While she pressed her points with vigor, she was unable to demonstrate theexistence of the clear legal right that must exist to justify the grant of this writ.

2. Nor is this all. There is, as previously noted, the recognition in the Constitution of institutions of higher learning enjoying academic freedom. It is more often identified withthe right of a faculty member to pursue his studies in his particular specialty andthereafter to make known or publish the result of his endeavors without fear thatretribution would be visited on him in the event that his conclusions are found distastefulor objectionable to the powers that be, whether in the political, economic, or academicestablishments. For the sociologist, Robert McIver it is "a right claimed by the accreditededucator, as teacher and as investigator, to interpret his findings and to communicatehis conclusions without being subjected to any interference, molestation, or penalization



because these conclusions are unacceptable to some constituted authority within or beyond the institution." 9 As for the educator and philosopher Sidney Hook, this is hisversion: "What is academic freedom? Briefly put, it is the freedom of professionallyqualified persons to inquire, discover, publish and teach the truth as they see it in thefield of their competence. It is subject to no control or authority except the control or

authority of the rational methods by which truths or conclusions are sought andestablished in these disciplines." 10

3. That is only one aspect though. Such a view does not comprehend fully the scope of academic freedom recognized by the Constitution. For it is to be noted that thereference is to the "institutions of higher learning" as the recipients of this boon. It wouldfollow then that the school or college itself is possessed of such a right. It decides for itself its aims and objectives and how best to attain them. It is free from outside coercionor interference save possibly when the overriding public welfare calls for some restraint.It has a wide sphere of autonomy certainly extending to the choice of students. Thisconstitutional provision is not to be construed in a niggardly manner or in a gradging

fashion. That would be to frustrate its purpose, nullify its intent. Former PresidentVicente G. Sinco of the University of the Philippines, in his Philippine Political Law, issimilarly of the view that it "definitely grants the right of academic freedom to theuniversity as an institution as distinguished from the academic freedom of a universityprofessor." 11 He cited the following from Dr. Marcel Bouchard, Rector of the Universityof Dijon, France, President of the conference of rectors and vice-chancellors of European universities: " "It is a well-established fact, and yet one which sometimestends to be obscured in discussions of the problems of freedom, that the collectiveliberty of an organization is by no means the same thing as the freedom of the individualmembers within it; in fact, the two kinds of freedom are not even necessarily connected.In considering the problems of academic freedom one must distinguish, therefore,between the autonomy of the university, as a corporate body, and the freedom of theindividual university teacher." " 12 Also: "To clarify further the distinction between thefreedom of the university and that of the individual scholar, he says: "The personalaspect of freedom consists in the right of each university teacher — recognized andeffectively guaranteed by society — to seek and express the truth as he personally seesit, both in his academic work and in his capacity as a private citizen. Thus the status of the individual university teacher is at least as important, in considering academicfreedom, as the status of the institutions to which they belong and through which theydisseminate their learning."' 13 He likewise quoted from the President of the Queen'sUniversity in Belfast, Sir Eric Ashby: "'The internal conditions for academic freedom in auniversity are that the academic staff should have de facto control of the followingfunctions: (i) the admission and examination of students; (ii) the curricula for courses of study; (iii) the appointment and tenure of office of academic staff; and (iv) the allocationof income among the different categories of expenditure. It would be a poor prospect for academic freedom if universities had to rely on the literal interpretation of their constitutions in order to acquire for their academic members control of these four functions, for in one constitution or another most of these functions are laid on theshoulders of the law governing body .'" 14 Justice Frankfurter, with his extensivebackground in legal education as a former Professor of the Harvard Law School,



referred to what he called the business of a university and the four essential freedoms inthe following language: "It is the business of a university to provide that atmospherewhich is most conducive to speculation, experiment and creation. It is an atmosphere inwhich there prevail "the four essential freedoms" of a university — to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and

who may be admitted to study."

15

Thus is reinforced the conclusion reached by us thatmandamus does not lie in this case.

4. It is not an easy matter then to disregard the views of persons knowledgeable in thefield, to whom cannot be imputed lack of awareness of the need to respect freedom of thought on the part of students and scholars. Moreover, it could amount to minimizingthe full respect that must be accorded the academic freedom expressly granted by theConstitution "to institutions of higher learning." It is equally difficult to yield conformity tothe approach taken that colleges and universities should be looked upon as publicutilities devoid of any discretion as to whom to admit or reject. Education, especiallyhigher education, belongs to a different, and certainly higher, category.

5. It only remains to be added that the futility that marked the persistence of petitioner tocontinue her studies in the Loyola School of Theology is the result solely of a legalappraisal of the situation before us. The decision is not to be construed as in any wayreflecting on the scholastic standing of petitioner. There was on the part of respondentdue acknowledgment of her intelligence. Nonetheless, for reasons explained in theletter of Father Lambino, it was deemed best, considering the interest of the school aswell as of the other students and her own welfare, that she continue her graduate workelsewhere. There was nothing arbitrary in such appraisal of the circumstances deemedrelevant. It could be that on more mature reflection, even petitioner would realize thather transfer to some other institution would redound to the benefit of all concerned. At

any rate, as indicated earlier, only the legal aspect of the controversy was touched uponin this decision.

WHEREFORE, the petition is dismissed for lack of merit.

DLSU VS. CA – 541 SCRA 22



NAGTATAGIS sa kasong ito ang karapatang mag-aral ng apat na estudyante nanasangkot sa away ng dalawang fraternity at ang karapatang akademiko ng isangpamantasan.

PRIVATE respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and

Roberto Valdes, Jr. are members of Tau Gamma Phi Fraternity who were expelled bythe De La Salle University (DLSU) and College of Saint Benilde (CSB)1 Joint DisciplineBoard because of their involvement in an offensive action causing injuries to petitioner James Yap and three other student members of Domino Lux Fraternity. This is thebackdrop of the controversy before Us pitting private respondents' right to education vis- a-vis the University's right to academic freedom.

ASSAILED in this Petition for Certiorari , Prohibition and Mandamus under Rule 65 of the Rules of Court are the following: (1) Resolution of the Court of Appeals (CA) datedJuly 30, 1996 dismissing DLSU's petition for certiorari against respondent Judge andprivate respondents Aguilar, Bungubung, Reverente, and Valdes, Jr.;2 (2) Resolution of

the CA dated October 15, 1996 denying the motion for reconsideration;

3

(3) Order datedJanuary 7, 1997 of the Regional Trial Court (RTC), Branch 36 Manila granting privaterespondent Aguilar's motion to reiterate writ of preliminary injunction;

4 and (4)

Resolution No. 181-96 dated May 14, 1996 of the Commission on Higher Education(CHED) exonerating private respondent Aguilar and lowering the penalties for the other private respondents from expulsion to exclusion.

5

Factual Antecedents

Gleaned from the May 3, 1995 Decision of the DLSU-CSB Joint Discipline Board, twoviolent incidents on March 29, 1995 involving private respondents occurred:

x x x From the testimonies of the complaining witnesses, it appears that oneweek prior to March 29, 1995, Mr. James Yap was eating his dinner alone inManang's Restaurant near La Salle, when he overheard two men bad-mouthingand apparently angry at Domino Lux. He ignored the comments of the two. Whenhe arrived at his boarding house, he mentioned the remarks to his two other brods while watching television. These two brods had earlier finished eating their dinner at Manang's. Then, the three, together with four other persons went backto Manang's and confronted the two who were still in the restaurant. Byadmission of respondent Bungubung in his testimony, one of the two was amember of the Tau Gamma Phi Fraternity. There was no rumble or physicalviolence then.

After this incident, a meeting was conducted between the two heads of thefraternity through the intercession of the Student Council. The Tau Gamma PhiFraternity was asking for an apology. "Kailangan ng apology" in the words of respondent Aguilar. But no apology was made.

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Then, 5 members of the Tau Gamma Phi Fraternity went to the tambayan of theDomino Lux Fraternity in the campus. Among them were respondentsBungubung, Reverente and Papio. They were looking for a person whosedescription matched James Yap. According to them, this person supposedly"nambastos ng brod ." As they could not find Mr. Yap, one of them remarked

"Paano ba iyan. Pasensiya na lang ."

Came March 29, 1995 and the following events.

Ten minutes before his next class at 6:00 p.m., Mr. James Yap went out of thecampus using the Engineering Gate to buy candies across Taft Avenue. As hewas about to re-cross Taft Avenue, he heard heavy footsteps at his back. Eightto ten guys were running towards him. He panicked. He did not know what to do.Then, respondent Bungubung punched him in the head with something heavy inhis hands – "parang knuckles." Respondents Reverente and Lee were behindYap, punching him. Respondents Bungubung and Valdes who were in front of

him, were also punching him. As he was lying on the street, respondent Aguilar kicked him. People shouted; guards arrived; and the group of attackers left.

Mr. Yap could not recognize the other members of the group who attacked him.With respect to respondent Papio, Mr. Yap said "hindi ko nakita ang mukha niya,hindi ko nakita sumuntok siya ." What Mr. Yap saw was a long haired guy alsorunning with the group.

Two guards escorted Mr. Yap inside the campus. At this point, Mr. DennisPascual was at the Engineering Gate. Mr. Pascual accompanied Yap to theuniversity clinic; reported the incident to the Discipline Office; and informed his

fraternity brods at their tambayan. According to Mr. Pascual, their head of theDomino Lux Fraternity said: "Walang gagalaw. Uwian na lang ."

Mr. Ericson Cano, who was supposed to hitch a ride with Dennis Pascual, sawhim under the clock in Miguel Building. However, they did not proceed directly for home. With a certain Michael Perez, they went towards the direction of DagonoyStreet because Mr. Pascual was supposed to pick up a book for his friend fromanother friend who lives somewhere in the area.

As they were along Dagonoy Street, and before they could pass the Kolehiyo ngMalate Restaurant, Mr. Cano first saw several guys inside the restaurant. He said

not to mind them and just keep on walking. However, the group got out of therestaurant, among them respondents Reverente, Lee and Valdes. Mr. Cano toldMr. Lee: "Ayaw namin ng gulo ." But, respondent Lee hit Mr. Cano withoutprovocation. Respondent Reverente kicked Mr. Pascual and respondent Lee alsohit Mr. Pascual. Mr. Cano and Mr. Perez managed to run from the mauling andthey were chased by respondent Lee and two others.



Mr. Pascual was left behind. After respondent Reverente first kicked him, Mr.Pascual was ganged-upon by the rest. He was able to run, but the group wasable to catch up with him. His shirt was torn and he was hit at the back of hishead with a lead pipe. Respondent Lee who was chasing Cano and Perez, thenreturned to Mr. Pascual.

Mr. Pascual identified respondents Reverente and Lee, as among those who hithim. Although Mr. Pascual did not see respondent Valdes hit him, he identifiedrespondent Valdez (sic ) as also one of the members of the group.

In fact, Mr. Cano saw respondent Valdes near Mr. Pascual. He was almost near the corner of Leon Guinto and Estrada; while respondent Pascual who managedto run was stopped at the end of Dagonoy along Leon Guinto. RespondentValdes shouted: "Mga putang-ina niyo ." Respondent Reverente hit Mr. Pascualfor the last time. Apparently being satisfied with their handiwork, the group left.The victims, Cano, Perez and Pascual proceeded to a friend's house and waited

for almost two hours, or at around 8:00 in the evening before they returned to thecampus to have their wounds treated. Apparently, there were three cars roamingthe vicinity.

6

The mauling incidents were a result of a fraternity war. The victims, namely: petitioner James Yap and Dennis Pascual, Ericson Cano, and Michael Perez, are members of the"Domino Lux Fraternity," while the alleged assailants, private respondents Alvin Aguilar,James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of "Tau Gamma Phi Fraternity," a rival fraternity.

The next day, March 30, 1995, petitioner Yap lodged a complaint7 with the Discipline

Board of DLSU charging private respondents with "direct assault." Similar complaints

8

were also filed by Dennis Pascual and Ericson Cano against Alvin Lee and privaterespondents Valdes and Reverente. Thus, cases entitled "De La Salle University and College of St. Benilde v. Alvin Aguilar (AB-BSM/9152105), James Paul Bungubung (AB- PSM/9234403), Robert R. Valdes, Jr. (BS-BS-APM/9235086), Alvin Lee (EDD/9462325), Richard Reverente (AB-MGT/9153837) and Malvin A. Papio (AB- MGT/9251227)" were docketed as Discipline Case No. 9495-3-25121.

