Defense Secretary Delfin Lorenzana said Wednesday that he is open to a dialogue with the management of the University of the Philippines (UP) to discuss the unilateral abrogation of the UP-Department of National Defense (DND) Accord of 1989 if they will be able to explain the deaths of their students during armed encounters between the military and the New People's Army (NPA).
"Yes, I am open to dialogue with them," Lorenzana said in a press briefing held at the DND building in Quezon City.
He presented a list containing the profiles of 28 alleged UP students who supposedly became members of the NPA. Of these, 17 died from 1975 to 2020, four were captured, while the rest are still being monitored by the military.
Lorenzana said he appreciates the intercession of "well-meaning people" like the members of the Senate who passed a resolution asking for a dialogue, as well as presidential spokesperson Harry Roque who offered his office for a meeting between him and UP President Danilo Concepcion.
"I'm willing to talk to him (UP President Concepcion) pero sagutin muna nila kung bakit namatay itong mga tao na ito na kasama ng NPA (but they should explain first why these people died while being accompanied by the NPA)," Lorenzana said.
The Defense chief demanded the UP management to explain to the public why they "failed to protect" their students who were supposedly recruited into the underground movement.
"(E)xplain to me bakit nangyari ito sa kanila (Why did this happen to them), why they failed to protect these young kids in joining these organizations and they get killed? As a parent, I really feel sad for these kids na mamatay sila ng ganito (that they died in this manner). So explain nila 'yan (they should explain this)," Lorenzana said. "If they can explain that, we will talk. If not, then forget it."
The termination of the accord drew mixed reactions from the public, with some saying that it was a move to suppress academic freedom while others favored it to end the 50-decade-old insurgency problem in the country.
But Major Gen. Edgard Arevalo, spokesperson of the Armed Forces of the Philippines (AFP), presented three arguments to answer the issues hounding the unilateral abrogation of the UP-DND Accord of 1989.
UNILATERAL ABROGATION
The termination of the accord, which prohibits State forces from entering UP campuses nationwide without prior coordination, raises questions from lawmakers, academe, legal experts, and other stakeholders. Among the issues asked is if the DND can unilaterally abrogate the pact.
Arevalo said the DND can do so because the agreement has already been voided "by the passage of time."
"The abrogation of the agreement by the Secretary of National Defense, even if he did that unilaterally, is not in violation of any provision of any contract or any agreement," Arevalo said.
He explained that the agreement was signed in 1989 but the passage of the Philippine National Police (PNP) Law in 1991 caused a "substantial change" in the parties to the contract.
He said that when the agreement was signed in 1989, it was signed by the Secretary of National Defense who has under his power the Armed Forces of the Philippines. At the time, the AFP was comprised of the Philippine Army, Philippine Air Force, Philippine Navy, and the Philippine Constabulary-Integrated National Police, the predecessor of the present-day Philippine National Police (PNP).
Arevalo said that the creation of the PNP Law as an individual law enforcement agency from the AFP practically removed them from the agreement.
"So therefore, this agreement is void in so far as the PNP is concerned. There has been a substantial change in the parties to the contract. Therefore, since 1991, this agreement has been voided by the substantial difference in the parties to the contract," he said.
Arevalo called this the doctrine of fundamental change in the composition or circumstances of the parties.
RULES OF COURT
Further, Arevalo said the agreement has already become "enimical to public interest" as law enforcers need to ask permission from the UP management before they can conduct arrests or searches inside its campuses.
"This means that we are depriving the public their right, be ensured to be safe. Paano na lamang po kung merong shabu laboratory for instance sa loob ng University of the Philippines community or campus and then mayroon po tayong valid arrest warrant at search warrant? Ang hinihingi po ng agreement na ito ay kailangan dadaan muna tayo sa UP administration upang ipaalam bago tayo magsearch (What if there is a shabu (methampetamine hydrochloride) laboratory inside the University of the Philippines community or campus and we have a valid arrest warrant and search warrant? The agreement requires us to ask permission from the UP administration before we can conduct the search)," he said.
Arevalo said the agreement violates the Rules of Court since there is no provision in the law which says that there is another step that law enforcers should take before they could implement a valid arrest and a valid search warrant.
"Therefore this is contrary to public policy," he noted.
ALTER EGO OF PRESIDENT
Arevalo said the doctrine of qualified political agency also justifies the abrogation of the agreement, explaining that the Secretary of National Defense's actions are perceived as the actions of the President.
"Under that doctrine, ang isang Secretary ay alter ego ng isang Pangulo (A Secretary is an alter ego of a President)," he said.
"Now that the incumbent Secretary of National Defense has revoked it and it was agreed upon by no less than the President of the Republic, then that makes the act of the Secretary of National Defense – now Secretary Lorenzana – valid, legal, and binding," Arevalo said.