ABS-CBN DZMM Teleradyo texted to request for an interview on my “insights” while Defense Secretary Delfin Lorenzana was giving a live media briefing on the unilateral abrogation of the UP-DND Accord a few hours ago; i was indisposed and was not able to see the text until a few minutes ago. (i sent my apologies to the news producer, apologies again here.). I viewed the media briefing on Youtube 15 minutes ago. Here’s the legal advice to any of the parties concerned:
1.The Defense Secretary said that UP can hold as many rallies as it wants and rallyists “can shout to the high heavens” and will not be disturbed: Perhaps the parties can proceed from this, and again write out terms that can be agreed upon, reiterating this. It is a good starting point. I hope the parties can answer each others phone calls for purposes of sitting down again.
2.The Defense Secretary and the other officers said that the Accord cannot be followed because they should be able to serve search warrants and arrest warrants anywhere anytime. My legal advice to the parties: Search warrants are usually of dwellings and houses. Search warrants of dwellings and houses inside Barangay U.P. Campus have been served before. The Accord does not pose a problem as such. Regarding possible search warrants of academic buildings, administrative buildings, and other U.P. facilities: There have been no such search warrants of this nature (covering academic buildings etc), and this would probably be hypothetical; but to make the procedure clearer, the parties can perhaps sit down and discuss this. Regarding warrants of arrest if in the name of a U.P. student on campus: If the person to be arrested is a U.P. student and the student is presently on campus, literally, physically on campus, we would like to discuss with Secretary Lorenzana on how to proceed, administrators and faculty members have the duty, under the principle of in loco parentis, to care for the students entrusted to them, and in their custody … Let’s sit down, pag-usapan po natin ito. Regarding arrest warrants in the name of faculty members and staff who are presently on campus: In my opinion, as long as the warrants of arrest are not based on acts within the mantle of academic freedom, such warrants may be served observing the requirements of the Constitution and the Rules of Court.
3.Secretary Lorenzana at the very beginning, in reply to the first question posed by a reporter as to whether he was still willing to sit down in a conversation with members of the University, said that he would only be willing to do so if the University can explain why certain U.P. students or former U.P. students (then he held up a folder with photos and names) died in an armed encounter with the military. This, according to him, is the principal reason why he abrogated the UP-DND Accord. The statement seems to be a rhetorical question (other people may post their answer to this rhetorical question if they want to); for purposes of the University officials being able to sit down with the DND, I will not publicly answer the rhetorical question. But the organizations and persons concerned may speak out and discuss this substantially .
4.Regarding the legal opinion expounded by the AFP spokesperson that the Accord can be abrogated etc etc with a discussion of the legal basis such as “rebus sic stantibus” , “against public policy” etc: My legal advice to the parties: The Accord is not a civil law contract and its enforceability is not based on any kind of court order on specific performance. It is based on the good faith and goodwill of the parties. With this, i hope that the time and place can be found to sit down, break bread, and talk. We have plenty of time and enough space for this purpose po.