Why an IRR on the new AFP retirement law?

ACTIVE and retired Armed Forces of the Philippines (AFP) personnel hail the passage of Republic Act (RA) 11709, which takes effect on July 1, 2022 and after its publication in the Official Gazette and in at least two newspapers of general circulation. This new law governs, inter alia, the Retirement (Title III), Attrition System (Title IV), and Procurement of Officers and Enlisted Personnel (Title V) in the AFP. It mandates the Department of National Defense to formulate the rules and regulations necessary to implement the provisions of this law within 90 days from its effectivity.

Being retired AFP officers, we are in no way affected by this law in the same way probably as our views on the subject matter at all. But being one of the products of the State's investments who could not have afforded the education and training without the AFP's support, it behooves me to share my thoughts.

RA 11709 envisions to "allow the new leadership of the AFP a longer period to implement reforms and institutionalize sound policies that will redound to the improvement of the AFP." Congress specifically mentions its intent to "obviate revolving-door accommodation promotions" among chiefs-of-staff of the AFP (CSAFPs) who were promoted to four-star rank, but some are only able to serve for a brief period. From 1936 after the AFP was established by virtue of Commonwealth Act 1 to date, there had been 57 CSAFPs.

This piece of legislation closes the revolving door. It locks away forever the possibility of having another CSAFP serving for only 78 days during the presidency of Corazon Aquino or for 102 days under President Rodrigo Duterte. While President Gloria Macapagal Arroyo in her nine-year presidency had 11 CSAFPs and President Benigno Aquino 3rd had appointed seven, not one Commander-in-Chief beats President Duterte. He has appointed 11 CSAFPs during his six-year term as president.

Under the new law, President-elect Ferdinand Marcos Jr. will get to appoint only two CSAFPs — one in 2023 and another in 2026. The next general or flag officer to command the more than 150,000-strong AFP as CSAFP is accorded a fixed tour-of-duty (ToD) of three years (Sec. 2). This opens the possibility of a 62-year-old CSAFP when one gets appointed at age 59, which is beneficial to the people and the State! We stand to reap the fruits of the country's investment in national security in terms of the education and training of these general/flag officers. When the State retires them at age 56 under the old law, some private corporations and endeavors hire them and benefit from the maturity, leadership experience and vast competencies of these "still young retirees" that could otherwise be squeezed to the pulp.

I will skip further discussion on the new law and reserve it for the concluding part of this commentary. I would now jump to an important issue.

The law with its excellent provisions bodes well for the AFP, but a lot depends on how the law will be interpreted and implemented. A set of Implementing Rules and Regulations (IRR) objectively vetted and carefully crafted is necessary to breathe life to the spirit of the law. One that gives rise rather than defeat legislative intent to professionalize the AFP, cultivate a culture of excellence and engender merit system.

The maximum tenure-in-grade (MTiG) of three years for all general/flag officers that effectively sets their retirement age at 59 years old needs a deliberate and objective interpretation. Not only incumbent star ranks, senior colonels/captains who are awaiting vacancies for promotion are also asking. To whom does MTiG apply — is it also to the incumbent general/flag officers or only to those who will be promoted after the effectivity of the law? The prevailing view, it seems, is that it also applies to the incumbent general/flag officers. I am of the contrary view.

The answer can be found in Sec. 22(b) that provides, "The maximum tenure in-grade shall only apply to officers and enlisted personnel promoted after the effectivity of this Act." By "officer," the law did not distinguish between general/flag officers and colonels/captains and below. Ubi lex non distinguit, nec nos distinguere debemus. Where the law does not make any distinction, neither should we — is a well-settled principle in law. I would argue that if the congressional intent is to exempt the incumbent, it could have stated thus: "Except for the incumbent general/flag officers, the maximum tenure-in-grade shall..."

It follows therefore, that the MTiG as mandated by RA 11709 does not apply to the current general/flag officers, colonels, lieutenant colonels, majors and captains (and their equivalents in grade in the Philippine Navy) until and unless they are promoted on or after July 1, 2022. Those who will not be eventually promoted after that date of effectivity will all retire at 56 years of age or upon accumulation of 30 years of satisfactory active service under the provisions of the Sec. 2 of Presidential Decree 1650 that amended Sec. 5 of PD 1638.

This interpretation also follows the concept of prospective application of laws. The MTiG of three years as introduced in the new law cannot apply retroactively to incumbent general/flag officers who were promoted before RA 11709 was passed. The new law explicitly provides to whom it applies.

There will practically be no upward movements to general/flag officer grades if their tenures will be extended! Except for the one selected as CSAFP, there will be no slots for the colonels/captains whose promotion to star rank is based on vacancies. And while the new law shortens the MTiG of colonels/captains from 10 to eight years, they have to wait three years longer for vacancies in the scarce star ranks. That seems unfair as it is absurd. Certainly, it will have a consequent morale problem neither intended by Congress nor will be allowed by the Defense department.

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To be concluded on Sunday, June 5, 2022.

Source: TheManila Times