Term of Office and Re-appointment of a State University or College President

DOJ OPINION NO. 017 , s. 2009 March 30, 2009 Chairman Emmanuel Y. Angeles Commission on Higher Education Office of the President HEDC Bldg., C.P. Garcia Ave., UP Campus Diliman, Quezon City Sir : This refers to your request for opinion on the queries stated therein relating to the term of office and re-appointment of a state university or college (SUC) President and the rights and privileges accorded to a representative of the principal or regular members of the Governing Board (GB) of SUC as provided for in Republic Act No. 8292, otherwise known as the "Higher Education Modernization Act of 1997" and its Implementing Rules and Regulations (IRR), as contained in "CHED Memorandum Order (CMO) No. 03, S. 2001". Specifically, opinion is requested on the following matters: 1. Whether or not a SUC President can still finish his/her unexpired term beyond the age of seventy (70); 2. Whether or not a SUC President can serve beyond two (2) terms; and 3. Whether or not a mere representative of the principal or regular member of the Governing Board can act with full powers as if the principal or regular member is the one acting. The provision of R.A. No. 8292 relevant to the first query pertinently reads: Section 4. Powers and Duties of Governing Boards. The governing board shall have the following specific powers and duties in addition to its general powers of administration and the exercise of all the powers granted to the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68, otherwise known as the Corporation Code of the Philippines: SDIaCT xxx xxx xxx x) to extend the term of the president of the college or university beyond the age of retirement but not later than the age of seventy (70) , whose performance has been unanimously rated as outstanding and upon unanimous recommendation by the search committee for the president of the institution concerned. (Emphasis supplied) In previous Opinions (No. 17, s. 2001 and No. 14, s. 1998), we have had the occasion to pass on the issue on the validity of an appointment of a SUC President beyond the usual retirement age of sixty-five (65). We held thus: ". . . when a public officer is appointed for a specific term of office, he is supposed to end his office ipso facto at the expiration of the term unless he is authorized to hold-over, or sooner removed for cause. Such term of office is absolute unless qualified by certain circumstances imposed under the law. . . . 1 xxx xxx xxx The appointing power is essentially an executive act involving the exercise of discretion ( Govt. of P.I. vs. Springer, 50 Phil. 599). Of essence to the appointing authority is the power to choose who among the various qualified choices is best qualified ( Pineda vs. Claudio , 28 SCRA 34; Olivares-Torre vs. Bayot, 58 SCRA 270). 2 cAaTED In the case of officers appointed by the President to a fixed term as prescribed by law, it can be assumed that when the President made his choice, he was aware of the personal circumstances of the appointee, including his age, and that he appointed him because he was considered to be the best qualified for the position. To interpret the law in a manner that impairs or infringes his right of choice is certainly unwarranted as it strikes at the very heart of his constitutional prerogative. 3 xxx xxx xxx Similarly, the Civil Service Commission (CSC), in its Resolution No. 981448 dated June 11, 1998, ruled that Mr. Frederick So. Pada, President of the Technological University of the Philippines (TUP) "shall remain in Office even after reaching compulsory retirement age on June 7, 1998. He shall continue to serve as President of the Technological University of the Philippines until July 31, 2000, the expiration of his six-year term of office." In the case of Mr. Pada, he was appointed President of TUP for six (6) years beginning August 1, 1994 until July 31, 2000, pursuant to Section 8 of P.D. No. 1578 (TUP Charter). In ruling that he was entitled to serve his full term of six (6) years despite the intervening event of his compulsory retirement on June 7, 1998, the CSC took into account R.A. No. 8292 which reduced the term of a President of a State University to four (4) years and stressed that "said law made it clear that the terms of incumbent University Presidents . . . shall not be affected with such modification". IcHTAa The CSC also considered the laws on retirement which prescribe the compulsory retirement age for public officers and categorically stated that these retirement laws being of general application cannot prevail over P.D. No. 1518, a special law, which fixed the six-year term of the TUP President. Since Mr. Pada was appointed to a fixed "term", which is "the definite period of time prescribed by law by which an officer may hold office" (citing Ambas vs. Buenaseda, 201 SCRA 308), the CSC ruled that Mr. Pada was entitled to remain in office up to the end of his term on July 31, 2000". 4 Applying the aforequoted provision of Section 4 (x) of R.A. No. 8292, therefore, while the incumbent can serve the remaining term beyond the age of sixty-five (65) years old in meritorious circumstances, as in the case of Pada, this term can no longer extend beyond seventy (70) years of age. Lending support to this conclusion is the relevant proceedings of the Bicameral Conference Committee Meeting on Education, Arts and Culture on SBN 1721 and HBN 4525 (Re: Uniform State Universities and Colleges Governance Act), which later became R.A. No. 8292, to wit: xxx xxx xxx "THE CHAIRMAN (SEN. ANGARA). . . . But we are saying here that for exceptional presidents or chief executive or administrator, we are authorizing the Board to extend him, but not beyond the age 70." "REP. PADILLA. Under the Senate version, may we know what would be the number of years to constitute a term for a president? Would it be four years or six years?" "THE CHAIRMAN (SEN. ANGARA). Four years. That is under Section 6." "REP. PADILLA. Now, if it's four years, can we not just give him one extension good for four years so he may not be " "THE CHAIRMAN (SEN. ANGARA). Provided he doesn't