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Commentary

Plunder and a loophole in the law

/ 05:04 AM September 18, 2019

Plunder is a heinous crime in our country that carries severe punishment. Strangely, however, one can plunder government funds and do it under a legal facade, under the following scenario: Get appointed to a position in government even if you do not have the requisite qualification. Continue serving until somebody complains and your services are terminated. Nonetheless, you will be able to keep the compensation you had illegally collected under the doctrine of “de facto service” or “payment for actual services rendered.”

This loophole in the law was supplied by the Civil Service Commission (CSC) when it issued Resolution No. 91-1242 in 1994 based on the concept of “de facto service.” This doctrine was, in turn, based on the provisions of Republic Act No. 2260 or the Civil Service Act of 1959, a law framed under the 1935 Constitution which had no provision on the accountability of public officials. Thus, under this law, only the official who issued the illegal appointment is liable and must refund to the government the monies disbursed. The illegal appointee is not held liable.

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This author was one of those who drafted RA 7157 or The Foreign Service Act of 1991. When we drafted this Act in 1988, we rejected the doctrine of “de facto service” as incompatible with the provision of Article XI in the 1987 Constitution which states that “… Public officers and employees must at all times be accountable to the people…”

On this basis, we provided in Sections 22 and 34 of RA 7157 that both the person who benefited from the illegal appointment and the officials who issued the same must refund the government of the emoluments they had collected. In this regard, one must note that the Department of Foreign Affairs (DFA) under the Civil Service Law is in the Closed Career Service. The DFA must be governed only by the rules spelled out in RA 7157. The rules for the Open Career Service spelled out in  the Revised Administrative Code (RAC) do not apply to the DFA.

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Nonetheless, in the recent issue involving foreign affairs advisers (FAAs), this principle of the DFA being in the Closed Career Service was ignored, with dire consequences. The FAAs are in the noncareer service, and were disqualified from foreign assignments under the Foreign Service Act. They were assigned abroad and their appointments were later on declared in violation of law by the  CSC-NCR office.

On this basis, a complaint was filed with the CSC and the Office of the Ombudsman invoking the  provisions of the Foreign Service Act and asking the FAAs and those who had issued the illegal appointments to refund the government the compensation they had received. The Ombudsman cited the CSC circular on “de facto service” and rejected the complaint. In addition, it stated that its decision is final and with no reconsideration.

Thus, a law not applicable to the DFA and for use only in the Open Career Service was invoked, resulting in the acquittal of the FAAs and those who had issued the illegal appointments. Moreover, an obsolete law that is not consistent with Article XI of the  Constitution was applied, instead of the provisions of RA 7157, which as noted, was drafted pursuant to Article XI.

The worst part is, this procedure will benefit ranking officers of the DFA, who had or are exploiting this loophole in the law to continue plundering public funds. There are at least two ambassadors over 70 years old currently serving abroad in violation of Section 23 of RA 7157, which provides that noncareer ambassadors must retire at age 70. Each ambassador abroad collects at least P1 million a month. However, even if their appointments are declared illegal, they will keep the enormous sums they had collected under the dubious doctrine of “de facto service”. The total loss to the government of just these two cases cited is around P500 million.

Congress has been informed of these violations, but has refused to exercise its oversight functions to plug this loophole. The loss of public funds through this loophole remains, unless Congress acts.

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Hermenegildo C. Cruz is a retired career ambassador with a comprehensive background in management: BA degree in Public Administration from UP and graduate degree in management from the JFK School of Government at Harvard University. He drafted RA 7157, the Foreign Service Act, and represented the DFA in the  1969-72 Reorganization Plan implemented under PD 1. He worked in the Civil Service Commission before transferring to the DFA.

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TAGS: civil service commission, de facto service, Foreign Service Act, Hermenegildo C. Cruz, illegal appointments, Inquirer Commentary, plunder
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