The Director of the DLSU Discipline Office sent separate notices to private respondents Aguilar, Bungubung and Valdes, Jr. and Reverente informing them of the complaintsand requiring them to answer. Private respondents filed their respective answers.

9

As it appeared that students from DLSU and CSB10 were involved in the maulingincidents, a joint DLSU-CSB Discipline Board11 was formed to investigate the incidents.Thus, petitioner Board Chairman Emmanuel Sales sent notices of hearing12 to privaterespondents on April 12, 1995. Said notices uniformly stated as follows:

Please be informed that a joint and expanded Discipline Board had beenconstituted to hear and deliberate the charge against you for violation of CHED



























Order No. 4 arising from the written complaints of James Yap, Dennis C.Pascual, and Ericson Y. Cano.

You are directed to appear at the hearing of the Board scheduled on April 19,1995 at 9:00 a.m. at the Bro. Connon Hall for you and your witnesses to give

testimony and present evidence in your behalf. You may be assisted by a lawyer when you give your testimony or those of your witnesses.

On or before April 18, 1995, you are further directed to provide the Board,through the Discipline Office, with a list of your witnesses as well as the swornstatement of their proposed testimony.

Your failure to appear at the scheduled hearing or your failure to submit the list of witnesses and the sworn statement of their proposed testimony will beconsidered a waiver on your part to present evidence and as an admission of theprincipal act complained of.

For your strict compliance.13

During the proceedings before the Board on April 19 and 28, 1995, private respondentsinterposed the common defense of alibi, summarized by the DLSU-CSB Joint DisciplineBoard as follows:

First, in the case of respondent Bungubung, March 29, 1995 was one of the fewinstances when he was picked-up by a driver, a certain Romeo S. Carillo. Most of the time, respondent Bungubung goes home alone sans driver. But on thisparticular date, respondent Bungubung said that his dad asked his permission to

use the car and thus, his dad instructed this driver Carillo to pick-up his son. Mr.Carillo is not a family driver, but works from 8:00 a.m. to 5:00 p.m. for thePhilippine Ports Authority where the elder Bungubung is also employed.

Thus, attempting to corroborate the alibi of respondent Bungubung, Mr. Carillosaid that he arrived at La Salle at 4:56 p.m.; picked-up respondent at 5:02 p.m.;took the Roxas Blvd. route towards respondent's house in BF Parañaque (on aWednesday in Baclaran); and arrived at the house at 6:15 p.m. RespondentBungubung was dropped-off in his house, and taking the same route back, Mr.Carillo arrived at the South Harbor at 6:55 p.m. the Philippine Ports Authority islocated at the South Harbor .14

x x x x

Secondly, respondent Valdes said that he was with his friends at McDonald's Taft just before 6:00 p.m. of March 29, 1995. He said that he left McDonald at 5:50p.m. together to get some medicine at the university clinic for his throat irritation.He said that he was at the clinic at 5:52 p.m. and went back to McDonald, allwithin a span of 3 or even 4 minutes.











Two witnesses, a certain Sharon Sia and the girlfriend of respondent Valdes, acertain Jorgette Aquino, attempted to corroborate Valdez' alibi.

15

x x x x

Third, respondent Reverente told that (sic) the Board that he was at his home at5:00 p.m. of March 29, 1995. He said that he was given the responsibility to bethe paymaster of the construction workers who were doing some works in theapartment of his parents. Although he had classes in the evening, the workersaccording to him would wait for him sometimes up to 9:00 p.m. when he arrivesfrom his classes. The workers get paid everyday.

Respondent Reverente submitted an affidavit, unsigned by the workers listedthere, supposedly attesting to the fact that he paid the workers at the date andtime in question.

16

x x x x

Fourth, respondent Aguilar "solemnly sw[ore] that [he] left DLSU at 5:00 p.m. for Camp Crame for a meeting with some of the officers that we were preparing. "

17

On May 3, 1995, the DLSU-CSB Joint Discipline Board issued a Resolution18

findingprivate respondents guilty. They were meted the supreme penalty of automaticexpulsion,19 pursuant to CHED Order No. 4.20 The dispositive part of the resolutionreads:

WHEREFORE, considering all the foregoing, the Board finds respondents ALVIN

AGUILAR (AB-BSM/9152105), JAMES PAUL BUNGUBUNG (AB-PSM/9234403), ALVIN LEE (EDD/94623250) and RICHARD V. REVERENTE(AB-MGT/9153837) guilty of having violated CHED Order No. 4 and therebyorders their automatic expulsion.

In the case of respondent MALVIN A. PAPIO (AB-MGT/9251227), the Boardacquits him of the charge.

SO ORDERED.21

Private respondents separately moved for reconsideration22

before the Office of the

Senior Vice-President for Internal Operations of DLSU. The motions were all denied in aLetter-Resolution23 dated June 1, 1995.

On June 5, 1995, private respondent Aguilar filed with the RTC, Manila, againstpetitioners a petition for certiorari and injunction under Rule 65 of the Rules of Courtwith prayer for temporary restraining order (TRO) and/or writ of preliminary injunction. Itwas docketed as Civil Case No. 95-74122 and assigned to respondent Judge of Branch36. The petition essentially sought to annul the May 3, 1995 Resolution of the DLSU-




































CSB Joint Discipline Board and the June 1, 1995 Letter-Resolution of the Office of theSenior Vice-President for Internal Affairs.

The following day, June 6, 1995, respondent Judge issued a TRO24 directing DLSU, itssubordinates, agents, representatives and/or other persons acting for and in its behalf to

refrain and desist from implementing Resolution dated May 3, 1995 and Letter-Resolution dated June 1, 1995 and to immediately desist from barring the enrollment of Aguilar for the second term of school year (SY) 1995.

Subsequently, private respondent Aguilar filed an ex parte motion to amend his petitionto correct an allegation in paragraph 3.21

25 of his original petition. Respondent Judge

amended the TRO26 to conform to the correction made in the amended petition.27

On June 7, 1995, the CHED directed DLSU to furnish it with copies of the case recordsof Discipline Case No. 9495-3-25121,

28 in view of the authority granted to it under

Section 77(c) of the Manual of Regulations for Private Schools (MRPS).

On the other hand, private respondents Bungubung and Reverente, and later, Valdes,filed petitions-in-intervention29 in Civil Case No. 95-74122. Respondent Judge alsoissued corresponding temporary restraining orders to compel petitioner DLSU to admitsaid private respondents.

On June 19, 1995, petitioner Sales filed a motion to dismiss30

in behalf of all petitioners,except James Yap. On June 20, 1995, petitioners filed a supplemental motion todismiss31 the petitions-in-intervention.

On September 20, 1995, respondent Judge issued an Order 32 denying petitioners'

(respondents there) motion to dismiss and its supplement, and granted privaterespondents' (petitioners there) prayer for a writ of preliminary injunction. The pertinentpart of the Order reads:

For this purpose, respondent, its agents, representatives or any and all other persons acting for and in its behalf is/are restrained and enjoined from –

1. Implementing and enforcing the Resolution dated May 3, 1995 orderingthe automatic expulsion of petitioner and the petitioners-in-interventionfrom the De La Salle University and the letter-resolution dated June 1,1995, affirming the Resolution dated May 3, 1995; and

2. Barring the enrolment of petitioner and petitioners-in-intervention in thecourses offered at respondent De La Salle University and to immediatelyallow them to enroll and complete their respective courses/degrees untiltheir graduation thereat in accordance with the standards set by the latter.


































WHEREFORE, the ancillary remedy prayed for is granted. Respondent, itsagents, representatives, or any and all persons acting for and its behalf arehereby restrained and enjoyed from:

1. Implementing and enforcing the Resolution dated May 3, 1995 ordering

the automatic expulsion of petitioner and petitioners-in-intervention andthe Letter-Resolution dated June 1, 1995; and

2. Barring the enrollment of petitioner and petitioners-in-intervention in thecourses offered at respondent (De La Salle University) and to forthwithallow all said petitioner and petitioners-in-intervention to enroll andcomplete their respective courses/degrees until their graduation thereat.

The Writ of Preliminary Injunction shall take effect upon petitioner andpetitioners-in-intervention posting an injunctive bond in the amount of P15,000.00executed in favor of respondent to the effect that petitioner and petitioners-in-

intervention will pay to respondent all damages that the latter may suffer byreason of the injunction if the Court will finally decide that petitioner andpetitioners-in-intervention are not entitled thereto.

The motion to dismiss and the supplement thereto is denied for lack of merit.Respondents are directed to file their Answer to the Petition not later than fifteen(15) days from receipt thereof.

SO ORDERED.33

Despite the said order, private respondent Aguilar was refused enrollment by petitioner

DLSU when he attempted to enroll on September 22, 1995 for the second term of SY1995-1996. Thus, on September 25, 1995, Aguilar filed with respondent Judge anurgent motion to cite petitioners (respondents there) in contempt of court .

34 Aguilar also

prayed that petitioners be compelled to enroll him at DLSU in accordance withrespondent Judge's Order dated September 20, 1995. On September 25, 1995,respondent Judge issued

35 a writ of preliminary injunction, the relevant portion of which

reads:

IT IS HEREBY ORDERED by the undersigned of the REGIONAL TRIAL COURTOF MANILA that until further orders, you the said DE LA SALLE University aswell as your subordinates, agents, representatives, employees and any other

person assisting or acting for or on your behalf, to immediately desist fromimplementing the Resolution dated May 3, 1995 ordering the automatic expulsionof petitioner and the intervenors in DLSU, and the letter-resolution dated June 1,1995 affirming the said Resolution of May 3, 1995 and to immediately desist frombarring the enrolment of petitioner and intervenors in the courses offered atDLSU and to allow them to enroll and complete their degree courses until their graduation from said school.36


















On October 16, 1995, petitioner DLSU filed with the CA a petition for certiorar i37 (CA-G.R. SP No. 38719) with prayer for a TRO and/or writ of preliminary injunction to enjointhe enforcement of respondent Judge's September 20, 1995 Order and writ of preliminary injunction dated September 25, 1995.

On April 12, 1996, the CA granted petitioners' prayer for preliminary injunction.

On May 14, 1996, the CHED issued its questioned Resolution No. 181-96,summarily disapproving the penalty of expulsion for all private respondents. Asfor Aguilar, he was to be reinstated, while other private respondents were to beexcluded.

38 The Resolution states:

RESOLUTION 181-96

RESOLVED THAT THE REQUEST OF THE DE LA SALLE UNIVERSITY(DLSU), TAFT AVENUE, MANILA FOR THE APPROVAL OF THE PENALTY OF

EXPULSION IMPOSED ON MR. ALVIN AGUILAR, JAMES PAULBUNGUBUNG, ROBERT R. VALDES, JR., ALVIN LEE AND RICHARD V.REVERENTE BE, AS IT IS HEREBY IS, DISAPPROVED.

RESOLVED FURTHER, THAT THE COMMISSION DIRECT THE DLSU TOIMMEDIATELY EFFECT THE REINSTATEMENT OF MR. AGUILAR AND THELOWERING OF THE PENALTY OF MR. JAMES PAUL BUNGUBUNG, MR.ROBER R. VALDEZ, JR., (sic) MR. ALVIN LEE AND MR. RICHARD V.REVERENTE FROM EXPULSION TO EXCLUSION.39

Despite the directive of CHED, petitioner DLSU again prevented private respondent

Aguilar from enrolling and/or attending his classes, prompting his lawyer to write severaldemand letters40

to petitioner DLSU. In view of the refusal of petitioner DLSU to enrollprivate respondent Aguilar, CHED wrote a letter dated June 26, 1996 addressed topetitioner Quebengco requesting that private respondent Aguilar be allowed to continueattending his classes pending the resolution of its motion for reconsideration of Resolution No. 181-96. However, petitioner Quebengco refused to do so, promptingCHED to promulgate an Order dated September 23, 1996 which states:

Acting on the above-mentioned request of Mr. Aguilar through counsel enjoiningDe La Salle University (DLSU) to comply with CHED Resolution 181-96 (Re: Expulsion Case of Alvin Aguilar, et al. v. DLSU ) directing DLSU to reinstate Mr.

Aguilar and finding the urgent request as meritorious, there being no other plainand speedy remedy available, considering the set deadline for enrollment thiscurrent TRIMESTER, and in order to prevent further prejudice to his rights as astudent of the institution, DLSU, through the proper school authorities, is herebydirected to allow Mr. Alvin Aguilar to provisionally enroll, pending theCommission's Resolution of the instant Motion for Reconsideration filed byDLSU.


















