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January 22, 2021

Scrapping Of UP-DND Accord Pushed As Early As 2018; ‘Where’s Mutual Trust, Respect Between Gov’t Entities?’

Scrapping Of UP-DND Accord Pushed As Early As 2018; ‘Where’s Mutual Trust, Respect Between Gov’t Entities?’ Members of the University Philippines community stage a rally at UP Diliman on Jan. 19, 2021 to protest the abrogation of an agreement barring the entry of the military and the police in UP campuses without coordinating with campus officials. Photos by Ernie Peñaredondo, The Philippine STAR

National Task Force to End Local Communist Armed Conflict spokesperson Lt. Gen. Antonio Parlade Jr. bared on Wednesday night, Jan. 20, that the they had been pushing for the abrogation of the agreement between the University of the Philippines (UP) and the Department of National Defense (DND) preventing the uncoordinated entry of the military and the police in campuses as early as 2018.

Throwing his support behind DND Secretary Delfin Lorenzana’s move, Parlade said the decision was prompted by allegations of students going “missing… because of their involvement in the armed struggle,” which they earlier aired in the Senate national defense committee’s inquiry last November.

He expressed dismay that law enforcers could only “neutralize 3,600 armed rebels,” claiming that the New People’s Army (NPA) was still attracting recruits from UP.

“At the end of the day, parang kakaunti lang ‘yung nabawas (it seems like only a few were deducted), so why is that? That’s because of the continuous recruitment We’ve always believed that the center of gravity as far as recruitment of cadres specifically of the New People’s Army is the University of the Philippines,” Parlade claimed during an interview with “The Chiefs” on One News / TV 5.

Wala kaming halos magawa. ‘Yung classrooms, ‘yung offices, ginagamit nila (We cannot do much. The classrooms, the offices, they use) for meetings for these terrorist acts or activities related to the Communist Party or the armed rebellion. Halos libre, libre lang na-a-avail diyan sa (Almost free, they can freely avail themselves of those there in the) University of the Philippines,” he said.

Parlade argued that the hot pursuit exception under the agreement was not enough for law enforcers. He said they should be allowed to enter UP without permission even if they had no personal knowledge of criminal acts taking place in its premises.

“I’m not a lawyer, no, but I think when you say ‘hot pursuit,’ a crime just happened and you’re pursuing these criminals. A lot of things are happening there, like planning for terrorist acts, or doing preparations for terrorist activity,” Parlade said.

“Under surveillance ‘yon (That’s under surveillance), and I think that will not qualify as a hot pursuit, kasi initial stage pa lang sila eh (because it’s still in the initial stage),” he added.

Parlade said state forces will monitor the “terroristic” activities of organizations inside UP. “Let’s just stick to the monitoring, we have been doing monitoring functions as part of our mandate. That is part of the job of the security sector.”

According to Parlade, state enforcers can also apply the new Anti-Terrorism Act against organizations believed to be conducting illegal activities inside classrooms and halls of UP. The military official also mentioned that actual military operations inside UP are still up for discussion, but said that they will not conduct patrols inside campus.

“Whatever we decide definitely is to perform our functions properly. Coordination with UP, there’s no problem as long as no one’s hiding anything,” he said.

Unfair to UP?

Lorenzana terminated the agreement through a letter sent to UP on Jan. 15.

Former UP president Jose Abueva, who signed the agreement with then defense secretary Fidel Ramos said he was appalled and dismayed by the unilateral move of the DND.

“There was a deep, mutual understanding of the need to uphold this agreement and do everything for the good of UP and the rights of its students, faculty and staff. This understanding was rooted in mutual trust, and mutual respect,” Abueva stressed.

Following the signing of the agreement in 1989, Abueva described it as a landmark in the evolution of democracy and the protection of UP’s academic freedom. “It also reflects positively on the enlightened leadership of our (DND) and military and police,” he said at the time.

Integrated Bar of the Philippines national president Dominic Egon Cayosa, a UP alumnus, disagreed with the arguments that the lack of an exit clause in the accord has the effect of making an agreement indefinitely effective.

In an interview The Chiefs on Tuesday, Jan. 19, Cayosa said: “In terms of the agreement, any of the parties can walk away from it. If you talk about legalities, the DND can actually terminate it, kasi wala naman ‘tong termino, wala namang limit (because there is no term, there is no limit).”

