‘Principle of mutuality’ doesn’t apply to DND-UP deal: Palace

MANILA – The principle of mutuality of contracts does not apply to the Department of National Defense’s (DND) 1989 deal with the University of the Philippines (UP) which prohibits state forces from entering the university campuses sans prior notice, Malacañang said Wednesday.

“It (the 1989 DND-UP deal) suspends the exercise of jurisdiction in a given territory. So I don’t think [the principle of] mutuality [of contract] is required, and I’m speaking as a lawyer,” Presidential Spokesperson Harry Roque, a product of UP, said in an interview with CNN Philippines’ “The Source.”

Article 1308 of the Civil Code of the Philippines emphasizes the principle of mutuality of contracts, providing that “the contract must bind both contracting parties; its validity or compliance cannot be left to the will of one of them.”

UP and several groups, including lawmakers, have voiced objection to Defense Secretary Delfin Lorenzana’s unilateral abrogation of the DND-UP accord.

Roque explained that only contracts with “consideration” cannot be unilaterally terminated.

“Only contracts supported by consideration cannot be unilaterally terminated. Everything else, if it’s bilateral, it’s for cause, then it can be terminated. This (1989 pact) is an unusual contract, extraordinary contract,” he said.

Article 1318 of the Civil Code states that there is no contract unless the following requisites concur: “consent of the contracting parties, object certain which is the subject matter of the contract, and cause of the obligation which is established.”

The agreement, inked on June 30, 1989 by then-Defense secretary Fidel Ramos and then-UP president Jose Abueva, requires prior notification before police and military personnel can enter and conduct operations within UP premises.

On Jan. 15, Lorenzana unilaterally revoked the deal which he said was being used by communist insurgents as a “shield or propaganda” since cops and soldiers are not allowed to enter the university campuses without prior notice.

Termination ‘valid’

Roque said Lorenzana’s action was “valid” since it has the support of President Rodrigo Duterte.

“Under the doctrine of qualified political agency, unless revoked by the President, acts of his alter egos are valid and acts of the President as well,” he said.

The opposition has claimed that scrapping the deal was a desperate bid to silence the government’s critics.

Roque, however, denied the claim.

“As a UP alumnus, as a former UP faculty, I don’t think any UP student will be cowed. They will be undeterred. They will pursue and exercise their rights. And of course, one of the important rights in the university is that academic freedom,” he said.

‘Citadel of freedom’

Chief Presidential Legal Counsel Salvador Panelo, also a product of UP, echoed Roque’s statement and stressed that with or without the agreement, the university “remains to be the sole authority of what courses to teach and the manner by which the same is taught. It decides who the faculty members will be.”

“The freedom of expression and of speech is not abridged. Nor is the right to peaceably assemble prohibited. Neither does the abrogation proscribe or stop the faculty and students of UP from thinking freely on any subject,” Panelo said in a separate press statement.

Panelo was confident that UP “will always be citadel of freedom” even without the deal with the DND.

He added that the 1989 accord has to be abrogated because it is a hindrance to government forces’ operations.

“National security requires that the law enforcement and the military, as enforcers of law and the protector of the people, respectively, cannot be impeded or derailed in the exercise of this constitutional duty. Logic dictates that giving prior notice to UP before conducting lawful operations and serving warrants impedes law enforcement,” he said.

Acting as mediator

On Tuesday, UP president Danilo Concepcion asked Lorenzana to reconsider the termination of the DND-UP deal.

Concepcion also invited Lorenzana for a meeting to address the latter’s concerns.

Roque, who believed a meeting between Concepcion and Lorenzana is a “proper course of action,” expressed a willingness to act as a mediator between the two.

“I’m asking the DND Secretary and the president of UP to sit down and I’ve offered my good office to facilitate this meeting,” he said. “All I’m saying is let’s talk about this, I support the steps of the UP president, and let’s see why a 30-year old accord should not be continued when it has worked apparently well for the past 30 years.”