SO ORDERED.41

Notwithstanding the said directive, petitioner DLSU, through petitioner Quebengco, stillrefused to allow private respondent Aguilar to enroll. Thus, private respondent Aguilar'scounsel wrote another demand letter to petitioner DLSU.

42

Meanwhile, on June 3, 1996, private respondent Aguilar, using CHED Resolution No.181-96, filed a motion to dismiss

43 in the CA, arguing that CHED Resolution No. 181-96

rendered the CA case moot and academic.

On July 30, 1996, the CA issued its questioned resolution granting the motion todismiss of private respondent Aguilar, disposing thus:

THE FOREGOING CONSIDERED, dismissal of herein petition is herebydirected.

SO ORDERED.

44

On October 15, 1996, the CA issued its resolution denying petitioners' motion forreconsideration, as follows:

It is obvious to Us that CHED Resolution No. 181-96 is immediately executory incharacter, the pendency of a Motion for Reconsideration notwithstanding.

After considering the Opposition and for lack of merit, the Motion for Reconsideration is hereby denied.

SO ORDERED.

45

On October 28, 1996, petitioners requested transfer of case records to the Departmentof Education, Culture and Sports (DECS) from the CHED.

46 Petitioners claimed that it is

the DECS, not CHED, which has jurisdiction over expulsion cases, thus, necessitatingthe transfer of the case records of Discipline Case No. 9495-3-25121 to the DECS.

On November 4, 1996, in view of the dismissal of the petition for certiorari in CA-G.R.SP No. 38719 and the automatic lifting of the writ of preliminary injunction, privaterespondent Aguilar filed an urgent motion to reiterate writ of preliminary injunction datedSeptember 25, 1995 before respondent RTC Judge of Manila.47

On January 7, 1997, respondent Judge issued its questioned order grantingprivate respondent Aguilar's urgent motion to reiterate preliminary injunction. Thepertinent portion of the order reads:

In light of the foregoing, petitioner Aguilar's urgent motion to reiterate writ of preliminary injunction is hereby granted, and respondents' motion to dismiss isdenied.






























The writ of preliminary injunction dated September 25, 1995 is declared to be inforce and effect.

Let a copy of this Order and the writ be served personally by the Court's sheriff upon the respondents at petitioners' expense.

SO ORDERED.48

Accordingly, private respondent Aguilar was allowed to conditionally enroll in petitioner DLSU, subject to the continued effectivity of the writ of preliminary injunction datedSeptember 25, 1995 and to the outcome of Civil Case No. 95-74122.

On February 17, 1997, petitioners filed the instant petition.

On June 15, 1998, We issued a TRO49 as prayed for by the urgent motion for theissuance of a TRO

50 dated June 4, 1998 of petitioners, and enjoined respondent Judge

from implementing the writ of preliminary injunction dated September 25, 1995 issued inCivil Case No. 95-74122, effective immediately and until further orders from this Court.

On March 27, 2006, private respondent Aguilar filed his manifestation51 stating that hehas long completed his course at petitioner DLSU. He finished and passed all hisenrolled subjects for the second trimester of 1997-1998, as indicated in his transcript of records

52 issued by DLSU. However, despite having completed all the academic

requirements for his course, DLSU has not issued a certificate of completion/graduationin his favor.

Issues

We are tasked to resolve the following issues:

1. Whether it is the DECS or the CHED which has legal authority to reviewdecisions of institutions of higher learning that impose disciplinary action on their students found violating disciplinary rules.

2. Whether or not petitioner DLSU is within its rights in expelling privaterespondents.

2.a Were private respondents accorded due process of law?

2.b Can petitioner DLSU invoke its right to academic freedom?

2.c Was the guilt of private respondents proven by substantial evidence?

3. Whether or not the penalty imposed by DLSU on private respondents isproportionate to their misdeed.




















Our Ruling

Prefatorily, there is merit in the observation of petitioner s53 that while CHED ResolutionNo. 181-96 disapproved the expulsion of other private respondents, it nonethelessauthorized their exclusion from petitioner DLSU. However, because of the dismissal of

the CA case, petitioner DLSU is now faced with the spectacle of having two differentdirectives from the CHED and the respondent Judge – CHED ordering the exclusion of private respondents Bungubung, Reverente, and Valdes, Jr., and the Judge orderingpetitioner DLSU to allow them to enroll and complete their degree courses until their graduation.

This is the reason We opt to decide the whole case on the merits, brushing asidetechnicalities, in order to settle the substantial issues involved. This Court has the power to take cognizance of the petition at bar due to compelling reasons, and the nature andimportance of the issues raised warrant the immediate exercise of Our jurisdiction.

54

This is in consonance with our case law now accorded near-religious reverence that

rules of procedure are but tools designed to facilitate the attainment of justice, such thatwhen its rigid application tends to frustrate rather than promote substantial justice, thisCourt has the duty to suspend their operation.

55

I. It is the CHED, not DECS, which has the power of supervision and review over disciplinary cases decided by institutions of higher learning.

Ang CHED, hindi ang DECS, ang may kapangyarihan ng pagsubaybay atpagrepaso sa mga desisyong pandisiplina ng mga institusyon ng mas mataas na

pag-aaral.

Petitioners posit that the jurisdiction and duty to review student expulsion cases, eventhose involving students in secondary and tertiary levels, is vested in the DECS not inthe CHED. In support of their stance, petitioners cite Sections 4,56 15(2) & (3),57 54,58 57(3)

59 and 70

60 of Batas Pambansa (B.P.) Blg. 232, otherwise known as the

"Education Act of 1982."

According to them, Republic Act (R.A.) No. 7722 did not transfer to the CHED theDECS' power of supervision/review over expulsion cases involving institutions of higher learning. They say that unlike B.P. Blg. 232, R.A. No. 7722 makes no reference to the

right and duty of learning institutions to develop moral character and instill disciplineamong its students. The clear concern of R.A. No. 7722 in the creation of the CHEDwas academic, i.e., the formulation, recommendation, setting, and development of academic plans, programs and standards for institutions of higher learning. Theenumeration of CHED's powers and functions under Section 8 does not includesupervisory/review powers in student disciplinary cases. The reference in Section 3 toCHED's "coverage" of institutions of higher education is limited to the powers andfunctions specified in Section 8. The Bureau of Higher Education, which the CHED has


































replaced and whose functions and responsibilities it has taken over, never had anyauthority over student disciplinary cases.

We cannot agree.

On May 18, 1994, Congress approved R.A. No. 7722, otherwise known as "An ActCreating the Commission on Higher Education, Appropriating Funds Thereof and for other purposes."

Section 3 of the said law, which paved the way for the creation of the CHED, provides:

Section 3. Creation of the Commission on Higher Education . – In pursuance of the abovementioned policies, the Commission on Higher Education is herebycreated, hereinafter referred to as Commission.

The Commission shall be independent and separate from the Department of

Education, Culture and Sports (DECS) and attached to the office of the Presidentfor administrative purposes only. Its coverage shall be both public and privateinstitutions of higher education as well as degree-granting programs in all postsecondary educational institutions, public and private.

The powers and functions of the CHED are enumerated in Section 8 of R.A. No. 7722.They include the following:

Sec. 8. Powers and functions of the Commission . – The Commission shall havethe following powers and functions:

x x x x

n) promulgate such rules and regulations and exercise such other powers andfunctions as may be necessary to carry out effectively the purpose and objectivesof this Act; and

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

Clearly, there is no merit in the contention of petitioners that R.A. No. 7722 did not

transfer to the CHED the DECS' power of supervision/review over expulsion casesinvolving institutions of higher learning.

First, the foregoing provisions are all-embracing . They make no reservations of powersto the DECS insofar as institutions of higher learning are concerned. They show that theauthority and supervision over all public and private institutions of higher education, aswell as degree-granting programs in all post-secondary educational institutions, publicand private, belong to the CHED, not the DECS.



Second, to rule that it is the DECS which has authority to decide disciplinary casesinvolving students on the tertiary level would render nugatory the coverage of theCHED, which is "both public and private institutions of higher education as well asdegree granting programs in all post secondary educational institutions, public andprivate." That would be absurd.

It is of public knowledge that petitioner DLSU is a private educational institution whichoffers tertiary degree programs. Hence, it is under the CHED authority.

Third, the policy of R.A. No. 772261 is not only the protection, fostering and promotionof the right of all citizens to affordable quality education at all levels and the taking of appropriate steps to ensure that education shall be accessible to all. The law is likewise concerned with ensuring and protecting academic freedom and with promoting itsexercise and observance for the continued intellectual growth of students, theadvancement of learning and research, the development of responsible and effectiveleadership, the education of high-level and middle-level professionals, and the

enrichment of our historical and cultural heritage.

It is thus safe to assume that when Congress passed R.A. No. 7722, its members wereaware that disciplinary cases involving students on the tertiary level would continue toarise in the future, which would call for the invocation and exercise of institutions of higher learning of their right to academic freedom.

Fourth, petitioner DLSU cited no authority in its bare claim that the Bureau of Higher Education, which CHED replaced, never had authority over student disciplinary cases.In fact, the responsibilities of other government entities having functions similar to thoseof the CHED were transferred to the CHED.62

Section 77 of the MRPS63 on the process of review in student discipline cases shouldtherefore be read in conjunction with the provisions of R.A. No. 7722.

Fifth, Section 18 of R.A. No. 7722 is very clear in stating that "[j]urisdiction over DECS-supervised or chartered state-supported post-secondary degree-granting vocational and tertiary institutions shall be transferred to the Commission [On Higher Education]." This provision does not limit or distinguish that what is beingtransferred to the CHED is merely the formulation, recommendation, setting anddevelopment of academic plans, programs and standards for institutions of higher learning, as what petitioners would have us believe as the only concerns of R.A. No.7722.

Ubi lex non distinguit nec nos distinguere debemus : Where the law does not

distinguish, neither should we.

To Our mind, this provision, if not an explicit grant of jurisdiction to the CHED,necessarily includes the transfer to the CHED of any jurisdiction which the DECSmight have possessed by virtue of B.P. Blg. 232 or any other law or rule for that matter.

IIa. Private respondents were accorded due process of law.













Ang mga private respondents ay nabigyan ng tamang proseso ng batas.

The Due Process Clause in Article III, Section 1 of the Constitution embodies a systemof rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our

entire history.

64

The constitutional behest that no person shall be deprived of life, libertyor property without due process of law is solemn and inflexible.65

In administrative cases, such as investigations of students found violating schooldiscipline, "[t]here are withal minimum standards which must be met before to satisfythe demands of procedural due process and these are: that (1) the students must beinformed in writing of the nature and cause of any accusation against them; (2) theyshall have the right to answer the charges against them and with the assistance if counsel, if desired; (3) they shall be informed of the evidence against them; (4) theyshall have the right to adduce evidence in their own behalf; and (5) the evidence mustbe duly considered by the investigating committee or official designated by the school

authorities to hear and decide the case."

66

Where a party was afforded an opportunity to participate in the proceedings but failed todo so, he cannot complain of deprivation of due process.67 Notice and hearing is thebulwark of administrative due process, the right to which is among the primary rightsthat must be respected even in administrative proceedings.68 The essence of dueprocess is simply an opportunity to be heard, or as applied to administrativeproceedings, an opportunity to explain one's side or an opportunity to seekreconsideration of the action or ruling complained of .

69 So long as the party is given the

opportunity to advocate her cause or defend her interest in due course, it cannot be saidthat there was denial of due process.70

A formal trial-type hearing is not, at all times and in all instances, essential to dueprocess – it is enough that the parties are given a fair and reasonable opportunity toexplain their respective sides of the controversy and to present supporting evidence onwhich a fair decision can be based.71 "To be heard" does not only mean presentation of testimonial evidence in court – one may also be heard through pleadings and where theopportunity to be heard through pleadings is accorded, there is no denial of dueprocess.

72

Private respondents were duly informed in writing of the charges against them by theDLSU-CSB Joint Discipline Board through petitioner Sales. They were given theopportunity to answer the charges against them as they, in fact, submitted their respective answers. They were also informed of the evidence presented against themas they attended all the hearings before the Board. Moreover, private respondents weregiven the right to adduce evidence on their behalf and they did. Lastly, the DisciplineBoard considered all the pieces of evidence submitted to it by all the parties beforerendering its resolution in Discipline Case No. 9495-3-25121.







































Private respondents cannot claim that they were denied due process when they werenot allowed to cross-examine the witnesses against them. This argument was alreadyrejected in Guzman v. National University 73

where this Court held that "x x x theimposition of disciplinary sanctions requires observance of procedural due process. Andit bears stressing that due process in disciplinary cases involving students does not

entail proceedings and hearings similar to those prescribed for actions and proceedingsin courts of justice. The proceedings in student discipline cases may be summary; andcross examination is not, x x x an essential part thereof."