But Cayosa said the issue is “not about legality” and is more about “fairness and courtesies.” “Where is the statesmanship? Where is the courtesy? Where is the mutual trust and respect between agencies of government?”

“‘Di ba mas maganda, since dalawang panig ‘yan, bago naman maglimutan, magtalikuran, mag-usap-usap muna (Isn’t it better, since there are two sides, before forgetting and turning their backs against each other, to talk it out first)?” Cayosa said.

Mayroon ba ‘yang basehan? O baka pwede namang lutasin ‘yung mga issue, mga problema nang hindi nagkakalimutan, dahil napakaimportante ang prinsipyo dito sa agreement na ito? (Does that have any basis? Or maybe we can solve the issues, the problems without forgetting about each other, because the principles in this agreement are so important?)” he added.

The move, Cayosa said, will not help the military in any way as it would result in stronger backlash and even increase activism in UP.

“What might be perceived is the insecurity of the government. Because in previous governments, they were so confident, they were so statesmanly, there was mutual respect,” he added.

UP law professorial lecturer Tony La Viña, who was president of the university’s law student government from 1988 to 1989, earlier said the DND had no right to unilaterally terminate the agreement.

Cayosa believed that there was no need for the agreement, since the UP community can claim rights under the 1987 Constitution anyway.

Sa totoo lang, hindi naman ‘yan kinakailangan ng UP, sapagkat ang ating karapatang malayang pamamahayag, mag-isip, mag-critique, at mag-aral, nasa Konstitusyon. Wala ‘yan sa agreement na ‘yan. Kahit tanggalin ‘yan ng DND, may obligasyon pa rin ang UP (To be honest, UP does not need it, because our freedom of expression, thought, critique, and studying are in the Constitution. These are not in that agreement. Even if the DND gets rid of it, UP will still have its obligations),” he said.

On the other hand, Cayosa questioned if the government wanted to show that it was “mahina (weak)” that it needed to avoid informing UP officials about their operations.

He said previous governments were so confident because even if they gave UP freedom and space, they were able to accomplish their mission.

‘Guarantee for all time’

Ramos, who became president of the country, intended to give UP a “guarantee for all time” against uncoordinated entry by law enforcers into its premises, according to the lawyer who helped craft the 1989 agreement.

In a phone interview with The Philippine STAR, former UP general counsel Demaree Raval said the university and the DNP understood that the agreement should be “one that will last” and “will not be subject to change whoever will be in the government, especially in the defense establishment.”

Raval recalled that when the agreement was about to be signed on June 30, 1989, Renato de Villa, then chief of staff of the Armed Forces of the Philippines (AFP), pulled then UP Diliman chancellor Ernesto Tabujara aside and raised the implication of a lack of an exit clause that would allow either side to terminate the agreement.

Lumapit silang pareho sa amin. ‘Kung ayaw na namin, kung may magbago, ano’ng gagawin namin? (They approached us. ‘If we do not want it anymore, if something changes, what will we do?)” he remembered being asked.

He then explained that this was the purpose of the clause creating a Joint Monitoring Group consisting of UP and DND representatives: to discuss concerns regarding the implementation of the agreement, address the problems, or maybe even expand its coverage if needed.

Raval said he also explained to Abueva and Ramos that the creation of the Joint Monitoring Group was “the most important provision,” because the idea was that the agreement would be effective “for all time.”

“I remember FVR saying, ‘Walang atrasan dito ah, OK. Walang atrasan dito, pangmatagalan ‘to (There’s no backing out here ah, okay. There’s no backing out here, this is for good),” Raval said about the signing of the agreement. “I heard it not only once from him, but twice!”

‘Inalienable rights’

The creation of the Joint Monitoring Group was meant to be the substitute for the exit clause. Raval said his initial draft of the contract gave UP and the DND a choice of one academic year or one academic semester prior notice for the termination to take effect.

He said he was dissuaded by then civil law professor (later UP College of Law dean) Salvador Carlota since both sides wanted it to last.

Meanwhile, Abueva affirmed that the agreement was reached because “Ramos and I had great respect for each other and for the institutions we represented.”

In a statement on Wednesday, Jan. 20, he said the signatories understood the rights to freedom, democracy, justice and peace to be “inalienable” and meant to last “beyond our respective presidencies.”

