G.R. No. L-30773 - Concurring Opinion




G.R. No. L-30773, February 19, 1970, ♦ Decision, Sanchez, [J] ♦ Concurring Opinion, Castro, [J] ♦ Concurring Opinion, Fernando, [J] ♦ Concurring Opinion, Barredo, [J] EN BANC G.R. No. L-30773 February 18, 1970 FELIXBERTO C. STA. MARIA, petitioner, vs. SALVADOR P. LOPEZ, THE BOARD OF REGENTS OF THE UNIVERSITY OF THE PHILIPPINES, and NEMESIO CERALDE, respondents. V.E. del Rosario and Associates and Atienza, Tabora & del Rosario for petitioner. Office of the Solicitor General Felix V. Makasiar, Solicitor Bernardo P. Pardo and Special Counsel Perfecto V. Fernandez for respondents Salvador Lopez, et al. Crispin D. Baizas for respondent Nemesio Ceralde. Separate Opinions CASTRO, J., concurring: As the sole question posed in this case is whether the petitioner Felixberto C. Sta. Maria was removed from his position as Dean of the College of Education of the University of the Philippines, I deem it appropriate to begin this concurrence with the text of the transfer order issued by the respondent Salvador P. Lopez on July 23, 1969: . UNIVERSITY OF THE PHILIPPINES Quezon City Office of the President July 23, 1969 ADMINISTRATIVE ORDER NO. 77 TO: Dean Felixberto C. Sta. Maria College of Education SUBJECT: TRANSFER TO THE OFFICE OF THE PRESIDENT By special authority vested in me by the Board of Regents and pursuant to the Civil Service Law and the University Code, you are hereby transferred from the College of Education to the Office of the President as Special Assistant with the rank of Dean, without reduction in salary, in the interest of the service. This transfer involves your administrative position only and in no way affects your status as professor of the University. This order shall take effect immediately. (Sgd.) Salvador P. Lopez President To me the meaning of this order is unmistakable: Sta. Maria was relieved as Dean of the U.P. College of Education and was assigned to the Office of the President as a Special Assistant "with the rank of Dean." That was how the action of the respondent Lopez was understood by certain thoughtful and knowledgeable elements of the University of the Philippines.1 Now the respondents would minimize it as no more than a mere "temporary transfer" or, more accurately, a detail, which does not involve removal in the constitutional sense of the petitioner from the deanship of the College of Education. I find myself hard put to give the disputed order the meaning now ascribed to it by the respondents. In the first place, if the petitioner was not removed as dean of the College of Education, I do not see why it was necessary to invest him the "rank of Dean." Was he not already a dean of a college? To say that as Special Assistant to the University President the petitioner would have "the rank of Dean" is to say that he was not actually a Dean, in the same way that to say that one has the rank of a judge is to say, albeit impliedly, that one is not a judge — else why give him the rank of an officer which he already is?2 In the second place, the issuance of an ad interim appointment to the respondent Nemesio Ceralde as Acting Dean of the U.P. College of Education underscores the fact that the petitioner had ceased to be the dean of the college. It meant, simply, that the respondent Ceralde was appointed dean vice the petitioner. For unless the position of Dean of the College of Education was vacant there could be no appointment to it. Could it be considered vacant if the petitioner had merely been temporarily detailed to the Office of the President of the University? And finally, that the petitioner was appointed to a new position and not merely detailed thereto was confirmed by the respondent Lopez's own counsel who, at the hearing on July 29, 1969 before the Board of Regents of the University, admitted that the transfer order constituted an ad interim appointment of the petitioner as Special Assistant to the U.P. President.3 There are other overriding circumstances, already pointed out in the opinion of the Court, which completely negate the respondents' claim that the petitioner was not removed from his post but merely temporarily assigned to another office, but I think the best and final refutation of the respondents' pretense is to be found in the press statement given by the respondent Lopez himself on the same day (July 23, 1969) he issued the transfer order. The statement reads in part: After long and careful consideration, I have come to the conclusion that as President of the University I cannot permit the continued disruption of the academic life of the institution. In the interest of the service, therefore, and availing myself of the authority vested in me by law, I have issued an order transferring Dean Felixberto C. Sta. Maria of the College of Education to other duties in the University, without reduction in rank or salary, pursuant to the Civil Service Law and the University Code. ... In an effort to persuade the students to return to their classes pending negotiation of their demands, the Administration has called a series of meetings between the faculty, the students, Dean Sta. Maria and the President of the University. These meetings, however, proved fruitless in the face ,of the refusal of the College of Education students to discuss any further their demands unless and until Dean Sta. Maria resigns his position. ... [T]he complete shut-down of classes in the Diliman campus has compelled me, much to my regret, to take the decision to transfer Dean Sta. Maria to other duties. In taking this difficult decision, I was encouraged by the vote of confidence which was unanimously adopted by the faculty of the College of Education this morning, in any decision which the President might take in the best interest of the University.4 Again, in a press release issued the following day, July 25, 1969, he emphasized: I proposed to the striking students that Dean Sta. Maria be not made to resign