IIb. Petitioner DLSU, as an institution of higher learning, possesses academic freedom which includes determination of who to admit for study.

Ang petitioner DLSU, bilang institusyon ng mas mataas na pag-aaral, aynagtataglay ng kalayaang akademiko na sakop ang karapatang pumili ng mgamag-aaral dito.

Section 5(2), Article XIV of the Constitution guaranties all institutions of higher learningacademic freedom. This institutional academic freedom includes the right of the schoolor college to decide for itself, its aims and objectives, and how best to attain them freefrom outside coercion or interference save possibly when the overriding public interestcalls for some restraint.

74 According to present jurisprudence, academic freedom

encompasses the independence of an academic institution to determine for itself (1)who may teach, (2) what may be taught, (3) how it shall teach, and (4) who may beadmitted to study.

75

It cannot be gainsaid that "the school has an interest in teaching the student discipline,a necessary, if not indispensable, value in any field of learning. By instilling discipline,

the school teaches discipline. Accordingly, the right to discipline the student likewisefinds basis in the freedom "what to teach."76 Indeed, while it is categorically stated under the Education Act of 1982 that students have a right "to freely choose their field of study, subject to existing curricula and to continue their course therein up tograduation,"77 such right is subject to the established academic and disciplinarystandards laid down by the academic institution. Petitioner DLSU, therefore, can verywell exercise its academic freedom, which includes its free choice of students for admission to its school.

IIc. The guilt of private respondents Bungubung, Reverente and Valdes, Jr. was proven by substantial evidence.

Ang pagkakasala ng private respondents na sina Bungubung, Reverente atValdes, Jr. ay napatunayan ng ebidensiyang substansyal.

As has been stated earlier, private respondents interposed the common defense of alibi.However, in order that alibi may succeed as a defense, "the accused must establish byclear and convincing evidence (a) his presence at another place at the time of the






















perpetration of the offense and (b) the physical impossibility of his presence at thescene of the crime."

78

On the other hand, the defense of alibi may not be successfully invoked where theidentity of the assailant has been established by witnesses.

79 Positive identification of

accused where categorical and consistent, without any showing of ill motive on the partof the eyewitness testifying, should prevail over the alibi and denial of appellants whosetestimonies are not substantiated by clear and convincing evidence.

80 Well-settled is the

rule that denial and alibi, being weak defenses, cannot overcome the positivetestimonies of the offended parties.81

Courts reject alibi when there are credible eyewitnesses to the crime who can positivelyidentify the accused.82 Alibi is an inherently weak defense and courts must receive itwith caution because one can easily fabricate an alibi.83 Jurisprudence holds that denial,like alibi, is inherently weak and crumbles in light of positive declarations of truthfulwitnesses who testified on affirmative matters that accused were at the scene of the

crime and were the victim's assailants. As between categorical testimonies that ring of truth on one hand and a bare denial on the other, the former must prevail.84

Alibi is theweakest of all defenses for it is easy to fabricate and difficult to disprove, and it is for this reason that it cannot prevail over the positive identification of accused by thewitnesses.85

The required proof in administrative cases, such as in student discipline cases, isneither proof beyond reasonable doubt nor preponderance of evidence but onlysubstantial evidence. According to Ang Tibay v. Court of Industrial Relations ,86

it means"such reasonable evidence as a reasonable mind might accept as adequate to supporta conclusion."

Viewed from the foregoing, We reject the alibi of private respondents Bungubung,Valdes Jr., and Reverente.1awphi1 They were unable to show convincingly that theywere not at the scene of the crime on March 29, 1995 and that it was impossible for them to have been there. Moreover, their alibi cannot prevail over their positiveidentification by the victims.

We hark back to this Court's pronouncement affirming the expulsion of several studentsfound guilty of hazing:

No one can be so myopic as to doubt that the immediate reinstatement of

respondent students who have been investigated and found guilty by theDisciplinary Board to have violated petitioner university's disciplinary rules andstandards will certainly undermine the authority of the administration of theschool. This we would be most loathe to do.

More importantly, it will seriously impair petitioner university's academic freedomwhich has been enshrined in the 1935, 1973 and the present 1987 Constitution.87











































Certainly, private respondents Bungubung, Reverente and Valdes, Jr. do not deserve toclaim a venerable institution as their own, for they may foreseeably cast a malevolentinfluence on the students currently enrolled, as well as those who come after them.

88 It

must be borne in mind that universities are established, not merely to develop theintellect and skills of the studentry, but to inculcate lofty values, ideals and attitudes;

nay, the development, or flowering if you will, of the total man.

89

As for private respondent Aguilar, however, We are inclined to give credence to his alibithat he was at Camp Crame in Quezon City at the time of the incident in question onMarch 29, 1995. This claim was amply corroborated by the certification that hesubmitted before the DLSU-CSB Joint Discipline Board, to wit:

C E R T I F I C A T I O N

TO WHOM THIS MAY CONCERN:

We, the undersigned, hereby declare and affirm by way of thisCertification that sometime on March 29, 1995, at about and between 4:30P.M. and 5:30 P.M., we were together with Alvin A. Aguilar, at KianganHall, inside Camp Crame, Quezon City, meeting in connection with anaffair of our class known as Class 7, Batch 89 of the PhilippineConstabulary discussing on the proposed sponsorship of TAU GAMMAPHI from said Batch '89 affair.

That the meeting was terminated at about 6:30 P.M. that evening and Alvin Aguilar had asked our permission to leave and we saw him leave Camp Crame,in his car with the driver.

April 18, 1995, Camp Crame, Quezon City.90

The said certification was duly signed by PO3 Nicanor R. Faustino (Anti-OrganizedCrime CIC, NCR), PO3 Alejandro D. Deluviar (ODITRM, Camp Crame, Quezon City),PO2 Severino C. Filler (TNTSC, Camp Crame, Quezon City), and PO3 Ireneo M.Desesto (Supply Center, PNPLSS). The rule is that alibi assumes significance or strength when it is amply corroborated by credible and disinterested witnesses.91 It istrue that alibi is a weak defense which an accused can easily fabricate to escapecriminal liability. But where the prosecution evidence is weak, and betrays lack of credibility as to the identification of defendant, alibi assumes commensurate strength.

This is but consistent with the presumption of innocence in favor of accused.

92

Alibi is not always undeserving of credit, for there are times when accused has no other possible defense for what could really be the truth as to his whereabouts at the crucialtime, and such defense may, in fact, tilt the scales of justice in his favor .93

III. The penalty of expulsion imposed by DLSU on private respondents is disproportionate to their misdeed.



























Ang parusang expulsion na ipinataw ng DLSU sa private respondents ay hindiangkop sa kanilang pagkakasala.

It is true that schools have the power to instill discipline in their students as subsumed intheir academic freedom and that "the establishment of rules governing university-

student relations, particularly those pertaining to student discipline, may be regarded asvital, not merely to the smooth and efficient operation of the institution, but to its verysurvival."

94 This power, however, does not give them the untrammeled discretion to

impose a penalty which is not commensurate with the gravity of the misdeed. If theconcept of proportionality between the offense committed and the sanction imposed isnot followed, an element of arbitrariness intrudes. That would give rise to a due processquestion.

95

We agree with respondent CHED that under the circumstances, the penalty of expulsionis grossly disproportionate to the gravity of the acts committed by private respondentsBungubung, Reverente, and Valdes, Jr. Each of the two mauling incidents lasted only

for few seconds and the victims did not suffer any serious injury. Disciplinary measuresespecially where they involve suspension, dismissal or expulsion, cut significantly intothe future of a student. They attach to him for life and become a mortgage of his future,hardly redeemable in certain cases. Officials of colleges and universities must beanxious to protect it, conscious of the fact that, appropriately construed, a disciplinaryaction should be treated as an educational tool rather than a punitive measure.

96

Accordingly, We affirm the penalty of exclusion97

only, not expulsion,98

imposed onthem by the CHED. As such, pursuant to Section 77(b) of the MRPS, petitioner DLSUmay exclude or drop the names of the said private respondents from its rolls for beingundesirable, and transfer credentials immediately issued.

WHEREFORE, the petition is PARTIALLY GRANTED. The Court of AppealsResolutions dated July 30, 1996 and dated October 15, 1996, and Regional Trial Courtof Manila, Branch 36, Order dated January 7, 1997 are ANNULLED AND SET ASIDE,while CHED Resolution 181-96 dated May 14, 1996 is AFFIRMED.

Petitioner DLSU is ordered to issue a certificate of completion/graduation in favor of private respondent Aguilar. On the other hand, it may exclude or drop the names of private respondents Bungubung, Reverente, and Valdes, Jr. from its rolls, and their transfer credentials immediately issued.

SO ORDERED.






















CSC VS. SOJOR - 554 SCRA 160 (2008)

D E C I S I O N

REYES, R.T., J .:

IS the president of a state university outside the reach of the disciplinary jurisdiction constitutionally granted to the Civil Service Commission (CSC) over all civil

servants and officials?

Does the assumption by the CSC of jurisdiction over a president of a state

university violate academic freedom?



The twin questions, among others, are posed in this petition for review on

certiorari of the Decision1[1] of the Court of Appeals (CA) which annulled two (2) CSC

Resolutions2[2] against respondent Henry A. Sojor.

The Facts

The uncontroverted facts that led to the controversy, as found by the CSC and

the CA, are as follows:

On August 1, 1991, respondent Sojor was appointed by then President Corazon

Aquino as president of the Central Visayas Polytechnic College (CVPC) in Dumaguete

City. In June 1997, Republic Act (R.A.) No. 8292, or the ―Higher Education

Modernization Act of 1997,‖ was enacted. This law mandated that a Board of Trustees

(BOT) be formed to act as the governing body in state colleges. The BOT of CVPC

appointed respondent as president, with a four-year term beginning September 1998 upto September 2002.3[3] Upon the expiration of his first term of office in 2002, he was



appointed president of the institution for a second four-year term, expiring on

September 24, 2006.4[4]

On June 25, 2004, CVPC was converted into the Negros Oriental State

University (NORSU).5[5] A Board of Regents (BOR) succeeded the BOT as its

governing body.

Meanwhile, three (3) separate administrative cases against respondent were filed

by CVPC faculty members before the CSC Regional Office (CSC-RO) No. VII in Cebu

City, to wit:

1. ADMC DC No. 02-20(A) – Complaint for dishonesty, grave

misconduct and conduct prejudicial to the best interest of the service

filed on June 26, 2002 by Jose Rene A. Cepe and Narciso P. Ragay.

It was alleged that respondent approved the release of salary

differentials despite the absence of the required Plantilla and Salary

Adjustment Form and valid appointments.6[6]



2. ADM DC No. 02-20 – Complaint for dishonesty, misconduct and

falsification of official documents filed on July 10, 2002 by Jocelyn

Juanon and Carolina Fe Santos. The complaint averred that

respondent maliciously allowed the antedating and falsification of the

reclassification differential payroll, to the prejudice of instructors and

professors who have pending request for adjustment of their academic

ranks.7[7]

3. ADM DC No. 02-21 – Complaint for nepotism filed on August 15,

2002 by Rose Marie Palomar, a former part-time instructor of CVPC. It

was alleged that respondent appointed his half-sister, Estrellas Sojor-

Managuilas, as casual clerk, in violation of the provisions against

nepotism under the Administrative Code.8[8]

Before filing his counter-affidavits, respondent moved to dismiss the first two

complaints on grounds of lack of jurisdiction, bar by prior judgment and forum shopping.

He claimed that the CSC had no jurisdiction over him as a presidential appointee.