For Raval, it was “questionable” for Lorenzana to end the agreement one-sidedly, because the Joint Monitoring Group could have been convened instead to address his claims of an “ongoing clandestine recruitment” by the Communist Party of the Philippines and the New People’s Army.

The military’s legal theory

In his Jan. 15 letter, Lorenzana invoked another clause in the agreement – “nothing herein shall be construed as a prohibition against the enforcement of the laws of the land” – as his legal basis for terminating it on his own without going to court.

Lorenzana interpreted this clause to mean that the agreement recognized “the primary responsibility of the law enforcement agencies in implementing the laws without hindrance as long as it is within the prescribed procedures mandated by the law.”

Raval refuted Lorenzana’s interpretation, saying the agreement did not violate any law and there was no measure justifying the manner of the abrogation.

“What’s against the law?” he asked, pointing out that the agreement gave much leeway for legitimate police and military operations.

AFP spokesperson Major Gen. Edgard Arevalo laid out the rest of the military’s legal theory in a press briefing on Wednesday.

Arevalo, a lawyer since 2008, claimed the agreement was “contrary to public policy,” because “we are depriving the public of their right to be ensured to be safe.” He now connected the issue to the President Duterte’s war on drugs, which was not mentioned in Lorenzana’s letter.

Paano na lamang po kung mayroong shabu laboratory, for instance, sa loob ng University of the Philippines community or campus and meron tayong valid arrest warrant at search warrant (What if we have a shabu laboratory, for instance, inside the University of the Philippines community or campus and we have a valid arrest warrant and search warrant)?” he asked.

UP has its own police force that can make arrests and turn over suspects to the concerned unit. Non-UP police may either wait to be asked for assistance or give prior notification to the UP president or the chancellor of the concerned constituent university before enforcing the warrants in the company of UP police or security and in the presence of at least two designated faculty members.

But Arevalo argued that requiring law enforcers to seek the permission of UP officials before enforcing the warrants is a “violation of the Rules of Court.”

He contended: “Kung mayro’n ka nang search or arrest warrant ay pwede mo nang hulihin ‘yung isang taong pinaghahanap (If you already have a search or warrant, you can already go after the person you are looking for).”

In the same briefing, Lorenzana complained about the inconvenience of abiding by precautions meant to safeguard the security of UP students, faculty and employees.

He claimed that the procedure “defeats the purpose” of the warrants. Asked for a real-life example of such a problem, Lorenzana said: “I think we do not need an example.”

He then quickly changed his argument to the equal protection of laws: “Dapat pantay-pantay lahat ng mga schools (All schools should be the same). We can do this in Ateneo. Why can’t we do it in UP?”

Asked about these arguments, Raval pointed out: “We’ll not stop them, all they have to do is give notice…We are not violating, let’s say, the provision on the service of warrants.” He said the accord clearly mirrors the rules on the proper service of warrants.

He compared the scenario to how warrants in any other establishment cannot be served without informing the persons that they would have to enter. “You just don’t barge into a house. Only when they refuse, pwede silang pumasok (then they can enter),” he emphasized.

‘Voided by the passage of time’

Raval explained that the principle of mutuality of contracts binds the parties to the agreement, unless there was an “extraordinary” change in the circumstances that may allow one side to get out.

Mutuality of contracts is expressed in Article 1308 of the Civil Code, which states: “The contract must bind both contracting parties; its validity or compliance cannot be left to the will of one of them.”

But Arevalo believed that “the agreement has been voided by the passage of time.” Lorenzana also said the accord had become obsolete

He invoked the principle of “rebus sic stantibus,” which means that the contract itself stops existing in light of exceptional changes of circumstances.

Rebus sic stantibus is “said to be the basis” of Article 1267 of the Civil Code, which provides: “When the service has become so difficult as to be manifestly beyond the contemplation of the parties, the obligor may also be released therefrom, in whole or in part.”

The change invoked by Arevalo pertained to the establishment of the Philippine National Police under the Department of the Interior and Local Government in 1991, a year after the Ramos-Abueva Accord. The PNP replaced the Philippine Constabulary that had been part of the DND.

Raval, however, pointed out that Abueva in 1992 signed another agreement with then interior secretary Rafael Alunan III that subjected the PNP to the prior notification requirement too. (At this point, Raval was no longer UP general counsel.)