exceed 70, age 70." "REP. PADILLA. Okay. So, in other words, when he is extended, we automatically give him a four-year extension." aDECHI "THE CHAIRMAN (REP. LACSON). Unless he goes beyond." "THE CHAIRMAN (SEN. ANGARA). Unless But in no case beyond 70." xxx xxx xxx Likewise on the second issue, in several Opinions (No. 2, s. 2004, No. 74, s. 2003, No. 60, s. 2003 and No. 1, s. 2003), we have had also the occasion to pass on the issue on term of office and re-appointment of a SUC President. Resolving the issue in the affirmative, we in part, said: "The pertinent provision of law is Section 6 of R.A. No. 8292, which reads as follows: "Section 6. The Administration. The administration of the university or college shall be vested in the president of the university or college who shall render full-time service. He shall be appointed by the Board of Regents/Trustees, upon the recommendation of a duly constituted search committee. He shall have a term of four (4) years and shall be eligible for reappointment for another term: Provided, that this provision shall not adversely affect the terms of the incumbents (Emphasis supplied). aSECAD Section 6 of R.A. No. 8292 is implemented by Section 50 of the IRR, which provides: "Section 50. Terms of Office of incumbent Presidents of chartered SUCs . The present terms of office of incumbent Presidents of chartered SUCs shall be considered as one (1) term for the purposes of this IRR. Depending upon the discretion of their GBs, they may be re-appointed for another term of four (4) years only." A statute, being the will of the legislature, should be applied in exactly the way the legislature has expressed itself clearly in the law. The clear, unambiguous and unequivocal language of a statute leaves no room for construction but only application ( Republic Flour Mills, Inc. v. Commissioner of Customs, 39 SCRA 269 [1971]). The statute in such a case must be taken exactly what it says ( Banawa v. Mirano, 97 SCRA 517 [1980]) and its literal meaning followed ( Tan Lin v. Republic, 112 Phil. 308 [1961]). 5 aSITDC Section 6 of R.A. No. 8292 clearly provides that an individual who is appointed president of the university or college by the Board of Regents/Trustees shall serve a term of four (4) years and shall be eligible for reappointment for another term of four (4) years. There is nothing in the aforequoted Section 6 which provides that the present term of office of an incumbent shall be considered as one (1) term and that he may be reappointed for another term of four (4) years only as stated in Section 50 of its IRR. The prohibition, however, only applies to appointed presidents for the first time as of the effectivity of R.A. No. 8292, or on June 6, 1997. Otherwise stated, those incumbent presidents as of June 6, 1997, may be reappointed for an additional maximum of two (2) terms or eight years, while those presidents appointed for the first time under R.A. No. 8292 shall only be eligible for reappointment for another term of four (4) years. The limitation on the eligibility of presidents for reappointment for another term of four (4) years operates prospectively and not retroactively. By providing a limitation to the eligibility of incumbents for reappointment found in Section 50 of the IRR, it violated established pronouncements that an implementing rule must not override, but instead remain consistent and in harmony with the law it seeks to apply and implement. Administrative rules and regulations are intended to carry out, neither to supplant nor to modify, the law ( Grego v. COMELEC, 274 SCRA 481 [1997]). 6 Assuming arguendo that Section 6 of R.A. No. 8292 behooves construction; the same should not be interpreted in a constricted manner as to render an incumbent president eligible for reappointment for a term of only four (4) years. It is a rule in statutory construction that when the language of a particular section of a statute admits of more than one construction, that construction which gives effect to the evident purpose and object sought to be attained by the enactment of the statute as a whole, must be followed ( Sanciagco vs. Rono , 7 On the third issue, the provision of R.A. No. 8292, insofar as pertinent, provides, to wit: Section 4. Powers and Duties of Governing Boards. The governing board shall have the following specific powers and duties in addition to its general powers of administration and the exercise of all the powers granted to the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68, otherwise known as the Corporation Code of the Philippines : . . . (Emphasis supplied) cIETHa Upon the other hand, Section 7 of its Implementing Rules and Regulations provides: Section 7. Rights and Responsibilities of GB Members . The GB members shall have all the normal rights and responsibilities of a regular member of the Board of Directors/Board of Trustees of non-profit, non-stock corporations . (Emphasis supplied) Complementary to the foregoing provisions of laws is Section 25 of the Corporation Code of the Philippines which provides: "Section 25. Corporate officers, quorum . xxx xxx xxx Directors or trustees cannot attend or vote by proxy at board meetings (Emphasis supplied). Basic is the rule that when the words and phrases of a statute are clear and unequivocal, their meaning must be determined from the language used and the statute must be taken to mean exactly what it says. 8 The rationale is because when the law is clear, there is no need for interpretation only application. 9 As such, it is our considered view that one of the responsibilities appurtenant to a GB Member is to attend and vote in person during board meetings and his representative can neither participate in the deliberations nor vote during board meetings of the Governing Board of SUCs. Very truly yours, (SGD.) RAUL M. GONZALEZ Secretary Footnotes 1. Secretary of Justice Opn. No. 14, s. 1998. 2. Ibid. 3. Id. 4. Secretary of Justice Opn. No. 17, s. 2001 5. Secretary of Justice Opn. No. 74, s. 2003. 6. Ibid. ITDHSE 7. Id. 8. Globe-Mackay Cable and Radio Corporation vs. NLRC, 206 SCRA 701, 711. 9. Pascual vs. Pascual-Bautista, 207 SCRA 561, 568.