Being part of the non-competitive or unclassified service of the government, he was



exclusively under the disciplinary jurisdiction of the Office of the President (OP). He

argued that CSC had no authority to entertain, investigate and resolve charges against

him; that the Civil Service Law contained no provisions on the investigation, discipline,

and removal of presidential appointees. He also pointed out that the subject matter of

the complaints had already been resolved by the Office of the Ombudsman.9[9]

Finding no sufficient basis to sustain respondent’s arguments, the CSC-RO

denied his motion to dismiss in its Resolution dated September 4, 2002.10[10] His

motion for reconsideration11[11] was likewise denied. Thus, respondent was formally

charged with three administrative cases, namely: (1) Dishonesty, Misconduct, and

Falsification of Official Document; (2) Dishonesty, Grave Misconduct, and Conduct

Prejudicial to the Best Interest of the Service; and (3) Nepotism.12[12]

Respondent appealed the actions of the regional office to the Commission proper

(CSC), raising the same arguments in his motion to dismiss.13[13] He argued that



since the BOT is headed by the Committee on Higher Education Chairperson who was

under the OP, the BOT was also under the OP. Since the president of CVPC was

appointed by the BOT, then he was a presidential appointee. On the matter of the

jurisdiction granted to

CSC by virtue of Presidential Decree (P.D.) No. 80714[14] enacted in October 1975,

respondent contended that this was superseded by the provisions of R.A. No.

8292,15[15] a later law which granted to the BOT the power to remove university

officials.

CSC Disposition

In a Resolution dated March 30, 2004,16[16] the CSC dismissed respondent’s

appeal and authorized its regional office to proceed with the investigation. He was also

preventively suspended for 90 days. The fallo of the said resolution states:

WHEREFORE, the appeal of Henry A. Sojor, President of CentralVisayas Polytechnic College, is hereby DISMISSED. The Civil ServiceCommission Regional Office No. VII, Cebu City, is authorized to proceedwith the formal investigation of the cases against Sojor and submit theinvestigation reports to the Commission within one hundred five (105)



days from receipt hereof. Finally, Sojor is preventively suspended for ninety (90) days.17[17]

In decreeing that it had jurisdiction over the disciplinary case against respondent,

the CSC opined that his claim that he was a presidential appointee had no basis in fact

or in law. CSC maintained that it had concurrent jurisdiction with the BOT of the CVPC.

We quote:

His appointment dated September 23, 2002 was signed by then

Commission on Higher Education (CHED) Chairman Ester A. Garcia.Moreover, the said appointment expressly stated that it was approved andadopted by the Central Visayas Polytechnic College Board of Trustees on

August 13, 2002 in accordance with Section 6 of Republic Act No. 8292(Higher education Modernization Act of 1997), which explicitly providesthat, ―He (the president of a state college) shall be appointed by the Board of Regents/Trustees, upon recommendation of a duly constituted search committee .‖ Since the President of a state college is appointed by theBoard of Regents/Trustees of the college concerned, it is crystalclear that he is not a presidential appointee. Therefore, it is withoutdoubt that Sojor, being the President of a state college (Central

Visayas Polytechnic College), is within the disciplinary jurisdiction ofthe Commission.

The allegation of appellant Sojor that the Commission is bereft of disciplinary jurisdiction over him since the same is exclusively lodged inthe CVPC Board of Trustees, being the appointing authority, cannot beconsidered. The Commission and the CVPC Board of Trustees haveconcurrent jurisdiction over cases against officials and employees ofthe said agency. Since the three (3) complaints against Sojor were filedwith the Commission and not with the CVPC, then the former alreadyacquired disciplinary jurisdiction over the appellant to the exclusion of thelatter agency.18[18] (Emphasis supplied)



The CSC categorized respondent as a third level official, as defined under its

rules, who are under the jurisdiction of the Commission proper. Nevertheless, it

adopted the formal charges issued by its regional office and ordered it to proceed with

the investigation:

Pursuant to the Uniform Rules on Administrative Cases in the CivilService, Sojor, being a third level official, is within the disciplinary

jurisdiction of the Commission Proper. Thus, strictly speaking, theCommission has the sole jurisdiction to issue the formal charge against

Sojor. x x x However, since the CSC RO No. VII already issued theformal charges against him and found merit in the said formal charges, thesame is adopted. The CSC RO No. VII is authorized to proceed withthe formal investigation of the case against Sojor in accordance withthe procedure outlined in the aforestated Uniform Rules.19[19](Emphasis supplied)

No merit was found by the CSC in respondent’s motion for reconsideration and,

accordingly, denied it with finality on July 6, 2004.20[20]

Respondent appealed the CSC resolutions to the CA via a petition for certiorari

and prohibition. He alleged that the CSC acted without or in excess of its jurisdiction, or

with grave abuse of discretion amounting to lack or excess of jurisdiction when it issued

the assailed resolutions; that CSC encroached upon the academic freedom of CVPC;



and that the power to remove, suspend, and discipline the president of CVPC was

exclusively lodged in the BOT of CVPC.

CA Disposition

On September 29, 2004, the CA issued a writ of preliminary injunction directing

the CSC to cease and desist from enforcing its Resolution dated March 30, 2004 and

Resolution dated July 6, 2004.21[21] Thus, the formal investigation of the

administrative charges against Sojor before the CSC-RO was suspended.

On June 27, 2005, after giving both parties an opportunity to air their sides, the

CA resolved in favor of respondent. It annulled the questioned CSC resolutions and

permanently enjoined the CSC from proceeding with the administrative investigation.

The dispositive part of the CA decision reads:

WHEREFORE, in view of all the foregoing, and finding that therespondent Civil Service Commission acted without jurisdiction in issuingthe assailed Resolution Nos. 040321 and 040766 dated March 20, 2004and July 6, 2004, respectively, the same are hereby ANNULLED and SET

ASIDE. The preliminary injunction issued by this Court on September 29,

2004 is hereby made permanent.

SO ORDERED.22[22]



The CA ruled that the power to appoint carries with it the power to remove or to

discipline. It declared that the enactment of R.A. No. 929923[23] in 2004, which

converted CVPC into NORSU, did not divest the BOT of the power to discipline and

remove its faculty members, administrative officials, and employees. Respondent was

appointed as president of CVPC by the BOT by virtue of the authority granted to it under

Section 6 of R.A. No. 8292.24[24] The power of the BOT to remove and discipline

erring employees, faculty members, and administrative officials as expressly provided

for under Section 4 of R.A. No. 8292 is also granted to the BOR of NORSU under

Section 7 of R.A. No. 9299. The said provision reads:

Power and Duties of Governing Boards . – The governing boardshall have the following specific powers and duties in addition to itsgeneral powers of administration and exercise of all the powers granted tothe board of directors of a corporation under Section 36 of BatasPambansa Blg. 68, otherwise known as the Corporation Code of thePhilippines:

x x x x

to fix and adjust salaries of faculty members and administrative officialsand employees x x x; and to remove them for cause in accordancewith the requirements of due process of law. (Emphasis added)



The CA added that Executive Order (E.O.) No. 292,25[25] which grants

disciplinary jurisdiction to the CSC over all branches, subdivisions, instrumentalities,

and agencies of the government, including government-owned or controlled

corporations with original charters, is a general law. According to the appellate court,

E.O. No. 292 does not prevail over R.A. No. 9299,26[26] a special law.

Issues

Petitioner CSC comes to Us, seeking to reverse the decision of the CA on theground that THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT

PETITIONER ACTED WITHOUT JURISDICTION IN ISSUING RESOLUTION NO.

040321 DATED MARCH 30, 2004 AND RESOLUTION NO. 04766 DATED JULY 6,

2004.27[27]

Our Ruling

The petition is meritorious.



I. Jurisdiction of the CSC

The Constitution grants to the CSC administration over the entire civil

service.28[28] As defined, the civil service embraces every branch, agency,subdivision, and instrumentality of the government, including every government-owned

or controlled corporation.29[29] It is further classified into career and non-career

service positions. Career service positions are those where: (1) entrance is based on

merit and fitness or highly technical qualifications; (2) there is opportunity for

advancement to higher career positions; and (3) there is security of tenure. These

include:

(1) Open Career positions for appointment to which prior qualification inan appropriate examination is required;

(2) Closed Career positions which are scientific, or highly technical innature; these include the faculty and academic staff of state collegesand universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own meritsystems;



(3) Positions in the Career Executive Service; namely, Undersecretary,

Assistant Secretary, Bureau Director, Assistant Bureau Director,Regional Director, Assistant Regional Director, Chief of DepartmentService and other officers of equivalent rank as may be identified by

the Career Executive Service Board, all of whom are appointed by thePresident;

(4) Career officers, other than those in the Career Executive Service,who are appointed by the President, such as the Foreign ServiceOfficers in the Department of Foreign Affairs;

(5) Commissioned officers and enlisted men of the Armed Forces whichshall maintain a separate merit system;

(6) Personnel of government-owned or controlled corporations, whether performing governmental or proprietary functions, who do not fallunder the non-career service; and

(7) Permanent laborers, whether skilled, semi-skilled, or unskilled.30[30]

Career positions are further grouped into three levels. Entrance to the first two

levels is determined through competitive examinations, while entrance to the third level



is prescribed by the Career Executive Service Board.31[31] The positions covered by

each level are:

(a) The first level shall include clerical, trades, crafts, and custodialservice positions which involve non-professional or subprofessionalwork in a non-supervisory or supervisory capacity requiring less thanfour years of collegiate studies;

(b) The second level shall include professional, technical, and scientificpositions which involve professional, technical, or scientific work in anon-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and

(c) The third level shall cover positions in the Career ExecutiveService.32[32]

On the other hand, non-career service positions are characterized by: (1)

entrance not by the usual tests of merit and fitness; and (2) tenure which is limited to a

period specified by law, coterminous with the appointing authority or subject to his

pleasure, or limited to the duration of a particular project for which purpose employment

was made.33[33] The law states:

The Non-Career Service shall include:



(1) Elective officials and their personal or confidential staff;

(2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or confidential staff(s);

(3) Chairman and members of commissions and boards with fixedterms of office and their personal or confidential staff;

(4) Contractual personnel or those whose employment in thegovernment is in accordance with a special contract to undertake aspecific work or job, requiring special or technical skills not available inthe employing agency, to be accomplished within a specific period,which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibilitywith a minimum of direction and supervision from the hiring agency;

and

(5) Emergency and seasonal personnel.34[34]

It is evident that CSC has been granted by the Constitution and the

Administrative Code jurisdiction over all civil service positions in the government

service, whether career or non-career. From this grant of general jurisdiction, the CSC

promulgated the Revised Uniform Rules on Administrative Cases in the Civil

Service.35[35] We find that the specific jurisdiction, as spelled out in the CSC rules, did

not depart from the general jurisdiction granted to it by law. The jurisdiction of the

Regional Office of the CSC and the Commission central office (Commission Proper) is

specified in the CSC rules as:



Section 4. Jurisdiction of the Civil Service Commission . – The CivilService Commission shall hear and decide administrative cases institutedby, or brought before it, directly or on appeal, including contested

appointments, and shall review decisions and actions of its offices and of the agencies attached to it.

Except as otherwise provided by the Constitution or by law,the Civil Service Commission shall have the final authority to passupon the removal, separation and suspension of all officers andemployees in the civil service and upon all matters relating to theconduct, discipline and efficiency of such officers and employees.

Section 5. Jurisdiction of the Civil Service Commission Proper . – The Civil Service Commission Proper shall have jurisdiction over the

following cases:

A. Disciplinary1. Decisions of Civil Service Regional Offices brought

before it on petition for review;2. Decisions of heads of departments, agencies,

provinces, cities, municipalities and other instrumentalities, imposing penalties exceeding thirtydays suspension or fine in an amount exceedingthirty days salary brought before it on appeal;

3. Complaints brought against Civil Service

Commission Proper personnel;4. Complaints against third level officials who are not

presidential appointees;5. Complaints against Civil Service officials and

employees which are not acted upon by theagencies and such other complaints requiringdirect or immediate action, in the interest ofjustice;

6. Requests for transfer of venue of hearing on casesbeing heard by Civil Service Regional Offices;

7. Appeals from the Order of Preventive Suspension;

and8. Such other actions or requests involving issues

arising out of or in connection with the foregoingenumerations.

B. Non-Disciplinary1. Decisions of Civil Service Commission Regional

Offices brought before it;



2. Requests for favorable recommendation on petitionfor executive clemency;

3. Protests against the appointment, or other personnelactions, involving third level officials; and

4. Such other analogous actions or petitions arising out

of or in relation with the foregoing enumerations.

Section 6. Jurisdiction of Civil Service Regional Offices . – The CivilService Commission Regional Offices shall have jurisdiction over thefollowing cases:

A. Disciplinary1. Complaints initiated by, or brought before, the

Civil Service Commission Regional Officesprovided that the alleged acts or omissions werecommitted within the jurisdiction of the Regional

Office, including Civil Service examinationanomalies or irregularities and the personscomplained of are employees of agencies, localor national, within said geographical areas;

2. Complaints involving Civil Service CommissionRegional Office personnel who are appointees of said office; and

3. Petitions to place respondent under PreventiveSuspension.

B. Non-Disciplinary1. Disapproval of appointments brought before it on

appeal;2. Protests against the appointments of first and

second level employees brought before it directly or on appeal. (Emphasis supplied)

Respondent, a state university president with a fixed term of office appointed by

the governing board of trustees of the university, is a non-career civil service officer. He

was appointed by the chairman and members of the governing board of CVPC. By

clear provision of law, respondent is a non-career civil servant who is under the

jurisdiction of the CSC.