under pressure but that he should remain in his post until the endof the semester. They turned this down. In the circumstances, I decided that the only course left open to me in order to keep the University open was to transfer Dean Sta. Maria to other duties, in the same rank and salary, as provided by the Civil Service Law and the University Code. I deeply regret that I have had to take this difficult decision, but I had nochoice. As President Truman once said,ℒαwρhi৷ "The buck stops here," and I must add, 'the U.P. is greater and more important than any man.5 These statements made right on the heels of the issuance of the disputed order, rather than the later statements of the respondent Lopez, reveal, I believe, the true nature of the petitioner's relief. They demonstrate beyond cavil that the petitioner's head was the price demanded by the striking students and that the petitioner's head was precisely and exactly the price paid in exchange for peace on the campus. For if the intended result of the action taken in this case was no more than a mere "detail" of the petitioner, then it hardly deserved the characterization as "this difficult decision" which the U.P. President "with deep regret" had to take, "encouraged" by the thought that he had the vote of confidence of the colleges faculty. It may indeed be that the position of Special Assistant to the President of the University is of a higher category than that of a college dean and that for that reason the petitioner was not demoted. But to view the matter from this angle of vision is to miss completely the point at issue, namely, that the transfer of an employee from one post in the civil service to another, if objected to by him, can be justified only if there be some cause recognized by law. Is not this what this Court meant when it ruled that the unconsented transfer of a civil service employee, no matter how well-intended, as a promotion, is "equivalent to a removal," and, if made without prior hearing, is violativeof the Constitution?6 As this Court noted: But in justice to the President and the Commission on Appointments, let it be stated once again that it would seem that the transfer of the petitioner to Tarlac was not meant and intended as a punishment, a disciplinary measure or demotion. It was really a promotion, at least at the time the appointment was made. Only, that later, due to a change in the category of Oriental Negros as a province, the transfer was no longer a promotion in salary. And yet the respondent and the Solicitor General insisted on the transfer despite the refusal of the petitioner to accept his new appointment.7 The rule in Lacson is now embodied in statute: [A] transfer from one position to another without reduction in rank or salary shall not be considered disciplinary when made in the interest of public service, in which case the employee concerned shall be informed of the reasons therefor.+3u.7!ydmb7 If the employee believes that there is no justification for the transfer, he may appeal his case to the Commission on Civil Service through the Department Head. Pending appeal and decision thereof, his transfer shall be held in abeyance. ...8 This statutory provision reflects the view that because by nature a transfer (as distinguished from a mere detail) involves a removal from one position and an appointment to another, there must first be a hearing. And so, while the respondents Lopez and U.P. Board of Regents might not be expected to follow the precise procedure for transfer as outlined in the amendment to the statute, since this did not take effect until August 4, 1969 (a few days after the petitioner's relief), -they were, to my mind, nevertheless bound toobserve those "canons of decency and fairness"9 of which the due process clause is the "summarized constitutional guarantee of respect."10 And due process of law requires at the very least that there be notice and hearing,11 lest the summary transfer of a civil service employee offend "a sense of justice."12 Is to uphold the petitioner's right to a hearing to overlook the larger interests of society, to exalt the individual at the expense of the community? Is it, nineteenth-century bourgeois thinking, so wanting in relevance as to be regarded as outmoded or obsolete in an age of mass demonstrations and confrontations? The respondent Lopez justifies his action in terms of what he conceives to be the interest of the community that is the University which had been completely shut down by student boycott. As he stressed, "the U.P. is greater and more important than any man." But the respect due the integrity of the individual is by no means antithetical to the interests of society. On the contrary, one reinforces the other, as the philosopher Reinhold Niebuhr has so beautifully brought out in his book, "The Children of Light and the Children of Darkness."13 While bourgeois democracy, with its enshrining of the individual at the center stage of society, has now generally been replaced by a new social consciousness, its emphasis on liberty nevertheless contains an element of validity that transcends its excessive individualism.14 Perhaps it would be closer to the truth to say that the community requires liberty as much as does the individual and the individual requires community more than bourgeois thought comprehended.15 As Dr. Niebuhr explains: The man who searches after both meaning and fulfillments beyond the ambiguous fulfillments and frustrations of history exists in a height of spirit which no historical process can completely contain. This height is not irrelevant to the life of the community, because new richness and a higher possibility of justice come to the community from this height of awareness. But the height is destroyed by any community which seeks prematurely to cut off this pinnacle of individuality in the interest of the community's peace and order.16 And what was the community interest involved here? If