Maybe beige

Albert Pinkham Ryder. Macbeth and the Witches. Oil on canvas. Mid-1890’s and later. The Philips Collection acquired 1940. Right-clicked from www.philipscollection.org searched thru www.artcyclopedia.com

Congratulations to extended AFP Chief of Staff Hermogenes Esperon; and to all those reporters who got their story right on the extension of his tenure even if the sources are confidential.

He is not ready for private life; the plum civilian post is still being readied for him as “Thank you”, a token of gratitude and affection from the President for being her pollwatcher and her private security in 2004; but it’s not yet ready for occupancy.

(The President said the three-month extension was for wiping out the insurgency in three months or in May of this year. That’s probably for The Make-a-Wish Foundation.)

Don’t hurry him up, Yano can wait three months, Esperon’s civilian office is not ready, the drapes and furniture have not been inspected. Maybe beige?

The Constitution says that 1) the laws on retirement of military officers shall not allow extension of their services; and that the tour of duty of the Chief of Staff shall not exceed three years unless in time of war or national emergency as declared by Congress the President may extend it.

FVR when he was President interpreted these constitutional provisions as allowing for an extension of tenure beyond the compulsory retirement age, citing the records of the Con Com. Gloria followed suit with this interpretation; hence the revolving door policy; hence the post is given out like candy no matter how short the tenure (compulsory retirement age at 56); hence no continuity in policy; hence unrest among the rank and file.

But as everybody knows, (well, lawyers), constitutional construction is not the same as statutory construction. In statutory construction, the policy of the law is applied (the spirit rather than the letter) as revealed in the records of the legislative debate.

But in constitutional construction, the records of the Con Com (or what each of the commissioners said and how they voted etc.) are secondary sources of meaning; the primary source is the text of the Constitution, and the words are to be understood in their plain and ordinary sense, for it is the intent of the people when they ratified the Constitution that is being given life to and not necessarily the intent of the framers. (see constitutional law cases; I’m on limited time here)

“Plain sense” means not technical, or how ordinary people could have understood it when they ratified the Constitution. (When there is no jurisprudence on the meaning of certain words, the Supreme Court has been known to get the meaning of ordinary words from the dictionary, and they choose the meaning that is most common, or the most common usage of the word.)

Here’s how the Constitution is worded on the matter:

“1987 Constitution. Art. XVI Sec. 5 (5) Laws on retirement of military officers shall not allow extension of their service.

XXXX

Sec. 5(7) The tour of duty of the Chief of Staff of the armed forces shall not exceed three years. However, in times of war or other national emergency declared by Congress, the President may extend such tour of duty.

XXXX

Since the Constitution spoke of “laws on retirement of military officers,” I tried my best to shepardize the laws on this (given the limited time I give to the writing of this blog; you can do your own legal research) so we’d know what the Constitution was referring to.

“PD 1650. Sec. 5 a). Upon attaining fifty-six (56) years of age or upon accumulation of thirty (30) years of satisfactory active service, whichever is later, an officer or enlisted man shall be compulsorily retired; xxx ; and, Provided, finally, That the active service of military personnel may be extended by the President, if in his opinion, such continued military service is for the good of the service.”

XXXX

“Republic Act 8186. Sec. 3. xxx Colonels/Captain (PN) and Generals/Flag Officers shall be compulsorily retired upon the attainment of the maximum tenure in grade herein prescribed, or upon reaching the age of compulsorily retirement whichever is earlier, except for the Chief of Staff, AFP, who may be allowed by the President of the Philippines to finish tenure in position as provided for in the Constitution: Provided, that officers already holding these ranks upon the approval of this Act may be allowed one (1) year more xxx unless they shall have already reached the compulsory retirement age under existing laws, in which case the compulsory retirement age shall prevail.

 

” Sec. 4. Maximum Tenure in Position. — Officers holding the following key positions are hereby limited to a maximum tenure in position of three (3) years unless otherwise earlier relieved by competent authority or compulsorily retired under existing laws:

Chief of Staff, AFP

Vice Chief of Staff, AFP

The Deputy Chief of Staff, AFP

Major Service Commanders”

XXXX

When the Constitution says that laws on the retirement of military officers shall not allow extension of their service, it simply means that no laws shall be passed giving some kind of allowance or discretion or option for “extension of their service” as the Constitution states it.

 

Did the Constitution repeal or amend PD 1650? Such that the President is not allowed to extend service after the compulsory retirement age?

I’m not sure it does that or whether it’s retroactive to PD 1650 that it removed the discretion granted under PD 1650. If you take the two constitutional provisions together you could say that the Constitution disallowed laws that would extend service beyond three years as Chief of Staff.

The Constitution provided a ceiling of three years as Chief of Staff for any laws that may be passed in the future.

On the other hand, are the provisions of RA8186 consistent with the provisions of the Constitution? RA 8186 in Section 3 states that generals, etc. shall be compulsorily retired upon attainment of the maximum tenure or upon reaching compulsory retirement age, except the Chief of Staff who may be allowed by the President to finish tenure as provided in the Constitution.

Its Section 4 on the other hand says that the Chief of Staff and other officers shall have a maximum tenure of three years unless compulsorily retired under existing laws.

(The revolving door policy is caused by too many generals nearing the compulsory retirement age (by months or less than a year) and getting appointed as Chief of Staff.)

(But in Esperon’s case, he is being extended, so you’d probably want to ask the reverse, does compulsory retirement take place by operation of law upon 56, like the rest of them; and cannot be extended?)

When RA 8186 states “ unless compulsory retired under existing laws”, does it refer to old laws (existing laws) or does it prescribe a rule of compulsory retirement by operation of law? Whilst in Section 3 it says officers shall be compulsorily retired except the Chief of Staff who may be allowed to finish tenure.

“Existing laws” here would mean this RA and PD 1650. PD 1650 gave the President the discretion to extend service beyond compulsory retirement age. When that PD gave such discretion, did it mean that the compulsory retirement never takes place by operation of law at 56 whenever the President exercised the discretion under the PD and will only take place upon completion of the three years as Chief of Staff? Such that, when the discretion is exercised, the Chief of Staff is not considered “compulsorily retired under existing laws” as required by RA 8186?

To simplify: Does the clause “unless compulsorily retired under existing laws” apply to Esperon (Feb.9) on the theory of compulsory retirement by operation of law; or is it inapplicable because the theory of compulsory retirement by operation of law is negated by the grant of discretion to the President by the PD?

 

  (Happy litigating but you’ll have to ask the Supreme Court to exercise its duty of judicial review on a petition for certiorari and prohibition; and you could be mooted along the way.)

 

Let the President reap what she sows.