He did not see the principle of rebus sic stantibus applicable, because even in 1989, UP has “always” been alleged to be “the recruiting ground for communists.”

‘Urban gardening’ in a UP forest

Amid the dispute about the legality of Lorenzana’s actions, rifle-toting, camouflage-clad officers of the AFP Joint Task Force – National Capital Region went to the UP Arboretum, the forest behind UP Technohub that reaches Central Avenue on Wednesday.

The military officers, who came in trucks, supposedly went to the wooded area as part of the “Alpas COVID-19 Plant Plant Plant” urban gardening project.

The Student Alliance for the Advancement of Democratic Rights in UP, a political party whose affiliate organizations have been tagged by the government as communist fronts without proof, expressed alarm over this development. It noted that the visit came as members of the UP community prepared to “mobilize” in protest of the termination of the Ramos-Abueva Accord.

 Ang tahasang paglabag at sarilinang pagtiwalag sa accord ng AFP ay patunay lamang na nauulol ito para pasukin ang pamantasan at sikilin ang mga kabataan at mamamayang lumalaban (The AFP’s blatant violation and unilateral abrogation of the accord is only proof that it has gone insane in entering the university and suppressing the youth and the people who are fighting back),” STAND UP said.

 Hinding-hindi maikukubli ng kanilang pa-‘gardening’ at ‘livelihood programs’ ang kanilang tunay na pakana. Ang mga pwersa ng estado mismo ang tunay na naghahasik ng terorismo sa kahit sinuman (Their pretense of ‘gardening’ and ‘livelihood programs’ will never hide their real intentions. The state forces themselves are the ones who really wage terrorism against anyone),” the alliance added.

PUP next?

Also worrying for their safety are members of the Polytechnic University of the Philippines community, especially after Duterte Youth Party-list Rep. Ducielle Marie Suarez-Cardema urged the abrogation of a similarly patterned agreement signed by Ramos and then PUP President Nemesio Prudente in 1990.

Lorenzana also said on Wednesday that UP should not enjoy special treatment and that he will terminate any such agreements with other schools too, including PUP.

PUP student regent Ellenor Bartolome and Central Student Council President Jonero Dacula on Wednesday submitted a position paper to the Cardema’s office, other House members, and the DND stating that the abrogation of the Prudente-Ramos Accord “will only stem into a greater threat to the safety, security, and well-being of the Iskolars ng Bayan.”

“For so long, the University has provided a safe zone for highly nurtured learners anchored in the social realities of the world through the exercise of critical thinking in the academe,” the paper read.

It called on the DND to commence a dialogue with UP and PUP to “highlight the highest cooperation and fidelity” of the two state universities to the respective agreements “in order to preserve the common aspirations for peace, justice and freedom in the country.”

Willing to talk but…

Lorenzana has set a condition before any dialogue takes place. He said the UP administration would have to explain the alleged involvement of its students in the communist insurgency.

“Explain to me. Why did they fail to protect these young kids. As a parent, I feel sad for these kids. If they can explain that, we can talk. If not they can forget it,” he said in a press briefing on Wednesday.

The DND released the names of some 20 former students of UP who were allegedly killed in encounters with state forces.

Lorenzana said these students died in the communist rebellion after they were recruited by front organizations, which he said include the Gabriela party-list, the League of Filipino Students, Makabayan, among others.

“Evidence in our records suggests that communist and terrorist groups have been surreptitiously embedded themselves inside UP and are recruiting university students into their illegal organizations under the cover of this agreement,” he added.

Lorenzana admitted he did not consult members of the UP system before he made the decision to abrogate the 1989 UP-DND Accord but said the government does not intend to put up military and police stations inside the UP or any school campus in the country.

The head of the DND allayed fears that this move will be a step towards militarizing UP and other campuses.

 “Freedom of expression is there, academic freedom is there. Lahat ng freedoms they enjoy. How come they equate the abrogation of this contract to militarize UP? No,” he said.

Lorenzana said that there will be abuse of authority by state forces and that legitimate dissent and assemblies are welcomed by the government.

AFP chief of staff General Gilbert Gapay said the termination of the pact will be a good opportunity to forge a better collaboration and relationship between the two institutions.