II. The power of the BOR to discipline officials and employees is not exclusive.CSC has concurrent jurisdiction over a president of a state university.

Section 4 of R.A. No. 8292, or the Higher Education Modernization Act of 1997,

under which law respondent was appointed during the time material to the present case,

provides that the school’s governing board shall have the general powers of

administration granted to a corporation. In addition, Section 4 of the law grants to the

board the power to remove school faculty members, administrative officials, and

employees for cause:

Section 4. Powers and Duties of Governing Boards . – Thegoverning board shall have the following specific powers and dutiesin addition to its general powers of administration and the exerciseof all the powers granted to the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68, otherwise known as theCorporation Code of the Philippines:

x x x x

h) to fix and adjust salaries of faculty members andadministrative officials and employees subject to theprovisions of the revised compensation and classificationsystem and other pertinent budget and compensationlaws governing hours of service, and such other dutiesand conditions as it may deem proper; to grant them, atits discretion, leaves of absence under such regulationsas it may promulgate, any provisions of existing law tothe contrary not withstanding; and to remove them forcause in accordance with the requirements of dueprocess of law. (Emphasis supplied)

The above section was subsequently reproduced as Section 7(i) of the

succeeding law that converted CVPC into NORSU, R.A. No. 9299. Notably, and in



contrast with the earlier law, R.A. No. 9299 now provides that the administration of the

university and exercise of corporate powers of the board of the school shall be

exclusive:

Sec. 4. Administration . – The University shall have the generalpowers of a corporation set forth in Batas Pambansa Blg. 68, asamended, otherwise known as ―The Corporation Code of the Philippines.‖The administration of the University and the exercise of its corporatepowers shall be vested exclusively in the Board of Regents and thepresident of the University insofar as authorized by the Board .

Measured by the foregoing yardstick, there is no question that administrative

power over the school exclusively belongs to its BOR. But does this exclusive

administrative power extend to the power to remove its erring employees and officials?

In light of the other provisions of R.A. No. 9299, respondent’s argument that the

BOR has exclusive power to remove its university officials must fail. Section 7 of R.A.

No. 9299 states that the power to remove faculty members, employees, and officials of

the university is granted to the BOR ―in addition to its general powers of administration.‖

This provision is essentially a reproduction of Section 4 of its predecessor, R.A. No.

8292, demonstrating that the intent of the lawmakers did not change even with the

enactment of the new law. For clarity, the text of the said section is reproduced below:

Sec. 7. Powers and Duties of the Board of Regents . – The Boardshall have the following specific powers and duties in addition to itsgeneral powers of administration and the exercise of all the powersgranted to the Board of Directors of a corporation under existing laws:



x x x x

i. To fix and adjust salaries of faculty members andadministrative officials and employees, subject to the

provisions of the Revised Compensation and PositionClassification System and other pertinent budget andcompensation laws governing hours of service and suchother duties and conditions as it may deem proper; togrant them, at its discretion, leaves of absence under such regulations as it may promulgate, any provision of existing law to the contrary notwithstanding; and toremove them for cause in accordance with therequirements of due process of law.36[36] (Emphasissupplied)

Verily, the BOR of NORSU has the sole power of administration over the

university. But this power is not exclusive in the matter of disciplining and removing its

employees and officials.

Although the BOR of NORSU is given the specific power under R.A. No. 9299 to

discipline its employees and officials, there is no showing that such power is exclusive.

When the law bestows upon a government body the jurisdiction to hear and decide

cases involving specific matters, it is to be presumed that such jurisdiction is exclusive

unless it be proved that another body is likewise vested with the same jurisdiction, in

which case, both bodies have concurrent jurisdiction over the matter.37[37]



All members of the civil service are under the jurisdiction of the CSC, unless

otherwise provided by law. Being a non-career civil servant does not remove

respondent from the ambit of the CSC. Career or non-career, a civil service official or

employee is within the jurisdiction of the CSC.

This is not a case of first impression.

In University of the Philippines v. Regino ,38[38] this Court struck down the claim

of exclusive jurisdiction of the UP BOR to discipline its employees. The Court held then:

The Civil Service Law (PD 807) expressly vests in the Commissionappellate jurisdiction in administrative disciplinary cases involvingmembers of the Civil Service. Section 9(j) mandates that the Commissionshall have the power to ―hear and decide administrative disciplinary casesinstituted directly with it in accordance with Section 37 or brought to it onappeal.‖ And Section 37(a) provides that, ―The Commission shall decide

upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty (30) days, or fine in anamount exceeding thirty days’ salary, demotion in rank or salary or transfer, removal or dismissal from office .‖ (Emphasis supplied)

Under the 1972 Constitution, all government-owned or controlledcorporations, regardless of the manner of their creation, were consideredpart of the Civil Service. Under the 1987 Constitution, only government-owned or controlled corporations with original charters fall within the scopeof the Civil Service pursuant to Article IX-B, Section 2(1), which states:

―The Civil Service embraces all branches,subdivisions, instrumentalities, and agencies of thegovernment, including government-owned or controlledcorporations with original charters.‖



As a mere government-owned or controlled corporation, UP was

clearly a part of the Civil Service under the 1973 Constitution and nowcontinues to be so because it was created by a special law and has anoriginal charter. As a component of the Civil Service, UP is therefore

governed by PD 807 and administrative cases involving thediscipline of its employees come under the appellate jurisdiction ofthe Civil Service Commission.39[39] (Emphasis supplied)

In the more recent case of Camacho v. Gloria ,40[40] this Court lent credence to

the concurrent jurisdiction of the CSC when it affirmed that a case against a university

official may be f iled either with the university’s BOR or directly with the CSC. We quote:

Further, petitioner contends that the creation of the committee bythe respondent Secretary, as Chairman of the USP Board of Regents, wascontrary to the Civil Service Rules. However, he cites no specific provisionof the Civil Service Law which was violated by the respondents in formingthe investigating committee. The Civil Service Rules embodied inExecutive Order 292 recognize the power of the Secretary and theuniversity, through its governing board, to investigate and decide mattersinvolving disciplinary action against officers and employees under their

jurisdiction. Of course under EO 292, a complaint against a stateuniversity official may be filed either with the university’s Board of Regents or directly with the Civil Service Commission, although theCSC may delegate the investigation of a complaint and for thatpurpose, may deputize any department, agency, official or group ofofficials to conduct such investigation.41[41] (Emphasis supplied)



Thus, CSC validly took cognizance of the administrative complaints directly filed

before the regional office, concerning violations of civil service rules against respondent.

III. Academic freedom may not be invoked when there are alleged violations of civil service laws and rules.

Certainly, academic institutions and personnel are granted wide latitude of action

under the principle of academic freedom. Academic freedom encompasses the freedom

to determine who may teach, who may be taught, how it shall be taught, and who may

be admitted to study.42[42] Following that doctrine, this Court has recognized that

institutions of higher learning has the freedom to decide for itself the best methods to

achieve their aims and objectives, free from outside coercion, except when the welfare

of the general public so requires.43[43] They have the independence to determine who

to accept to study in their school and they cannot be compelled by mandamus to enroll

a student.44[44]



That principle, however, finds no application to the facts of the present case.

Contrary to the matters traditionally held to be justified to be within the bounds of

academic freedom, the administrative complaints filed against Sojor involve violations of

civil service rules. He is facing charges of nepotism, dishonesty, falsification of official

documents, grave misconduct, and conduct prejudicial to the best interest of the

service. These are classified as grave offenses under civil service rules, punishable

with suspension or even dismissal.45[45]

This Court has held that the guaranteed academic freedom does not give an

institution the unbridled authority to perform acts without any statutory basis.46[46] For

that reason, a school official, who is a member of the civil service, may not be permitted

to commit violations of civil service rules under the justification that he was free to do so

under the principle of academic freedom.

Lastly, We do not agree with respondent’s contention that his appointment to the

position of president of NORSU, despite the pending administrative cases against him,

served as a condonation by the BOR of the alleged acts imputed to him. The doctrine

this Court laid down in Salalima v. Guingona, Jr.47[47] and Aguinaldo v. Santos 48[48]



are inapplicable to the present circumstances. Respondents in the mentioned cases

are elective officials, unlike respondent here who is an appointed official. Indeed,

election expresses the sovereign will of the people.49[49] Under the principle of vox

populi est suprema lex, the re-election of a public official may, indeed, supersede a

pending administrative case. The same cannot be said of a re-appointment to a non-

career position. There is no sovereign will of the people to speak of when the BOR re-

appointed respondent Sojor to the post of university president.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals

is REVERSED and SET ASIDE. The assailed Resolutions of the Civil Service

Commission are REINSTATED.



MERCADO VS. AMA – 618 SCRA 218 (2010)

The petitioners – Yolanda M. Mercado (Mercado ), Charito S. De Leon (De Leon ),

Diana R. Lachica (Lachica ), Margarito M. Alba, Jr. (Alba, Jr.,), and Felix A. Tonog

(Tonog), all former faculty members of AMA Computer College-Parañaque City, Inc.

(AMACC ) – assail in this petition for review on certiorari 50[1] the Court of Appeals’ (CA)

decision of November 29,



200751[2] and its resolution of June 20, 200852[3] that set aside the National Labor

Relations Commission’s (NLRC ) resolution dated July 18, 2005.53[4]

THE FACTUAL ANTECEDENTS

The background facts are not disputed and are summarized below.

AMACC is an educational institution engaged in computer-based education in the

country. One of AMACC’s biggest schools in the country is its branch at Parañaque

City. The petitioners were faculty members who started teaching at AMACC on May 25,

1998. The petitioner Mercado was engaged as a Professor 3, while petitioner Tonog

was engaged as an Assistant Professor 2. On the other hand, petitioners De Leon,

Lachica and Alba, Jr., were all engaged as Instructor 1.54[5] The petitioners executed

individual Teacher’s Contracts for each of the trimesters that they were engaged to

teach, with the following common stipulation:55[6]

1. POSITION. The TEACHER has agreed to accept a non-tenuredappointment to work in the College of xxx effective xxx to xxx or forthe duration of the last term that the TEACHER is given a teaching



load based on the assignment duly approved by the DEAN/SAVP-COO. [Emphasis supplied]

For the school year 2000-2001, AMACC implemented new faculty screeningguidelines, set forth in its Guidelines on the Implementation of AMACC Faculty

Plantilla.56[7] Under the new screening guidelines, teachers were to be hired or

maintained based on extensive teaching experience, capability, potential, high

academic qualifications and research background. The performance standards under

the new screening guidelines were also used to determine the present faculty members’

entitlement to salary increases. The petitioners failed to obtain a passing rating

based on the performance standards; hence AMACC did not give them any salary

increase.57[8]

Because of AMACC’s action on the salary increases, the petitioners filed a

complaint with the Arbitration Branch of the NLRC on July 25, 2000, for underpayment

of wages, non-payment of overtime and overload compensation, 13 th month pay, and

for discriminatory practices.58[9]

On September 7, 2000, the petitioners individually received a memorandum from

AMACC, through Human Resources Supervisor Mary Grace Beronia, informing them

that with the expiration of their contract to teach, their contract would no longer be

renewed.59[10] The memorandum60[11] entitled ―Notice of Non-Renewal of Contract ‖

states in full:



In view of the expiration of your contract to teach with AMACC-Paranaque, We wish to inform you that your contract shall no longer berenewed effective Thirty (30) days upon receipt of this notice. We

therefore would like to thank you for your service and wish you good luckas you pursue your career.

You are hereby instructed to report to the HRD for further instruction. Please bear in mind that as per company policy, you arerequired to accomplish your clearance and turn-over all documents andaccountabilities to your immediate superior.