it was that of the community of students who massed in front of the University administration building, then it was obviously in their interest that the strike continued until the respondent Lopez yielded to their demand. If, on the other hand, it was that of the community of students who very much wanted to attend classes but were prevented from doing so, or that of the community of professors and other scholars who could not get inside the classrooms because they were barred by the demonstrating students, then the protection of their rights is to be found in some solution of a police character and not in the summary removal of the petitioner. The issue would always thus narrow down to the vindication of a principle: the rational solution of any controversy. Of more than passing relevance are these sentiments17 articulated by Dr. Sidney Hook of the Department of Philosophy of the New York University, a thoughtful commentator on the contemporary university scene: "Due process in the academic community is reliant upon the process of nationality it cannot bethe same as due process in the political community as far as the mechanisms of determining the outcome of rational activity. For what controls the nature anddirection of due process in the academic community is derived from its educational goal — the effective pursuit, discovery, publication, and teachingof the truth. In the political community all men are equal as citizens not only as participants in, and contributors to, the political process, but as voters and decision-makers on the primary level. Not so in the academic community. What qualifies a man to enjoy equal human or political rights does not qualify him to teach equally with others or even to study equally on every level. There is an authoritative, not authoritarian, aspect of the process of teaching and learning that depends not upon the person or power of the teacher, but upon the authority of his knowledge, the cogency of his method,. the scope and depth of his experience. But whatever the differences in the power of making decisions flowing from legitimate differences in educational authority, there is an equality of learners, whether of teachers or students, in the rational processes by which knowledge is won, methods developed, and experience enriched." And on the rule of reason in a liberal educational regimen, Professor Hook gives us pause with his incisive observations: "In a liberal educational regimen, everything is subject to the rule of reason, and all are equals as questioners and participants. Whoever interferes with academic due process either by violence or threat of violence places himself outside the academic community, and incurs the sanctions appropriate to the gravity of his offensesfrom censure to suspension to expulsion. The peculiar deficiency of the ritualistic liberal educational establishments is the failure to meet violations of rational due process with appropriate sanctions or to meet them in a timely and intelligent manner. There is a tendency to close an eye to expressions of lawless behavior on the part of students who, in the name of freedom, deprive their fellow students of the freedom to pursue their fell studies. It is as if the liberal administration sought to appease the challenge to its continued existence by treating such incidents as if they had never happened. ... There is no panacea that can be applied to all situations. It is not a question of a hard line or a soft line, but of an intelligent line. It is easy to give advice from hindsight, to be wise and cocksure after the event. But it is always helpful for the faculty to promulgate in advance fair guidelines for action, so that students will know what to expect. In general, no negotiations should be conducted under the threat of coercion, or when administrators or faculty are held captive." Footnotes 1 This view was shared by the newspapers and columnists. E.g., "Editoryal," Taliba, July 27, 1969, p. 4; "UP Dean Stirs Controversy," Manila Chronicle, July 26, 1969, p. 4, col. 2; Soc Rodrigo, "Kuro-Kuro," Taliba, July 26, 1969; Valencia, "Over a Cup of Coffee," Manila Times, July 25, 1969, pp. 4-A. 7-A, col. 1; id., July 26, 1969, p. 4-A, col. 1; Balein "Another One," Manila Chronicle, July 26, 1969, p. 8, col. 1. 2 Cf. Noblejas v. Teehankee, L-28790, April 29, 1968, 23 SCRA 405. 3 Minutes of the 785th meeting of the U.P. Board of Regents, July 29, 1969, annex 21 of the respondents' answer. 4 Appendix A-3 to annex 18 of the respondents' answer. 5 Appendix A-4 to annex 18 of the respondents' answer. 6 Lacson v. Romero, 84 Phil. 740, 745-46 (1949). 7 Id., at 755. 8 Civil Service Act of 1959, sec. 32, as amended by Rep. Act 6040, sec. 11, effective Aug. 4, 1969. 9 Malinski v. New York, 324 U.S. 401, 417 (1945) (Frankfurter, J., concurring). 10 Rochin v. California, 342 U.S. 165, 169 (1952). 11 E.g., Gray v. De Vera, L-23966, May 22, 1969, 28 SCRA 268; Twining v. New Jersey, 211 U.S. 78 (1908). 12 See Rochin v. California, supra, note 10 -at 173; Brown v. Mississippi, 297 U.S. 278, 285-6 (1936). 12 See Roching v. California, supra, note to 10 at 173; Brown v. Mississipi, 279 U.S. 278,285-6 (1936). 13 A gifted scholar of American constitutional law, who himself is the author of an influential classic, On Understanding the Supreme Court (1949), considers Niebuhr's little volume more valuable for education than "many books may times its size written by constitutional lawyers about 'understanding the Supreme Court." ' P.A. Freund, Comment, Judicial Method in Due Process Inquiry, in Government Under Law 355, 358 (A. Sutherland ed. 1956). 14 Niebuhr, The Children of Light and the Children of Darkness 3 (1944). 15 Id., at 3. 16 Id., at 85-86. 17 "Who Is Responsible For Campus Violence?", Atlantic Magazine, February 1969, p. 45; Newsweek, May 12, 1969, p. 71; see also pp. 24 and 29 of Memorandum for the Petitioner. The Lawphil Project - Arellano Law Foundation