The Case of President Noynoy Aquino's First Memorandum Circular

Noynoy Aquino's First Memorandum CircularTriple ExposureImage via Wikipedia

By Rey Cartojano

In what could be a bold and decisive move to weed from public service Presidential appointees of the previous administration, President Noynoy Aquino acting through his Executive Secretary Paquito Ochoa declared in Memorandum Circular No. 1 that "ALL CO-TERMINOUS THIRD LEVEL POSITIONS VACANT AS OF JUNE 30, 2010; DIRECTING ALL NON-CAREER EXECUTIVE SERVICE OFFICIALS (NON-CESO) OCCUPYING CAREER EXECUTIVE SERVICE (CES) POSITIONS TO CONTINUE TO PERFORM THEIR DUTIES AND RESPONSIBILITIES; AND EXTENDING THE SERVICES OF CERTAIN CONTRACTUAL AND/OR CASUAL EMPLOYEES WHOSE CONTRACTS EXPIRE ON JUNE 30, 2010."

The Memorandum Circular immediately created fears and apprehensions from many sectors, even as the new administration made its position clear on midnight appointments irresponsibly rushed by the past government.  But the issuance of Memorandum Circular No. 1 substantially missed the controversial issue of rescinding and nullifying midnight appointments, which is a popular move for the new Aquino administration, as public perceptions will easily confuse the main thrust of Memorandum Circular No. 1 as covering midnight appointments.

And so, as fast as an embarrassed cowboy, a shorter, revised and amended version of the said Memorandum Circular No. 1 was issued and now declared ALL NON-CAREER EXECUTIVE SERVICE POSITIONS VACANT AS OF 30 JUNE 2010, AND EXTENDING THE SERVICES OF CONTRACTUAL EMPLOYEES WHOSE CONTRACTS EXPIRE ON 30 JUNE 2010.  Aside from the fact that both Memorandum Circulars are identically numbered 1 issued by the same authority, probably a first in the history of Philippine executive directives,  despite differences in presentation, language and scope, Presidential spokesman Edwin Lacierda said Malacañang had to "fine-tune" the memorandum circular since it was supposed to affect only political appointees and not all non-career officials in government.  Even if were so, the administration could have easily issued a new Memorandum Circular revising Memorandum Circular No. 1, but to have two Memorandum Circulars denominated as No. 1 with the new MC No. 1 'fine-tuning' the old MC No. 1 is a poor display of draftsmanship, no less.  

Let us dissect the scopes of both new and old Memorandum Circular No. 1.  In the old MC No. 1, the first part of the caption speaks of third level positions whose appointments are coterminous with that of the appointing power, who is no other than the President of the Philippines.  These third level positions refer to positions in the Career Executive Service  that above division chief level that exercise managerial functions, to include the following positions of Undersecretary, Assistant Secretary, Bureau Director, Bureau Assistant Director, Regional Director, Assistant Regional Director and Department Service Chief.  While the said caption brings fear to those duly qualified CESO career officials appointed by the President, as it presumes that they could be included in the clause, the contents of the old Memorandum Circular No. 1 categorically covers only non-CESO officials appointed by the past President. as they are given at the latest until 31 July 2010 to vacate their posts.  In short, the old Memorandum Circular No. 1 actually respects the rights of CESO career officials appointed by the President, so that these officials will have security of tenure even beyond the term of the appointing past President.   

The most feared provision, especially for the lowly rank and file government employees, is the directive on contractual and casual government employees, numbering in the tens of thousands to vacate their posts at the latest on 31 July 2010.  The only consolation though, is if the contracts of these contractual and casual employees already expired last 30 June 2010.  Interestingly and quite obviously, if the contracts of these contractual and casual employees expired on a date after and other than 30 June 2010, they will not be included in the coverage of the old Memorandum Circular No. 1.

The ultimate question then is this:  what is the difference between the old Memorandum Circular No. 1 and the the 'fine-tuned' new Memorandum Circular No. 1?