For your information and guidance

The petitioners amended their labor arbitration complaint to include the charge of

illegal dismissal against AMACC. In their Position Paper, the petitioners claimed that

their dismissal was illegal because it was made in retaliation for their complaint for

monetary benefits and discriminatory practices against AMACC. The petitioners also

contended that AMACC failed to give them adequate notice; hence, their dismissal was

ineffectual.61[12]

AMACC contended in response that the petitioners worked under a contracted

term under a non-tenured appointment and were still within the three-year probationary

period for teachers. Their contracts were not renewed for the following term because

they failed to pass the Performance Appraisal System for Teachers (PAST ) while others

failed to comply with the other requirements for regularization, promotion, or increase in

salary. This move, according to AMACC, was justified since the school has to maintain

its high academic standards.62[13]



The Labor Arbiter Ruling

On March 15, 2002, Labor Arbiter (LA) Florentino R. Darlucio declared in hisdecision63[14] that the petitioners had been illegally dismissed, and ordered AMACC to

reinstate them to their former positions without loss of seniority rights and to pay them

full backwages, attorney’s fees and 13th month pay. The LA ruled that Article 281 of the

Labor Code on probationary employment applied to the case; that AMACC allowed the

petitioners to teach for the first semester of school year 2000-200; that AMACC did not

specify who among the petitioners failed to pass the PAST and who among them did

not comply with the other requirements of regularization, promotions or increase in

salary; and that the petitioners’ dismissal could not be sustained on the basis of

AMACC’s ―vague and general allegations‖ without substantial factual basis.64[15]

Significantly, the LA found no ―discrimination in the adjustments for the salary rate of the

faculty members based on the performance and other qualification which is an exercise

of management prerogative .‖65[16] On this basis, the LA paid no heed to the claims for

salary increases.

The NLRC Ruling

On appeal, the NLRC in a Resolution dated July 18, 200566[17] denied

AMACC’s appeal for lack of merit and affirmed in toto the LA’s ruling. The NLRC,

however, observed that the applicable law is Section 92 of the Manual of Regulations

for Private Schools (which mandates a probationary period of nine consecutive

trimesters of satisfactory service for academic personnel in the tertiary level where



collegiate courses are offered on a trimester basis), not Article 281 of the Labor Code

(which prescribes a probationary period of six months) as the LA ruled. Despite this

observation, the NLRC affirmed the LA’s finding of illegal dismissal since the petitioners

were terminated on the basis of standards that were only introduced near the end of

their probationary period.

The NLRC ruled that the new screening guidelines for the school year 2000-

20001 cannot be imposed on the petitioners and their employment contracts since the

new guidelines were not imposed when the petitioners were first employed in 1998.

According to the NLRC, the imposition of the new guidelines violates Section 6(d) of

Rule I, Book VI of the Implementing Rules of the Labor Code, which provides that ―in all

cases of probationary employment, the employer shall make known to the employee the

standards under which he will qualify as a regular employee at the time of his

engagement.‖ Citing our ruling in Orient Express Placement Philippines v. NLRC ,67[18]

the NLRC stressed that the rudiments of due process demand that employees should

be informed beforehand of the conditions of their employment as well as the basis for

their advancement.

AMACC elevated the case to the CA via a petition for certiorari under Rule 65 of

the Rules of Court. It charged that the NLRC committed grave abuse of discretion in:

(1) ruling that the petitioners were illegally dismissed; (2) refusing to recognize and give

effect to the petitioner’s valid term of employment; (3) ruling that AMACC cannot apply

the performance standards generally applicable to all faculty members; and (4) ordering

the petitioners’ reinstatement and awarding them backwages and attorney’s fees.

The CA Ruling



In a decision issued on November 29, 2007,68[19] the CA granted AMACC’s

petition for certiorari and dismissed the petitioners’ complaint for illegal dismissal.

The CA ruled that under the Manual for Regulations for Private Schools, a

teaching personnel in a private educational institution (1) must be a full time teacher; (2)

must have rendered three consecutive years of service; and (3) such service must be

satisfactory before he or she can acquire permanent status.

The CA noted that the petitioners had not completed three (3) consecutive yearsof service (i.e. six regular semesters or nine consecutive trimesters of satisfactory

service) and were still within their probationary period; their teaching stints only covered

a period of two (2) years and three (3) months when AMACC decided not to renew their

contracts on September 7, 2000.

The CA effectively found reasonable basis for AMACC not to renew thepetitioners’ contracts. To the CA, the petitioners were not actually dismissed; their

respective contracts merely expired and were no longer renewed by AMACC because

they failed to satisfy the school’s standards for the school year 2000-2001 that

measured their fitness and aptitude to teach as regular faculty members. The CA

emphasized that in the absence of any evidence of bad faith on AMACC’s part, the

court would not disturb or nullify its discretion to set standards and to select for

regularization only the teachers who qualify, based on reasonable and non-

discriminatory guidelines.

The CA disagreed with the NLRC’s ruling that the new guidelines for the school

year 2000-20001 could not be imposed on the petitioners and their employment

contracts. The appellate court opined that AMACC has the inherent right to upgrade the

quality of computer education it offers to the public; part of this pursuit is the

implementation of continuing evaluation and screening of its faculty members for

academic excellence. The CA noted that the nature of education AMACC offers



demands that the school constantly adopt progressive performance standards for its

faculty to ensure that they keep pace with the rapid developments in the field of

information technology.

Finally, the CA found that the petitioners were hired on a non-tenured basis and

for a fixed and predetermined term based on the Teaching Contract exemplified by the

contract between the petitioner Lachica and AMACC. The CA ruled that the non-

renewal of the petitioners’ teaching contracts is sanctioned by the doctrine laid down in

Brent School, Inc. v. Zamora 69[20] where the Court recognized the validity of contracts

providing for fixed-period employment.

THE PETITION

The petitioners cite the following errors in the CA decision:70[21]

1) The CA gravely erred in reversing the LA and NLRC illegal dismissal

rulings; and

2) The CA gravely erred in not ordering their reinstatement with full,

backwages.

The petitioners submit that the CA should not have disturbed the findings of the

LA and the NLRC that they were illegally dismissed; instead, the CA should have

accorded great respect, if not finality, to the findings of these specialized bodies as

these findings were supported by evidence on record. Citing our ruling in Soriano v.

National Labor Relations Commission ,71[22] the petitioners contend that in certiorari



proceedings under Rule 65 of the Rules of Court, the CA does not assess and weigh

the sufficiency of evidence upon which the Labor Arbiter and the NLRC based their

conclusions. They submit that the CA erred when it substituted its judgment for that of

the Labor Arbiter and the NLRC who were the ― triers of facts ‖ who had the opportunity

to review the evidence extensively.

On the merits, the petitioners argue that the applicable law on probationary

employment, as explained by the LA, is Article 281 of the Labor Code which mandates

a period of six (6) months as the maximum duration of the probationary period unless

there is a stipulation to the contrary; that the CA should not have disturbed the LA’s

conclusion that the AMACC failed to support its allegation that they did not qualify

under the new guidelines adopted for the school year 2000-2001; and that they were

illegally dismissed; their employment was terminated based on standards that were not

made known to them at the time of their engagement. On the whole, the petitioners

argue that the LA and the NLRC committed no grave abuse of discretion that the CA

can validly cite.

THE CASE FOR THE RESPONDENT

In their Comment,72[23] AMACC notes that the petitioners raised no substantial

argument in support of their petition and that the CA correctly found that the petitioners

were hired on a non-tenured basis and for a fixed or predetermined term. AMACC

stresses that the CA was correct in concluding that no actual dismissal transpired; it

simply did not renew the petitioners’ respective employment contracts because of their

poor performance and failure to satisfy the school’s standards.

AMACC also asserts that the petitioners knew very well that the applicable

standards would be revised and updated from time to time given the nature of the



teaching profession. The petitioners also knew at the time of their engagement that

they must comply with the school’s regularization policies as stated in the Faculty

Manual. Specifically, they must obtain a passing rating on the Performance

Appraisal for Teachers (PAST) – the primary instrument to measure the

performance of faculty members.

Since the petitioners were not actually dismissed, AMACC submits that the CA

correctly ruled that they are not entitled to reinstatement, full backwages and attorney’s

fees.

THE COURT’S RULING

We find the petition meritorious.

The CA’s Review of Factual Findingsunder Rule 65

We agree with the petitioners that, as a rule in certiorari proceedings under Rule

65 of the Rules of Court, the CA does not assess and weigh each piece of evidence

introduced in the case. The CA only examines the factual findings of the NLRC to

determine whether or not the conclusions are supported by substantial evidence whose

absence points to grave abuse of discretion amounting to lack or excess of

jurisdiction.73[24] In the recent case of Protacio v. Laya Mananghaya & Co .,74[25] we

emphasized that:



As a general rule, in certiorari proceedings under Rule 65 of the

Rules of Court, the appellate court does not assess and weigh thesufficiency of evidence upon which the Labor Arbiter and the NLRC basedtheir conclusion. The query in this proceeding is limited to the

determination of whether or not the NLRC acted without or in excess of its jurisdiction or with grave abuse of discretion in rendering its decision.However, as an exception, the appellate court may examine andmeasure the factual findings of the NLRC if the same are notsupported by substantial evidence. The Court has not hesitated toaffirm the appellate court’s reversals of the decisions of labor tribunals if they are not supported by substantial evidence.[Emphasis supplied]

As discussed below, our review of the records and of the CA decision shows that

the CA erred in recognizing that grave abuse of discretion attended the NLRC’s

conclusion that the petitioners were illegally dismissed. Consistent with this conclusion,

the evidence on record show that AMACC failed to discharge its burden of proving by

substantial evidence the just cause for the non-renewal of the petitioners’ contracts.

In Montoya v. Transmed Manila Corporation ,75[26] we laid down our basic

approach in the review of Rule 65 decisions of the CA in labor cases, as follows:

In a Rule 45 review, we consider the correctness of the assailedCA decision, in contrast with the review for jurisdictional error that weundertake under Rule 65. Furthermore, Rule 45 limits us to the review of questions of law raised against the assailed CA decision. In ruling for legal correctness, we have to view the CA decision in the same contextthat the petition for certiorari it ruled upon was presented to it; we have to

examine the CA decision from the prism of whether it correctlydetermined the presence or absence of grave abuse of discretion inthe NLRC decision before it, not on the basis of whether the NLRCdecision on the merits of the case was correct. In other words, wehave to be keenly aware that the CA undertook a Rule 65 review, not areview on appeal, of the NLRC decision challenged before it. This is theapproach that should be basic in a Rule 45 review of a CA ruling in a labor case. In question form, the question to ask is: Did the CA correctlydetermine whether the NLRC committed grave abuse of discretion inruling on the case?



Following this approach, our task is to determine whether the CA correctly found

that the NLRC committed grave abuse of discretion in ruling that the petitioners were

illegally dismissed.

Legal Environment in the Employment of Teachers

a. Rule on Employment on Probationary Status

A reality we have to face in the consideration of employment on probationary

status of teaching personnel is that they are not governed purely by the Labor Code.

The Labor Code is supplemented with respect to the period of probation by special

rules found in the Manual of Regulations for Private Schools.76[27] On the matter of

probationary period , Section 92 of these regulations provides:

Section 92. Probationary Period. – Subject in all instances tocompliance with the Department and school requirements, theprobationary period for academic personnel shall not be more than three(3) consecutive years of satisfactory service for those in the elementaryand secondary levels, six (6) consecutive regular semesters of satisfactoryservice for those in the tertiary level, and nine (9) consecutive trimestersof satisfactory service for those in the tertiary level where collegiatecourses are offered on a trimester basis. [Emphasis supplied]

The CA pointed this out in its decision (as the NLRC also did), and we confirm

the correctness of this conclusion. Other than on the period, the following quoted

portion of Article 281 of the Labor Code still fully applies:

x x x The services of an employee who has been engaged on aprobationary basis may be terminated for a just cause when he fails toqualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement . An employee who is allowed to work after a probationaryperiod shall be considered a regular employee. [Emphasis supplied]



b. Fixed-period Employment

The use of employment for fixed periods during the teachers’ probationary period

is likewise an accepted practice in the teaching profession. We mentioned this in

passing in Magis Young Achievers’ Learning Center v. Adelaida P. Manalo,77[28] albeit

a case that involved elementary, not tertiary, education, and hence spoke of a school

year rather than a semester or a trimester. We noted in this case:

The common practice is for the employer and the teacher toenter into a contract, effective for one school year. At the end of theschool year, the employer has the option not to renew the contract,particularly considering the teacher’s performance. If the contract is notrenewed, the employment relationship terminates. If the contract isrenewed, usually for another school year, the probationary employmentcontinues. Again, at the end of that period, the parties may opt to renewor not to renew the contract. If renewed, this second renewal of thecontract for another school year would then be the last year – since itwould be the third school year – of probationary employment. At the end

of this third year, the employer may now decide whether to extend apermanent appointment to the employee, primarily on the basis ofthe employee having met the reasonable standards of competenceand efficiency set by the employer. For the entire duration of thisthree-year period, the teacher remains under probation. Upon theexpiration of his contract of employment, being simply on probation,he cannot automatically claim security of tenure and compel theemployer to renew his employment contract. It is when the yearlycontract is renewed for the third time that Section 93 of the Manualbecomes operative, and the teacher then is entitled to regular or permanent employment status.

