SOPHIA ALCUAZ, MA. CECILIA ALIN­DAYU, BERNADETTE ANG, IRNA ANONAS, MA. REMEDIOS BALTAZAR, CORAZON BUNDOC, JOHN CARMONA, ANNA SHEILA DINOSO, RAFAEL ENCARNACION, ANNALIZA EVIDENTE…

CONCURRING AND DISSENTING OPINION

CORTES, J.:

I concur with the majority insofar as it disposes of the motion
for reconsideration filed by the teachers, in view of the decision of the Court
in Escudero v. Office of
the President, G.R. No. 57822, April 26, 1989,
which recognized and applied the three-year probationary period for teachers as
provided in the Manual of Regulations for Private Schools.

However, I find that the majority has failed to fully appreciate
the nature of the relation between the student and his school and to rectify
the doctrinal error in the decision. The public interest attached to education,
owing to the Constitution’s express mandate for the State to protect and
promote the right of all citizens to quality education and to exercise
reasonable supervision and regulation over all educational institutions [Art.
XIV, Secs. 1 and 4(1)], prevents one from viewing the relation between the
student and the school as a simple contract with a term of one semester. By its nature, the “contract”
cannot be terminated by the school on the ground of expiration of the term,
i.e., the end of the semester for which the student is enrolled.

The majority acknowledges by way of obiter dictum,
after the damage to the students has been
done, that “We value the right of students to complete their education in
the school or university of their choice . . .” However, this expression
of sentiment does not effect the necessary reversal of the law of the case as
far as the students are concerned. As
stated earlier, neither does it reverse the erroneous doctrine enunciated in
the decision.

I also find it necessary to bring to mind, as Mr. Justice
Sarmiento has done, that we had already recognized, in the landmark case of Malabanan
v. Ramento, G.R. No. 62270, May 21, 1984, 129 SCRA 359, the right
of students to peaceably assemble
within the premises of their school
and to air their grievances on matters that affect their education, subject to
reasonable limitations as to time and place. And even the recognition of the right to assembly is nothing new, having
been in our casebooks since the turn of the century. Malabanan also told us that the school is not
entirely without power to discipline students for misconduct in the course of the exercise of these
rights. If there be any infractions of
reasonable rules established by the school or agreed upon by the school and the
students, the school may discipline the erring students, but the penalty must
be commensurate to the violation. Hence, in Malabanan, the penalty of suspension of one year
imposed on those who led the rally that resulted in the disruption of classes
because of the noise was reduced to suspension for one week. I am of
the view that the majority’s disposition of the present case, as to the
students, which sanctioned the school’s stand of refusing to allow re-enrolment
of some of the students under the guise of expiration of contract and,
subsequently “academic deficiency,” goes against the very grain of
the rule that the Court, sitting en banc, had established in Malabanan
that while the authority of the schools over the conduct of their students is
recognized, it cannot go so far as to be violative of constitutional
safeguards.

DISSENTING OPINION

CRUZ, J.:

Like Mr. Justice Sarmiento, I am also disturbed by the ruling of
the majority sustaining the disciplinary action taken against the students for
what I consider a valid exercise
of their freedom of expression. The circumstance
that the demonstrations were attended by some disorder is not in my view sufficient
justification for the curtailment of their right, much less for their
punishment. And I do not agree either
that the sanctions may be sustained because some of the students were
academically deficient, for the
truth is that they were denied re-enrollment not because of such deficiency but
because of the demonstrations. Surely,
freedom of expression is not only for the intelligent.

I also have my misgivings about the ruling of the Court that a
student’s enrollment is from semester to semester and may be terminated at will
by the school after each period. I
submit that when a student is enrolled for a particular course, the implicit understanding is that he is entitled
to remain in the school until he graduates, subject only to the usual academic,
financial and other reasonable requirements.

For these reasons, I must also dissent.

DISSENTING OPINION

SARMIENTO, J.:

I reiterate in the strongest terms possible, my dissent in the Decision of May 2, 1988.  Let it also be attached and incorporated by
reference hereto.

In my opinion, the majority has ignored, by inadvertence or
design, the constitutional underpinnings supporting the case.

I also hold as untenable, sarcastic, and condescending what would
come down, to all intents and purposes, as the disposition of the motion for
reconsideration:

In conclusion, We wish to
reiterate that while We value the right of students to complete their education
in the school or university of their choice, and while We fully respect their
right to resort to rallies and
demonstrations for the redress
of their grievances and as a part of their freedom of speech and their right to
assemble, still such rallies, demonstrations, and assemblies must always be
conducted peacefully, and without resort to intimidation, coer­cion, or
violence.  Academic freedom in all its
forms, demands the full display of discipline. 
To hold otherwise would be to subvert freedom into degenerate license.^[1]

The question, precisely, is whether or not the “rallies,
demonstrations, and assemblies”^[2]
had been conducted with
“resort to intimidation, coercion, or violence.”^[3]
The majority would have it, so it appears from the Resolution and so I would
make it out therefrom, that the fact alone that the petitioning students had held the questioned gathering
en masse, they, ergo, had been guilty of “intimidation, coercion, or
violence.”^[4]
In my brethren’s disposition of May 2,
1988, reference was-made on alleged “noisy
demonstrations”^[5]
— but that was all.  There was no
mention, indeed, any evidence, of “intimidation, coercion, or violence”^[6]
that would warrant a judicial rebuke.

