FOR a long time now, planners and policy makers have talked about “corporatizing” state universities and colleges. That is clearly an organizational ideal, but it is more than an ideal because the provisions of Republic Act 8292, or the Higher Education Modernization Act, grant state universities and colleges “corporate powers.”
They are not, to be sure, GOCCs — government-owned and -controlled operations — as clarified in a catena of decisions by the Supreme Court. They are rather instrumentalities of national government. In defining the latter, the 1987 Administrative Code mentions “chartered institutions” that state universities and colleges clearly are.
But the corporatization of higher education institutions of state does not have to do only — not even principally — with fiscal policy. It has to do above all with one attribute that law and jurisprudence vest in instrumentalities of government: autonomy. Control freaks in government bureaucracies, of course, chafe at any mention of “autonomy,” as they shudder at the concept of “academic freedom.” But autonomy is exactly what instrumentalities of national government must enjoy to be able to meet the ends for their creation. Every instrumentality is precisely kept free of the “departmental structure” because it is entrusted with some particular mandate of State. And so, in respect to SUCs, autonomy is something that the CHEd or any other regulatory agency may or may not deign to bestow. It is something SUCs by law and by their very nature enjoy.
At present, only the University of the Philippines jealously guards its autonomy — refusing to recognize the authority of any regulatory office beyond its board of regents. And yet, no matter that the charter of the premier state university may be emphatic about its autonomy as a national state university, this brand of autonomy is no monopoly of UP. It is enjoyed by every state university and college. If that were not so, the legislative enactment of a charter creating a SUC would be utterly pointless. The law that creates a state university or college is the guarantee of that institutions accountability to Congress alone.
In respect to governance, the board of regents (or board of trustees, for colleges) exercises the same role as does a corporate board — if a corporatization is to be more than an simulacrum. It is fundamental to corporation law that the board can act only collegially, that is, by deliberation and vote of its members. In fact, members of the board cannot be represented by proxy at board meetings, because the presumption of law is that their selection as members of the board rests on their expertise, familiarity with the corporation and ownership of its mission and goals. The only reason that the House and Senate chairs of education can be represented by proxy is because the present rules allow such representation.
So too the difference between the powers of the board and the powers of the officials of the corporation must be upheld. Officers and employees of a corporation are its agents — not the members of the board, and the reason for this is that members of the board cannot and must not act singly but only as a board. In fact, strictly, consensus obtained by so-called “referenda” are not allowed, because the board must deliberate as a body and arrive at resolutions as a body. When it can be proved to the satisfaction of the demands of evidence that this has not been so, a board’s actions may be voided or vacated! By contrast, officers (in effect, university officials) govern the daily affairs of the university. Members of the board do not. They cannot. And in regard to the powers of such officials, it will be important for governing boards as well as state university officials to remember that the powers of officials are not only those expressly conferred by their charters and by Republic Act 8292, but also the juridically recognized trilogy of express, implied and incidental powers. The Corporation Code (both the pre-revised and the revised versions) curiously mention “the president,” and not the “chairman” of the board, because it is presumed that the president is also the chairman, but where, as in the case of SUCs, the chairman is the CHEd chair or a commissioner, the key person is still the president as “chief executive officer” who accounts only to the board, once more, at the risk of being repetitious, to the board as a board.
There is one other constitutional aspect of state universities and colleges in relation to which corporatization is crucial: the mandate of SUCs to respond to regional needs and its developmental concerns. This means the flexibility to draft and craft programs of study, prescribe requirements for its operations including the appointment of members of the faculty, their ranks and their promotion. In matters such as these, one size certainly does not fit all.
As in many things, it is a matter of a careful calibration of the role that the law assigns the Commission on Higher Education and the corporate and institutional autonomy of state universities and colleges. And as in all things, virtus in medio…the right will be found in the middle ground, for overreach on the part of either can be deleterious and incapacitating!