ACADEMIC FREEDOM VS.

QUALITY ASSURANCE
IN PHILIPPINE HIGHER EDUCATION:
Examining the Constitutionality of CHED Memorandum Order No. 46

A Thesis Presented to the

ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW

In Partial Fulfillment of the Requirements

of the Degree of Juris Doctor

ZHANIKA MARIE O. CARBONELL

2015
ABSTRACT

Education is an important public function of the State. It is part of the National

Governments responsibilities and should be given highest priority by the State. It should be
emphasized that the policy of the State is not just to promote education, but quality education.
This, even so, is not a guarantee. According to the framers of the 1987 Constitution, it is a mere
aspiration, but not a direct mandate. With all these policies in mind, the Commission on Higher
Education was formed by the enactment of its charter, the Higher Education Act. CHEDs focus
is for tertiary and graduate education, which includes colleges, universities and professional
schools
Last December 11, 2012, the Commission passed CHED Memorandum Order No. 46,
which establishes a Quality Assurance Framework through Typology-Based and OutcomesBased methods. CHED, in enacting CMO No. 46, had the ASEAN Community Integration in 2015
in mind wherein the member states of the ASEAN community will essentially become a united
region. The Commission seeks to improve the quality of our higher education in a way that is
competitive and compliant with international standards. Quality Assurance would mean
establishing the standards against which to evaluate quality. In this regard, CHED would be
setting mechanisms, procedures and processes in order to guarantee that the desired level of
quality would be attained.
It is argued that CHED Memorandum Order No. 46 is in contravention of the 1987
Constitution. The legal issue being assailed in CMO No. 46 is that it violates academic freedom.
The Memorandum Order allegedly unlawfully gives CHED the power to dictate what the schools
curriculum should be, who can teach and who cannot as well as the ability to shut down any
higher education institution who, according to CHED, does not live up to the standard of quality
asked of them. This thesis aims to weigh the balance between CMO No. 46 and the concept of
academic freedom as enshrined in the 1987 Constitution.
In the 1987 Philippine Constitution, it is stated that, academic freedom shall be enjoyed
in all institutions of higher learning. This guarantee of academic freedom particularly grants
educational institutions the right to decide what should be taught, how it should be taught, who
should teach and who should be taught. Universities, to be truly effective, should be autonomous
and free. Thus, academic freedom can be said to be a condition to their existence. However,
like all other rights, academic freedom is not absolute and cannot be asserted unqualifiedly.
Academic freedom can also be validly limited by the governments legitimate exercise of police
power. Be that as it may, this does not give the State license to substitute its judgment for that of
educational institutions when they have acted within the scope of their authority. Thus, any
measure of regulation should be considered as reasonable.
Though it may seem that the Higher Education Act grants the Commission broad powers,
all these are subject to the Guarantee of Academic Freedom. This guarantee ensures that the
Commission may not perform any act, which can be interpreted as limiting the academic freedom
of higher education institutions. Thus, the powers and functions of the Commission on Higher
Education must always be construed in the light of the constitutional mandate of academic
freedom.
In short, the basic law or the Higher Education Act and the law of the land, the 1987
Constitution, prevails. Memorandum orders made by CHED, cannot go beyond the terms and
provisions of its charter. While the Commissions rationale for passing CMO No. 46 is noble and
well founded, the primacy of the Constitution must still be upheld. A balance must be struck
between quality education and academic freedom and this balance shall be translated in an
amendatory bill proposed by the author to replace the questioned memorandum order.

CONCLUSION
The Commission on Higher Education was created by the passage of Republic
Act No. 7722 or the Higher Education Act of 1994. Its powers and functions as an
administrative agency are contained in the said Act. Thus, in order to ascertain the extent
of its authority, one must scrutinize the salient provisions of its charter. As the policies of
CHED are to provide quality education that is accessible to all and at the same time
guarantee academic freedom, in interpreting its reach as an agency, these policies should
be read together with its powers and functions.
The Higher Education Act delegates legislative power upon the Commission.
However, any form of legislation such as rules and regulations or memorandum orders,
as in this case, that are enacted by the Commission in the exercise of its legislative
powers must necessarily be limited by the standards set in its charter. Moreover, the
policies set forth therein should also be kept in mind in any actions that the Commission
might do, ensuring that these said actions must be in furtherance of the said policies.
These determine whether CHED has acted beyond the scope of its authority. Therefore,
in the performance of its functions, the Commission can only pass legislative measures
that conform to the standards set in the Act of Congress itself.
As Section 13 of the Higher Education Act provide that nothing in the Act can
be interpreted in such a way that would be violative of the guarantee of academic
freedom, any of its undertakings that may pose as a threat to the said guarantee would be
outside the scope of its jurisdiction and would not be valid nor binding. Hence, the
Commissions minimum standards should not go into the realm of activities that are
protected by academic freedom.
CHED Memorandum Order No. 46 was passed because of the alleged need to
enhance the level of quality of higher education in the Philippines in such a way as to be
equal to that of international standards. The ASEAN Economic Integration set in 2015
has led CHED to pass the questioned memorandum order in order to make our tertiary
educational system acceptable in the ASEAN environment. Despite the fact that the
ASEAN Economic Blueprint, an instrument to which the Philippines is a signatory to, is
legally binding, there was no mention even of a mandate in the Blueprint of said
Integration of a need to reform the higher education system in our country in preparation
of 2015. Moreover, even if there was a mandate to reform our educational system, the
ASEAN Charter and its implementing instruments recognize that any of its treaties
should still be subject to the national laws of the signatory country. Thus, even if the
ASEAN Blueprint requires our government to shift our educational paradigm to that of a
Quality Assurance Framework, this shift should still be within the 1987 Constitution. It
should be set up in such a way that would not clash with the guarantees of our
Constitution, most especially that of academic freedom.

Quality education, although made a policy of the State in the 1987 Constitution,
should be seen as a mere aspiration and not a direct mandate on the National
Government. The governments role in trying to improve the standards of academic
institutions should ensure the continuing upgrade of the quality of HEIs but in this regard,
they are urged to assist substandard schools rather than shutting them down. Thus,
CHED, being the instrumentality of the government in improving the quality of tertiary
educational institutions, should be seen as a tool for development and should render
proper assistance to these HEIs rather than imposing harsh requirements and actions upon
them.
In CMO No. 46, the Commission seeks to adopt a Quality Assurance Framework
wherein standards shall be set against which to evaluate quality. In attaining the desired
level of quality, CHED has imposed upon itself the burden of setting mechanisms,
procedures and processes that are to be followed by the academic institutions concerned.
This framework is to be carried out with the help of external agencies like CHED itself
and accrediting bodies. The overall approach of CHED is said to be developmental
wherein its main function is to help develop a culture of quality in the HEIs. However,
CHED invokes its power granted in its charter, the Higher Educational Act, to take
remedial action in relation to any deficiencies.
In its Memorandum Order, it can be perceived that the Commission failed to
include a section, which guarantees academic freedom similar to that which can be seen
in its charter, the Higher Education Act. The absence of this guarantee would leave
CHED with no limitations that may serve as its guide in the implementation of CMO No.
46. There are dangers that in this kind of situation, the Commission may execute the
Quality Assurance System, as it likes, even if this already encroaches upon institutional
academic freedom.