While the 'fine-tuned' new MC No. 1 eliminated the excess verbiage of the old MC No. 1 on the scope of the termination of Presidential appointees who are non-CESO holders (i.e., if the official is a presidential appointee of the past administration but holds a CESO qualification, he is not covered), the said new 'fine-tuned' MC No. 1 did not include from its coverage casual government employees.  In effect, the new 'fine-tuned' MC No. 1 revised and amended the old MC No. 1 as it excludes from its coverage thousands of casual rank and file government employees.

Despite the confusion that the new and old of the same Memorandum Circular No. 1 brought to government officials and employees, it is too early to be harsh on a very young administration which appears to be serious and determined in cleaning the ranks of the government of appointments based on political expediency rather than qualifications.  From the many career and qualified officials, the clarification brought sighs of relief and hope.  But even so, it will be unforgivable if this same mistake of 'fine tuning' and double talk will be repeated for succeeding presidential directives in the future.  After all, and as the popular saying goes, you can fool the people some of the time, but not all the time.

 

Expanded Senior Citizens Act of 2010

Expanded Senior Citizens Act of 2010Image via Wikipedia

Even when Republic Act No. 9944 otherwise known as the Expanded Senior Citizens Act of 2010 was signed into law by President Gloria Macapagal Arroyo last 15 February 2010, only now is the Implementing Rules and Regulations (IRR) have just been formulated by government agencies especially the Department of Social Work and Development.
Among the benefits and privileges include the grant of 20 percent discount and exemption from value-added tax (VAT) on the purchase of goods and services.  Another benefit is the five (5%) percent discount on electric and water consumption provided that the individual meters for the utilities are registered in the name of the senior citizen and that monthly consumption should not exceed 100 kilowatt hours of electricity and 30 cubic meters of water.
The poor senior citizens will also enjoy free vaccination against the influenza virus and pneumococcal disease. They are also entitled to P2,000 death benefit assistance and monthly social pension of P500 for indigent older persons.
The medical or health-related privileges, on the other hand, whether discounted or for free and the discounts on purchase of goods and services from leisure and recreation centers, should be subjected to the supplemental guidelines to be issued by the Department of Health (DoH) and the Department of the Interior and Local Government, respectively, within 30 days from the effectivity of the IRR.
The discounts on electric and water utilities should also be covered by supplemental guidelines issued by the Energy Regulatory Commission (ERC), the Metropolitan Waterworks and Sewerage System and the Local Water Utilities Administration (LWUA), respectively, six months after the effectivity of the IRR.
On the hand, the monthly social pension of P500 for indigent senior citizens shall be subject to DSWD guidelines which shall include the development of criteria for identification and selection of beneficiaries, the mechanisms for establishing a database, the system for delivery or release of the benefits, as well as monitoring and evaluation to facilitate the implementation of this additional government assistance.
The P2,000 death assistance is intended for indigent senior citizens who should be identified based on DSWD guidelines.
Around 6-million Filipino senior citizens are expected to benefit from the new law.

Is there legal basis for declaration of martial law in Maguindanao?

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Martial Law In Maguindanao

Early today, 05 December 2009, President Gloria Macapagal-Arroyo issued Proclamation No. 1959 placing the province of Maguindanao under martial law.

Article VII, Section 18 of the 1987 Constitution provides that the President as Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.

In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Obviously, there is no invasion in Maguindanao to warrant the declaration of martial law which leaves only rebellion as the basis for its declaration.

Article 134 of the Revised Penal Code, as amended by Republic Act No. 6968, states that rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.

Prior to the declaration of martial law, a sizable arms cache was recovered near the residence of the Ampatuan clan enough to arm more than a thousand men. Yesterday, the Ampatuans were able to secure a favorable ruling from the Court of Appeals in Cagayan De Oro City granting their application for a writ of amparo. Government forces also took into custody the patriarch of the Ampatuan clan, Andal Sr., and the ARMM Governor Zaldy Ampatuan. Subsequently, the government received intelligence reports that allegedly armed men started to group in various part of Maguindanao.

