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Military claims UP-DND accord 'voided by passage of time'

The military claimed on Wednesday, January 20, that the 1989 UP-DND accord "has been voided by the passage of time" because of a "substantial change" in the parties to the agreement.

"The fact is the agreement has been voided by the passage of time," Armed Forces of the Philippines (AFP) Spokesperson Major General Edgard Arevalo said in a press conference alongside Defense Secretary Delfin Lorenzana on Wednesday.

Lorenzana unilaterally terminated the 1989 UP-DND accord, which used to require soldiers and cops to give prior notice to the university administration before entering the premises. The accord addressed the problem of activists being arrested inside campus, and has, through time, provided a safe space for protests without risking arrests and violent dispersals.

Arevalo, a lawyer, invoked rebus sic stantibus or the inapplicability of contracts because of fundamental change of circumstances. It is the latest addition to the Duterte administration's list of Latin doctrines when justifying questionable legal actions. (PODCAST: Law of Duterte Land: War on the Law Part 1)

Arevalo explained that when then-defense secretary Fidel V. Ramos signed the accord, he did so on behalf of the units under the Department of the National Defense (DND) at the time – the AFP and the Philippine Constabulary.

In 1990, the Corazon Aquino administration signed Republic Act No. 6975 which established the Philippine National Police (PNP) and placed it under the Department of the Interior and Local Government (DILG).

"It removed the PNP from the agreement, so therefore this agreement is void insofar as the PNP is concerned and there has been a substantial change to the parties in the contract. So therefore since 1990, this agreement has been voided by the substantial differences in the parties to the contract, that is under the doctrine of rebus sic stantibus," Arevalo said.

Is the doctrine valid?

UP law professor Ted Te, former Supreme Court spokesperson, said the closest application of rebus sic stantibus in Philippine laws is Civil Code Article 1267 which says, "When the service has become so difficult as to be manifestly beyond the contemplation of the parties, the obligor may also be released therefrom, in whole or in part."

Citing the Supreme Court case PNCC vs Court of Appeals, Te said "it is only in absolutely exceptional changes of circumstances that equity demands assistance for the debtor."

"The question is what has become so difficult to comply with as far as the Soto-Enrile Accord is concerned such that equity would need to step in? Also what are the legal remedies available to the parties assuming such difficulty exists? Equity steps in only where law fails to provide a remedy," Te told Rappler.

National Union of Peoples' Lawyers (NUPL) president Edre Olalia said the defense department should have first established the change in circumstance in an independent process.

"The other equally weighty, if not more decisive, principle of pacta sunt servanda (agreements must be kept) must be fully respected and honored," said Olalia, who also represented student activist Donato Continente, whose arrest in UP Diliman in 1989 prompted the accord. 

"Given the historical and political basis of the Agreement, the invocation of rebus sic stantibus is not on all fours with the situation and its applicability may be a disingenuous justification if not another novel reading of basic principles of law," Olalia added.

Asked to comment on the legal principle, Justice Secretary Menardo Guevarra begged off, saying that the issue could be brought to the Department of Justice (DOJ).

Venue for legal challenge

According to Guevarra, a legal challenge to the unilateral termination can be resolved through an administrative adjudication by his office.

If this happens, Guevarra said he will designate a panel. "If any party goes to court directly, it may be dismissed for failure to exhaust administrative remedies," said Guevarra.

The UP-DND accord does not provide for an exit clause, but Arevalo insisted that Lorenzana's act as defense secretary is "valid, legal and binding," and that terminating the accord is favorable to public policy.

Arevalo said during the press conference that if they were to discover a shabu lab inside UP, for example, law enforcement can serve search and arrest warrants without going through the hassle of informing the school administrators first.

"It can be argued that the Department of National Defense could legally terminate the open-ended UP- DND agreement," said Integrated Bar of the Philippines national president Domingo "Egon" Cayosa, a UP alumnus, in a statement on Wednesday, without specifically citing legal reasons.

Cayosa added, however, that "it would have been more ideal" if there was prior consultation with UP.

"It would have been more ideal and in keeping with statesmanship, mutual respect, and courtesy that consultation and dialogue between the two parties, both of which are government institutions, were held to possibly resolve issues and seek solutions before any unilateral abrogation," said Cayosa.

Lorenzana said on Wednesday that he's willing to talk to UP on reconsidering the termination of the agreement only if the university can explain deaths of its students in skirmishes with the military.

Lorenzana has accused UP of being a "safe haven" for communist rebels, without citing evidence. – Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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