It is important that the contract of probationary employment specifythe period or term of its effectivity. The failure to stipulate its preciseduration could lead to the inference that the contract is binding for the fullthree-year probationary period.



We have long settled the validity of a fixed-term contract in the case Brent School, Inc.

v. Zamora 78[29] that AMACC cited. Significantly, Brent happened in a school setting.

Care should be taken, however, in reading Brent in the context of this case as Brent did

not involve any probationary employment issue; it dealt purely and simply with the

validity of a fixed-term employment under the terms of the Labor Code, then newly

issued and which does not expressly contain a provision on fixed-term employment.

c. Academic and Management Prerogative

Last but not the least factor in the academic world, is that a school enjoys

academic freedom – a guarantee that enjoys protection from the Constitution no less.

Section 5(2) Article XIV of the Constitution guarantees all institutions of higher learning

academic freedom.79[30]

The institutional academic freedom includes the right of the school or college to

decide and adopt its aims and objectives, and to determine how these objections can

best be attained, free from outside coercion or interference, save possibly when the

overriding public welfare calls for some restraint. The essential freedoms subsumed in

the term ―academic freedom‖ encompass the freedom of the school or college to

determine for itself: (1) who may teach; (2) who may be taught; (3) how lessons shall be

taught; and (4) who may be admitted to study.80[31]

AMACC’s right to academic freedom is particularly important in the present case,

because of the new screening guidelines for AMACC faculty put in place for the school

year 2000-2001. We agree with the CA that AMACC has the inherent right to establish



high standards of competency and efficiency for its faculty members in order to achieve

and maintain academic excellence. The school’s prerogative to provide standards for

its teachers and to determine whether or not these standards have been met is in

accordance with academic freedom that gives the educational institution the right to

choose who should teach.81[32] In Peña v. National Labor Relations

Commission ,82[33] we emphasized:

It is the prerogative of the school to set high standards of efficiency for itsteachers since quality education is a mandate of the Constitution.

As long

as the standards fixed are reasonable and not arbitrary, courts are not atliberty to set them aside. Schools cannot be required to adopt standards

which barely satisfy criteria set for government recognition.

The same academic freedom grants the school the autonomy to decide for itself

the terms and conditions for hiring its teacher, subject of course to the overarching

limitations under the Labor Code. Academic freedom, too, is not the only legal basis for

AMACC’s issuance of screening guidelines. The authority to hire is likewise covered

and protected by its management prerogative – the right of an employer to regulate all

aspects of employment, such as hiring, the freedom to prescribe work assignments,

working methods, process to be followed, regulation regarding transfer of employees,

supervision of their work, lay-off and discipline, and dismissal and recall of

workers.83[34] Thus, AMACC has every right to determine for itself that it shall use

fixed-term employment contracts as its medium for hiring its teachers. It also acted

within the terms of the Manual of Regulations for Private Schools when it recognized the

petitioners to be merely on probationary status up to a maximum of nine trimesters.

The Conflict: Probationary Status

and Fixed-term Employment



The existence of the term-to-term contracts covering the petitioners’ employment

is not disputed, nor is it disputed that they were on probationary status – not permanent

or regular status – from the time they were employed on May 25, 1998 and until the

expiration of their Teaching Contracts on September 7, 2000. As the CA correctly

found, their teaching stints only covered a period of at least seven (7) consecutive

trimesters or two (2) years and three (3) months of service. This case, however,

brings to the fore the essential question of which, between the two factors

affecting employment, should prevail given AMACC’s position that the teachers

contracts expired and it had the right not to renew them . In other words, should

the teachers’ probationary status be disregarded simply because the contracts werefixed-term?

The provision on employment on probationary status under the Labor

Code84[35] is a primary example of the fine balancing of interests between labor and

management that the Code has institutionalized pursuant to the underlying intent of the

Constitution.85[36]

On the one hand, employment on probationary status affords management the

chance to fully scrutinize the true worth of hired personnel before the full force of the

security of tenure guarantee of the Constitution comes into play.86[37] Based on the

standards set at the start of the probationary period, management is given the widest

opportunity during the probationary period to reject hirees who fail to meet its own

adopted but reasonable standards .87[38] These standards, together with the just 88[39]



and authorized causes 89[40] for termination of employment the Labor Code expressly

provides , are the grounds available to terminate the employment of a teacher on

probationary status. For example, the school may impose reasonably stricter

attendance or report compliance records on teachers on probation, and reject a

probationary teacher for failing in this regard, although the same attendance or

compliance record may not be required for a teacher already on permanent status. At

the same time, the same just and authorizes causes for dismissal under the Labor Code

apply to probationary teachers, so that they may be the first to be laid-off if the school

does not have enough students for a given semester or trimester. Termination of

employment on this basis is an authorized cause under the Labor Code.90[41]

Labor, for its part, is given the protection during the probationary period of

knowing the company standards the new hires have to meet during the probationary

period, and to be judged on the basis of these standards , aside from the usual

standards applicable to employees after they achieve permanent status. Under the

terms of the Labor Code, these standards should be made known to the teachers on

probationary status at the start of their probationary period, or at the very least under

the circumstances of the present case, at the start of the semester or the trimester

during which the probationary standards are to be applied. Of critical importance in

invoking a failure to meet the probationary standards, is that the school should show –

as a matter of due process – how these standards have been applied . This is

effectively the second notice in a dismissal situation that the law requires as a due

process guarantee supporting the security of tenure provision,91[42] and is in

furtherance, too, of the basic rule in employee dismissal that the employer carries the



burden of justifying a dismissal.92[43] These rules ensure compliance with the limited

security of tenure guarantee the law extends to probationary employees.93[44]

When fixed-term employment is brought into play under the above probationary

period rules, the situation – as in the present case – may at first blush look muddled as

fixed-term employment is in itself a valid employment mode under Philippine law and

jurisprudence.94[45] The conflict, however, is more apparent than real when the

respective nature of fixed-term employment and of employment on probationary status

are closely examined.

The fixed-term character of employment essentially refers to the period agreed

upon between the employer and the employee; employment exists only for the duration

of the term and ends on its own when the term expires. In a sense, employment on

probationary status also refers to a period because of the technical meaning ― probation ‖

carries in Philippine labor law – a maximum period of six months, or in the academe, a

period of three years for those engaged in teaching jobs. Their similarity ends there,

however, because of the overriding meaning that being ―on probation ‖ connotes, i.e., a

process of testing and observing the character or abilities of a person who is new to a

role or job.95[46]

Understood in the above sense, the essentially protective character of

probationary status for management can readily be appreciated. But this same

protective character gives rise to the countervailing but equally protective rule that the

probationary period can only last for a specific maximum period and under reasonable,



well-laid and properly communicated standards. Otherwise stated, within the period of

the probation, any employer move based on the probationary standards and affecting

the continuity of the employment must strictly conform to the probationary rules.

Under the given facts where the school year is divided into trimesters, the school

apparently utilizes its fixed-term contracts as a convenient arrangement dictated by the

trimestral system and not because the workplace parties really intended to limit the

period of their relationship to any fixed term and to finish this relationship at the end of

that term. If we pierce the veil, so to speak, of the parties’ so-called fixed-term

employment contracts, what undeniably comes out at the core is a fixed-term contract

conveniently used by the school to define and regulate its relations with its teachers

during their probationary period .

To be sure, nothing is illegitimate in defining the school-teacher relationship in

this manner. The school, however, cannot forget that its system of fixed-term contract

is a system that operates during the probationary period and for this reason is subject to

the terms of Article 281 of the Labor Code. Unless this reconciliation is made, the

requirements of this Article on probationary status would be fully negated as the

school may freely choose not to renew contracts simply because their terms have

expired. The inevitable effect of course is to wreck the scheme that the

Constitution and the Labor Code established to balance relationships between

labor and management.

Given the clear constitutional and statutory intents, we cannot but conclude that

in a situation where the probationary status overlaps with a fixed-term contract not

specifically used for the fixed term it offers , Article 281 should assume primacy and the

fixed-period character of the contract must give way. This conclusion is immeasurably

strengthened by the petitioners’ and the AMACC’s hardly concealed expectation that

the employment on probation could lead to permanent status, and that the contracts are

renewable unless the petitioners fail to pass the school’s standards.

To highlight what we mean by a fixed-term contract specifically used for the fixed

term it offers , a replacement teacher, for example, may be contracted for a period of



one year to temporarily take the place of a permanent teacher on a one-year study

leave. The expiration of the replacement teacher’s contracted term, under the

circumstances, leads to no probationary status implications as she was never employed

on probationary basis; her employment is for a specific purpose with particular focus on

the term and with every intent to end her teaching relationship with the school upon

expiration of this term.

If the school were to apply the probationary standards (as in fact it says it did in

the present case), these standards must not only be reasonable but must have also

been communicated to the teachers at the start of the probationary period, or at the very

least, at the start of the period when they were to be applied. These terms, in addition

to those expressly provided by the Labor Code , would serve as the just cause for the

termination of the probationary contract. As explained above, the details of this finding

of just cause must be communicated to the affected teachers as a matter of due

process.

AMACC, by its submissions, admits that it did not renew the petitioners’ contracts

because they failed to pass the Performance Appraisal System for Teachers (PAST)

and other requirements for regularization that the school undertakes to maintain its high

academic standards.96[47] The evidence is unclear on the exact terms of the

standards, although the school also admits that these were standards under the

Guidelines on the Implementation of AMACC Faculty Plantilla put in place at the start of

school year 2000-2001.

While we can grant that the standards were duly communicated to the petitioners

and could be applied beginning the 1st

trimester of the school year 2000-2001, glaring

and very basic gaps in the school’s evidence still exist. The exact terms of the

standards were never introduced as evidence; neither does the evidence show how

these standards were applied to the petitioners.97[48] Without these pieces of



evidence (effectively, the finding of just cause for the non-renewal of the petitioners’

contracts), we have nothing to consider and pass upon as valid or invalid for each of the

petitioners. Inevitably, the non-renewal (or effectively, the termination of employment of

employees on probationary status) lacks the supporting finding of just cause that the

law requires and, hence, is illegal.

In this light, the CA decision should be reversed. Thus, the LA’s decision,

affirmed as to the results by the NLRC, should stand as the decision to be enforced,

appropriately re-computed to consider the period of appeal and review of the case up to

our level.

Given the period that has lapsed and the inevitable change of circumstances that

must have taken place in the interim in the academic world and at AMACC, which

changes inevitably affect current school operations, we hold that - in lieu of

reinstatement - the petitioners should be paid separation pay computed on a trimestral

basis from the time of separation from service up to the end of the complete trimester

preceding the finality of this Decision.98[49] The separation pay shall be in addition to

the other awards, properly recomputed, that the LA originally decreed.

WHEREFORE, premises considered, we hereby GRANT the petition, and,

consequently, REVERSE and SET ASIDE the Decision of the Court of Appeals dated

November 29, 2007 and its Resolution dated June 20, 2008 in CA-G.R. SP No. 96599.

The Labor Arbiter’s decision of March 15, 2002, subsequently affirmed as to the results

by the National Labor Relations Commission, stands and should be enforced with

appropriate re-computation to take into account the date of the finality of this Decision.

In lieu of reinstatement, AMA Computer College-Parañaque City, Inc. is hereby

DIRECTED to pay separation pay computed on a trimestral basis from the time of

separation from service up to the end of the complete trimester preceding the finality of

this Decision. For greater certainty, the petitioners are entitled to:



(a) backwages and 13th

month pay computed from September

7, 2000 (the date AMA Computer College-Parañaque City, Inc.

illegally dismissed the petitioners) up to the finality of this Decision;

(b) monthly honoraria (if applicable) computed from September

7, 2000 (the time of separation from service) up to the finality of this

Decision; and

(c) separation pay on a trimestral basis from September 7, 2000 (the time

of separation from service) up to the end of the complete trimester

preceding the finality of this Decision.

The labor arbiter is hereby ORDERED to make another re-computation

according to the above directives. No costs.

SO ORDERED.

Consti2 Academic Freedom

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