The last alleged event of armed men grouping apparently ignited the declaration of martial. Whether that alleged event constitutes "rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government" is a question of fact that goes into the basis for the declaration of martial law. Simply put, was there a state of rebellion as defined under the law to justify martial rule?
The declaration of martial law appears to be, first and foremost, a clever political decision, even with very minimal legal basis. When the President visited General Santos City last Thursday to condole with the victims of the massacre, she was faced with grieving families who communicated to the President their sentiments and disappointments on how the government has treated the suspects with kid's gloves, considering the scale and barbarism of the incident.

By declaring martial law, the President, who is least concerned now with popularity, has deflected serious criticisms on her anemic responses to the massacre, as most critical of her handling of the incident are now focused on whether there is legal basis to her declaration or not. In effect, the declaration is a classic political maneuver to silence mounting criticisms of the massacre, and shift public attention to the legal basis of the declaration of martial law, as the latter appears to have profound impact on a national scale more than the massacre.

The shift in attention and media focus will be clearer in the coming days as the President will submit a report in Congress within forty-eight (48) hours from the declaration of martial law. The debates will be in Congress, voting jointly, by a vote of at least a majority of all its members, to revoke such declaration or even extend it for such period if the invasion or rebellion shall persist and public safety requires it.

We just hope that the declaration of martial law will not muffle the cries for justice of those massacred, or that justice be sidelined in the arena of political convenience.

Philippine Anti-Child Pornography Law Is Passed

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Republic Act No. 9775, otherwise known as the Anti-Child Pornography Act of 2009, was signed into law by President Gloria Macapagal-Arroyo last Tuesday.

The law seeks to make Filipino children less vulnerable to the illicit trade by imposing stiff penalties on anyone found guilty of any form of involvement in child pornography and enjoining private entities to help in the effort.

As the law defines it, child pornography is any representation, by whatever means, of a child engaged or involved in real or simulated sexual activities.

The law mandates that child pornography victims be given emergency shelter or appropriate housing, counseling, free legal services, medical or psychological services, livelihood and skills training, and educational assistance.

By signing the law, the President has demonstrated the government’s compliance with different international treaties such as the Rights of the Child; the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography; the International Labor Organization (ILO) Convention No. 182 on the Elimination of the Worst Forms of Child Labor and the Convention Against Transnational Organized Crime.

The penalties for violating the child pornography law range from arresto mayor to reclusion perpetua and a fine of between P300,000 to P5 million, depending on the gravity of the offense.
It provides that a victim of child pornography shall be considered as a victim of a violent crime, and metes out penalties ranging from mayor to reclusion perpetual and a fine of 300,000 to 5 million pesos.

The new law criminalizes hiring, employing, using, persuading, inducing or coercing a child to participate in the production or any form of child pornography; and any form of involvement in creating any form of child pornography.

It also criminalizes publishing, offering, transmitting, selling, distributing, broadcasting, advertising, promoting, exporting or importing any form of child pornography; possessing any form of child pornography with the intent of selling, distributing, publishing or broadcasting them; and possessing and willfully accessing any form of child pornography.

Under the law, Internet service providers (ISP) must report to the Philippine National Police or the National Bureau of Investigation (NBI) within seven days from obtaining facts and circumstances that any form of child pornography is being committed using its server or facility.

To monitor compliance, the law creates an Inter-Agency Council against Child Pornography to be headed by the Department of Social Welfare and Development.
Members of the council are the heads of the Department of Justice, Department of Labor and Employment, Department of Science and Technology, Philippine National Police, Commission on Human Rights, Commission on Information and Communication Technology, National Telecommunications Commission, Council for the Welfare of Children, Philippine Center on Transnational Crime, Optical Media Board and NBI.

Finally, climate change law is passed!

It took nature in the form of devastating successive typhoons that Republic Act No. 9729 otherwise known as the "Climate Change Act of 2009" was signed last Friday into law by President Gloria Macapagal-Arroyo.
Coincidence or not, the law will hopefully consolidate government efforts, quite anemic and lacking in the aftermath of recent typhoons, in dealing with the impact of extreme weather conditions.
What politics failed to decisively pass for so long was simply rushed into law because of nature's destructive ways.