Age-rule ‘violations’ have foreign service going gray

(I did the following article for I-Magazine of the Philippine Center for Investigative Journalism)

UP for confirmation before the Commission on Appointments anytime now is retired Chief Justice Hilario Davide, 71, who has been nominated as permanent representative to the United Nations in New York.

If confirmed by the Commission on Appointments, Davide will replace Lauro Baja, 69 years old and a retired career foreign-service officer.

As ambassador to the United Nations, Davide would have the duty to ensure that Philippine interests are protected in all the international treaties that the organization is crafting and implementing. For that, he would get at least $30,000 ( P1.5 million) a month, representing $20,000 free housing plus some $10,000 in salary and allowances.

In a country that honors its elders for the wisdom they have accumulated through the years, Davide’s potential career shift late in life may seem most welcome. Yet within the staid foreign affairs department, grumbling over what many there see as yet another violation of the Foreign Service Act (Republic Act 7157) is becoming louder.

To many foreign affairs department officials and staff, the Act bars the appointment of non-career individuals aged 70 years old and above to a foreign service post after 1992. They also note that the Act specifically says that career officials and employees of the Department of Foreign Affairs (DFA) are to be retired once they reach the age of 65.

Section 23 of the Foreign Service Act states: ” All officers and employees of the Department who have reached the age of sixty-five (65) shall be compulsorily and automatically retired from Service. Provided, however, that all incumbent non-career chiefs of mission who are seventy (70) years old and above shall continue to hold office until June 30,1992 unless sooner removed by the appointing authority. Non-career appointees who shall serve beyond the age of sixty-five (65) years shall not be entitled to retirement benefits.”

Despite this law, non-career people like Davide who are past the allowed age are still being nominated to foreign posts. Meantime, Baja – who Davide is poised to replace once his nomination is confirmed – is only one among several career officers still serving past the retirement age of 65.

This has been going on for years, say DFA insiders. But since their environment and nature of work encourage them to be pacifists rather than activists, DFA officials and staff have so far confined their grumbling about the age-rule violations within the department.

It has taken former senator Francisco Tatad, who once chaired the Senate foreign relations committee, to bring the issue at least twice now before the Commission on Appointments.

Tatad had earlier objected to the appointment of former Vice President Teofisto Guingona as ambassador to China, with concurrent jurisdiction over the Democratic People’s Republic of Korea and Mongolia. One of the reasons he cited was Guingona’s age, which was “more than 70 years.”

VOID FROM BEGINNING?

But the Commission went on to confirm Guingona, who was actually 76. Tatad filed a complaint against the Commission at a Quezon City Regional Trial Court to have Guingona’s appointment “void from the beginning.”

At the onset of the Hello Garci controversy last year, however, Guingona resigned before he was able to assume his ambassadorship.

When Davide was nominated, Tatad again objected. In a letter to then Senate President Franklin Drilon, Tatad said, “(Obviously) this law (RA7157) did not anticipate the case of specially situated septuagenarians who may wish to become or accept the position of Ambassador Extraordinary and Plenipotentiary after they had retired from business, or other professions, or other branches of government, or even from the Department itself.”

“But,” he pointed out, “it is the law, and our duty is to comply with it.”

According to Tatad, the provision on compulsory retirement is clear on four points:

* All career officers and employees of the Department shall be retired compulsorily and automatically upon reaching the age of 65;

* All non-career chiefs of mission, 70 years or above, who were in the service when the law was enacted in 1991, could serve only until June 30, 1992;

* As a consequence of the above, no non-career individual who is 70 years or above may be appointed chief of mission after June 30, 1992;

* non-career individual, who is 65 years or older, may serve as chief of mission until he reaches 70 years, unless he or she is removed or leaves the service before that; but, he or she shall not be entitled to retirement benefits.

