BY JOSEPH NOEL M. ESTRADA
A tragic incident, yet again, involving a school which happened on February 20,2017 when a bus carrying students on a field trip in Tanay, Rizal rammed at a post claiming the lives of fifteen people including students and other members of the academic community.
This is not the first time. And whenever similar incidents happen we often hear people talk about how unnecessary field trips are in one’s education and how it burdens the parents for unreasonable fees. Some would claim that field trips are forced upon students and are made compulsory.
Then people start talking about waivers and how these are illegal on the part of the school, and that it is invalid as against the parents and students who signed.
Then schools are blamed for failing to protect the students and how they were unnecessarily exposed to risks. Then of course, the bus company contracted by the school including the driver, get the share of the blame for failing to maintain the bus in good condition or failing to hire a driver fit for the job. Lastly, the government education agencies are blamed for either failing to stop the schools from implementing a field trip in its curriculum or for failing to regulate such activity.
But the buck doesn’t stop there.
As always CHEd would pass the onus back to the HEIs by calling on a nationwide moratorium on field trips.
Moratorium is a loose term for a call for suspension, a freeze or injunction order.
So the CHED issued the Memorandum dated February 21, 2017, imposing a moratorium on all field trips and similar activities in all public and private HEIs effective immediately. It effectively halts all field trips, educational tours and similar activities off-campus in all 1,953 HEIs in the country with four million college students.
What is the authority of the CHED to issue such a moratorium? Injunctive power is a judicial function that belongs to the court unless such power is granted by law to an administrative body. But nothing in RA 7722 mentions about CHED’s injunctive authority that authorizes it to issue a suspension or freeze order. In fact, CHED is not even an agency that performs judicial or quasi-judicial power.
Even assuming CHED has the authority to issue injunctions like the courts, but even courts observe due process, hear and determine whether there is a necessity to stop an activity before a final judgment on an issue. In the case of CHED, it arbitrarily imposed a moratorium to all HEIs effectively on the date of the issuance of the Memorandum.
Who will pay for the cancelled flights, cancelled venue bookings (hotels, Retreat houses, convention centers, etc.) of students who are scheduled for their educational tours?
What about the right of HEIs and students against non-impairment of obligations and contracts?
What about the right to due process of all HEIs?
What about the academic freedom of HEIs which includes the freedom to determine “how it shall be taught”?
With the Memorandum of the Chairperson, even compliant HEIs who have long scheduled their educational tours and activities off-campus are adversely affected.
How this moratorium helps in addressing the recurring problem of off-campus accidents is not very clear.
Is a waiver valid? According to the New Civil Code, waivers are valid except when it is executed against the law, public policy/order, morals, and good customs.
Determining the validity of waivers is, again, the function of the courts, not of CHEd.
Waivers are founded on the legal doctrine volenti non fit injuria, a Latin maxim which means “to the willing, no injury.”
As a contract, the waiver is the law between the parties. For a waiver to be enforceable, the student and parents should know all inherent risks involved; the waiver should be worded clearly; and there should be no coercion or pressure in signing.
Schools are not experts in transportation. It has no in-depth knowledge whether a bus is in good condition and relies on franchises and licenses of transport companies it contracts out. These licenses should enjoy the public’s trust and confidence.
Field trips and educational tours while necessary in supplementing classroom learning, it should not be made compulsory to students. The school should provide alternative activities where the same learning objective may be achieved by the students if conducted in-campus.
Parents should exercise caution, discretion, and wise judgement before consenting or agreeing to off-campus activities.
Let us continue to pray for those who perished in the latest tragedy involving students and hope for speedy recovery of those injured, as well as the enlightenment of CHEd.
Atty. Joseph Noel M. Estrada is a practicing lawyer who specializes in education law. He represents educational institutions and associations which include the Coordinating Council of Private Educational Associations, Catholic Educational Association of the Philippines, Philippine Association of Private Schools, Colleges, and Universities, and the PAASCU. His views on this article does not necessarily reflect the views of the associations and institutions he represents.