“We are confident that that voiding of the agreement will bring about an opportunity. As a way forward, we will pursue a more collaborative relationship between UP – and other universities for that matter – to usher a rebirth of schools and state universities that are bastions of genuine, patriotism and not of misguided activism,” Gapay said in a statement.

Gapay alleged that UP has been a rich source of recruits by the NPA Army, which he said will be stopped with the termination of the pact.

“The communist terrorist group can no longer lurk in the university as they did before knowing that the AFP cannot enter the campuses without prior consent of the school administrators,” Gapay said.

Gapay again downplayed concerns that the move will militarize UP and other schools, and said that academic freedom will not be lost with the abrogation.

“The AFP will not interfere on UP’s liberty to choose who may teach, what can be taught, the manner with which it will be taught or may study in UP,” he said.

Disputing claims made by Lorenzana and other military officials,  a UP  official maintained that there is no organized recruitment of communist rebels among students.

“We have not seen any organized recruitment of the students,” UP vice president for public affairs Elena Pernia said in an interview with The Chiefs on Tuesday.

“The university will not support any kind of sedition, any kind of violence, any kind of recruitment that will put our students in danger,” she added.

According to Pernia, the agreement does not totally prevent the military or the police from entering UP campuses, noting a provision that exempts hot pursuit and emergency cases from those covered by the prior notification requirement.

“They can enter. All it takes is a little coordination with the UP officials. There are also some instances without coordination, (such as) pass through, emergencies and the like,” she added.

She also cited other instances when the university collaborated with the military and the police for purposes other than law enforcement, stressing that the agreement was built on trust between the two institutions.

“Over the years that the university has been in existence, our contribution in terms of leadership in different fields is very concrete. We are not feeding the enemies of the state with our people,” Pernia said.

Legislation and legal assistance

Lorenzana’s controversial move has outraged the UP community and has now prompted UP Regent Sen. Joel Villanueva (a University of Santo Tomas alumnus) and three alumni in the Senate – Sens. Juan Edgardo Angara, Nancy Binay and Grace Poe – to file a bill seeking to turn the provisions of the 1989 Ramos-Abueva Accord into law.

Villanueva, Angara, Binay and Poe filed Senate Bill No. 2002 on Wednesday to institutionalize the Ramos-Abueva Accord as part of the law.

The bill proposed the insertion of the stipulations of the Ramos-Abueva Accord as Section 11 of Republic Act No. 9500, or the UP Charter of 2008.

The four senators characterized the abrogation of the accord as an “attack on the University’s autonomy,” and stressed that it only sought to “ensure that our students are protected from unreasonable state intrusion.”

Highlighting that “there is no monopoly of ideology in UP” and that all ideas “can be pursued nonviolently” in its premises, the explanatory note of the bill said: “It is not a rebel recruitment station. On the contrary, it hosts many DDS [who] are free to compete in the marketplace of ideas.”

DDS refers to the ardent die hard Duterte supporters, who have proudly adopted the acronym that notoriously refers to the “Davao Death Squad,” which is blamed for hundreds of extrajudicial killings in his bailiwick of Davao City.

Presidential spokesman Harry Roque said Duterte supports Lorenzana’s move even if he was not consulted before the decision was made. Roque agreed with UP president Danilo Concepcion that UP and the DND should talk about the termination of the agreement.

The senators insisted in their bill that “the UP-DND accord is not a “do-not-enter” sign that bars law enforcement from entering the campus.”

“It is not a wall which obstructs justice or deters the solution or prevention of crime,” read the explanatory note of the bill. “It is unfortunate that its abrogation is being invoked for the wrong reasons. Implying that it has enabled thinking that is critical to the government is a gross misreading of UP’s role as vanguard of independent thought.”

In the meantime, UP Office of Legal Aid Director Carlo Vistan pledged to extend assistance to members of the UP community who will encounter legal issues as a result of the abrogation of the Ramos-Abueva Accord, stressing that the welfare of students and other people in the campuses are at stake.

Joining the call for Lorenzana’s move to be reconsidered, Vistan said in a statement on Wednesday: “Magiging handa ang aming tanggapan na magbigay ng payo at tulong ligal sa mga kasapi ng UP community patungkol sa mga isyung maaaring idulot ng kasalukuyang sitwasyon. (Our office will be ready to give advice and legal assistance to members of the UP community regarding the issues that may arise from the current situation).”

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