Former Senator Leticia Shahani, author and main sponsor of R.A. 7157, has also said that the law puts the retirement age for career foreign-service officers at 65 while that for non-career ambassadors is 70. She confirms the contention of Tatad and many DFA insiders that after 1992, those past 70 should no longer be appointed to foreign-service posts.

Shahani’s stand is supported by records of the congressional deliberation on R.A. 7157. Retired Ambassador Hermie Cruz points to the following passages in the deliberation transcripts:

“Sen. Ernesto Maceda: ‘Mr. President, I really do not want to insist at this time. My feeling is that there is a violation – and I said this in the Commission on Appointments – of existing retirement laws, where the retirement law is 65 and the President can just readily extend one year, so as not to go into a lot of debate, could we just limit the political ambassadors to a 70 years maximum limit?’

“Senate President Jovito Salonga: ‘That would mean that persons like Ambassador Teehankee who retired at 70 from the Supreme Court cannot be appointed Ambassador to the UN?’

“Sen. Maceda: ‘Exactly Mr. President… I think considering that our retirement law is 65 for the Executive Department, and even for the Supreme Court it is 70, why should we go beyond the Supreme Court retirement age where the job is intellectual and they sit down, research and study. The job of an ambassador is more active than the job of a Supreme Court justice.’”

Cruz says Maceda’s comments later became identified as the “Maceda amendment.” There were some proposals made afterward, but when Salonga asked if there were any objections to the “Maceda amendment” that had already been accepted, there was only silence. Salonga then declared: “Hearing none, the amendment is approved.”

Shahani, who was a diplomat before she entered politics, has also noted, “The job of a diplomat is physically demanding. We can’t put someone who is in a retirement mode to head an embassy.”

Michael Macaraig, president of the DFA Personnel Association (DFAPA), the umbrella organization composed of foreign-service officers and foreign service staff employees, the DFA Rank and File Association (DFARFA), does not see logic as well in re-enlisting into active service someone who has reached the age of retirement in another department. Pointing to the case of former Chief Justice Davide, he observes, “In the Supreme Court’s standard, Davide is retired. Why should DFA’s standard be less?”

Then again, glamorous foreign-service assignments seem to be one of the standard prizes for those who have pleased whoever is sitting in Malacañang – although these are also used at times to court someone whom the Palace wants to win over or placate.

Guingona’s nomination as ambassador to China, for instance, was seen as largely as the Arroyo administration’s way of winning back the former vice president who had even endorsed the presidential bid of opposition bet Fernando Poe Jr. in the 2004 elections.

NEUTRALIZE CRITICS

Many observers also consider the nomination last year of respected journalist Amando Doronila to a diplomatic post in Europe as another Palace ploy to neutralize yet another of its critics. Doronila would have been the Philippine ambassador to Belgium had not the Commission on Appointments rejected his nomination. But it was not his advanced age that did him in, although he was already 77 years old at the time. It was his competence that was challenged instead, with Sen. Luisa ‘Loi’ Ejercito making only a brief reference to his age during the confirmation hearings.

Unlike Doronila and Guingona, Davide’s nomination to the UN post is nothing less than a reward, say observers. Indeed, Davide’s decision to administer the presidential oath of office to then Vice President Arroyo on January 20, 2001 paved the way for her controversial assumption to the Office of the President.

Whatever its real reasons for nominating people deemed over the age limit under the Foreign Service Act, the Arroyo administration has maintained that it is well within its rights to do so.

In his reply to the complaint filed by Tatad on Guingona, then Solicitor General Alfredo Benipayo said, “Since an ambassador is the personal representative of the President and acts in behalf of the President, the President must be allowed to choose whomever she or she pleases.”

In addition, Benipayo’s interpretation of the Act was that any person, regardless of age, may be appointed or re-appointed by the president as ambassador, provided that non-career appointees past the retirement age shall not be entitled to retirement benefits.

Davide himself has seen it fit to defend Malacañang’s decision to nominate him. Taking the unprecedented step of answering someone opposed to his own nomination, Davide said, “The law recognizes the traditional power of the President to nominate/appoint in the foreign service individuals who are more than 65 years old whom the President believes can effectively represent the Philippines in diplomatic and permanent missions.”