In my dissent (on the main Decision), I alluded to two cases,
both landmark in character:  Malabanan v. Ramento^[7]
and U.S. vs.
Apurado.^[8]
I turn to Ramento:

x x x If in the course of such demonstration with an enthusiastic
audience goading them on, utterances, extremely critical, at times even
vitriolic, were let loose, that is quite understandable.  Student leaders are hardly the timid,
diffident-types.  They would be
ineffective if during a rally they speak in the guarded and judicious language
of the academe.  At any rate, even a
sympathetic audience is not
disposed to accord full credence to their fiery exhortations.  They take into account the excitement of the
occasion, the propensity of speakers to exaggerate, the exuberance of youth.  They may give the speakers the benefit of
their applause, but with the activity taking place in the school premises and
during the daytime, no clear and present danger of public disorder is
discernible.^[9]

I also advert to Apurado:

It is rather expected that more or less disorder will mark the
public assembly of the people to protest against grievances whether real or
imaginary, because on such occasions feeling is always wrought to a high pitch
of excitement, and the greater the grievance and the more intense the feeling,
the less perfect, as a rule, will be the disciplinary control of the leaders
over their irresponsible followers.  But
if the prosecution be permitted to seize upon every instance of such disorderly
conduct by individual members of a crowd as an excuse to characterize the assembly
as seditious and tumultuous rising against the authorities, then the right to
assemble and to petition for redress of grievances would become a delusion and
a snare and the attempt to exercise it on the most righteous occasion and in
the most peaceable manner would expose all those who took part therein to the
severest and most unmerited punishment, if the purposes which they sought to
attain did not happen to be pleasing to the prosecuting authorities.  If instances of disorderly conduct occur on such
occasions, the guilty individuals should be sought out and punished therefor,
but the utmost discretion must be exercised in drawing the line between
disorderly and seditious conduct and between an essentially peaceable assembly
and a tumultuous uprising.^[10]

The foregoing are principles well-entrenched in the annals of
Philippine jurisprudence.  The instant
Resolution, and much to my regret, undoes all that.

It also undoes what Ramento has so eloquently written:

8.  It does not follow,
however, that petitioners can be totally absolved for the events that
transpired.  Admittedly, there was a
violation of the terms of the permit. 
The rally was held at a place other than that specified, in the second
floor lobby, rather than the basketball court, of the VMAS building of the
University.  Moreover, it was continued
longer than the period allowed.  According to the decision of respondent Ramento, the
“concerted activity [referring to such assembly] went on until 5:30 p.m.“ Private respondents could thus, take disciplinary
action.  On those facts, however, an
admonition, even a censure — certainly not a suspension — could be the
appropriate penalty.  Private respondents
could and did take umbrage at the fact that in view of such infraction —
considering the places where and the time when the demonstration took place —
there was a disruption of the classes and stoppage of work of the non-academic
personnel.  They would not be unjustified
then if they did take a much more serious view of the matter.  Even then a one-year period of suspension is
much too severe.  While the discretion of
both respondent University and respondent Ramento is
recognized, the rule of reason, the dictate of fairness calls for a much lesser
penalty.  If the concept of
proportionality between the offense committed and the sanction imposed is not
followed, an element of arbitrariness intrudes. 
That would give rise to a due process question.  To avoid this constitutional objection, it is
the holding of this Court that a one-week suspension would be punishment
enough.^[11]

I find disturbing, finally, the indifference, if carelessness, at
how my colleagues would so gruffly dispose of the intervenors’ case.  It is true that under the Manual of
Regulations for Private Schools instructors enjoy a three-year probation, upon
completion of which, they acquire a security of tenure, for which they may not
be – removed unless for just cause.  In
the case of the intervenor, Asser Tamayo, the majority admits that he has completed
three and one-half years, and therefore, has acquired permanency in office.  The
catch, however, is that:

However, because the investigation showed that Mr. Tamayo had
participated in the unlawful demonstration, his services cannot be deemed
satisfactory.^[12]

What is plain is that we are here depriving a citizen of what, in
all probability, is his sole bread and butter. 
What is also clear is that we are depriving him-of livelihood because he
“had participated in the unlawful [?] demonstration.”^[13]
What is evident to me, finally,
is that by a stroke of the pen, we would have, in all likelihood, punished him
for exercising his constitutional right of free expression and peaceable
assembly.

As I indicated, I agree that probation lasts three years, under
the Manual of Regulations for Private Schools. 
I do not agree, however, that during that period, schools are free to
fire probationers and hire replacements, unless for cause.  It is only upon the expiration of the period
that the college is at liberty to determine appointing them or looking elsewhere
to fill the job.^[14]

Apparently, these are the straits in which
instructor-petitioner-Rene (Rafael) Encarnacion and intervenor Severino Cortes,
Jr. had found themselves.  I hold,
accordingly, that they are entitled to reinstatement barring the
existence of just causes.  And I find
none here.

Accordingly, I vote to grant reconsideration.

^[1]
Alcuaz, et al. v. PSBA Q.C., 3-4.

^[2]
Supra, 3.

^[3]
Supra, 4.

^[4]
Supra.

^[5]
Alcuaz, et al. v. PSBA Q.C., G.R. No. 76353, May 2, 1988, 14.

^[6]
Alcuaz, et al. v. PSBA Q.C., supra, 4.

^[7]
No. 62270, May 21, 1984, 129 SCRA 359.

^[8]
7 Phil. 422 (1907).

^[9]
Malabanan v. Ramento, supra, 369.

^[10]
U.S. v. Apurado, supra, 426.

^[11]
Malabanan v. Ramento, supra, 371.

^[12]
Alcuaz, supra, 3.

^[13]
Supra.

^[14]
See Biboso v. Victorias
Milling Company, Inc., No. L-44360, March 31, 1977, 76 SCRA 250.