Foreign Undersecretary for Administration Franklin Ebdalin, for his part, says that the president’s power to nominate a person of his or her choice as ambassador emanates from the Constitution and whatever the interpretation of R.A. 7157, the latter cannot supersede the former.

PALACE EMBOLDENED

It could well be, though, that Malacañang has also been emboldened by the willingness of DFA’s own career officers to overlook the rules and have themselves considered for assignments abroad even after they turn 65.

Just recently, retired career diplomat Antonio Villamor, 72, was confirmed as ambassador to Saudi Arabia. Last August, too, DFA employees complained to Foreign Affairs Secretary Alberto Romulo about the third extension of service of the ambassador to Japan, Domingo L. Siazon Jr., who turned 65 in July 2004.

Jocelyn B. Garcia, DFA’s acting assistant secretary for personnel and administration, wrote the Office of Legal Affairs, expressing concern on the legality of the extension of Siazon’s services “by the Office of the President from 10 July 2006 to 10 July 2007.”

Both Garcia and the DFAPA cited E.O 136 issued by President Joseph Estrada on July 31, 1999 that limits extensions to “extremely meritorious reasons” and for “a maximum of one (1) year only.”

But Siazon, who was the foreign secretary when E.O. 136 was signed, echoed Davide in retorting, “The prerogative of the President of the President to appoint ambassadors is well established under Philippine jurisprudence.”

He also insisted that his third extension is legal. “Executive Orders are signed by the President and therefore the President can in certain cases authorize exemptions to E.O. 136,” he said. “In all my extensions, the words ‘as an exemption under E.O. 136’ have been clearly indicated. I am quite certain about the legality of this appointment.”

Perhaps unaware of the restlessness his second extension caused in the DFA, Siazon then asked, “Why is the legality of the third extension being questioned? Why is the second extension not being questioned?”

In truth, Siazon’s overstaying in the service past retirement age is not an isolated case. Siazon himself cites the case of “Romy Arguelles, who was given a two-year contract as ambassador extraordinary and plenipotentiary to Japan in 1999 by President Estrada shortly before he turned 65 years of age. After his tenure in Tokyo, he was appointed AEP to the Netherlands after CA confirmation.”

Arguelles, now 74, is still in the Netherlands. There’s also Consuelo Puyat, ambassador to Chile, who is 69. And Baja, of course.

Then there are those who have gotten new assignments shortly before turning 65. Norberto Basilio, whose wife Erlinda is foreign affairs undersecretary for policy, became ambassador to Bangladesh a few months before he turned 65 last March 20. Estrella Berenguel also became ambassador to Vietnam three months before her 65th birthday.

Not surprisingly, the services of both Berenguel and Basilio have since been extended.

In official statements, the DFAPA and the Union of Foreign Service Officers (Unifors) have said such “unbridled extensions retard” the career development of junior and middle-level officers. In fact, these also fly in the face of a provision in the Implementing Rules and Regulations of R.A. 7157 related to the retirement age of 65. The provision says, “No foreign service officer, staff officer or employee who is over 62 years of age shall be considered for foreign assignment.”

Practicality dictates that an ambassador stay in a post for at least three years. After all, the cost of moving from one foreign post to another could run up to at least $30,000. It also takes a while for one to settle, develop contacts, and be effective as the country’s representative. Giving a new assignment to a diplomat who is over 62 would thus be almost guaranteeing he or she would be staying beyond the mandatory retirement age.

Ironically, Foreign Affairs Undersecretary Ebdalin also points to Estrada’s E.O. 136 as basis for all these extensions of services of presidential appointees beyond the compulsory retirement age. And he faults R.A. 7157’s lack of provision on sanctions for the non-adherence to the law.

“All we have are guidelines,” he says, “but no teeth.” – Philippine Center for Investigative Journalism