Our foreign service is in a mess

Please allow me to comment on your news item “Miriam Returns to Senate, Receives Peace Offering,” (PhilSTAR Sept. 18, 2014). The issue revolved on whether any career position remains in the DFA, after the Supreme Court decision in a recent case whereby the Court ruled that the Foreign Service Act referred to “ x x x CM-I ( Chief of Mission I ) as rank and not a position” (Cruz v. Carpio Morales et al. GR 203688).

This Court decision threw overboard the long standing principle that Chief of Mission is both a position and a rank. This rule has been in effect from the time the DFA was organized in 1946 under Executive Order 18, series of 1946. It was borrowed from the US Foreign Service, which served as the basis for the organization of our own Foreign Service.

That an organization cannot exist without positions is affirmed by then Foreign Minister Arturo M. Tolentino, a foremost expert in Constitutional Law in his Memoirs (Voice of Dissent, p. 724 ). He stated that a person who has not been appointed to a position as provided in the budget act, cannot collect any salary from the government. Such act will violate the provision in the Constitution that all disbursements of public funds must be pursuant to an appropriations act passed by Congress (Constitution, Art. VI, Section 24, par. 1 ).

The proposition that Chief of Mission is only a rank and not a position, was challenged before the Ombudsman and up to the Supreme Court on grounds that it is fatally defective. The decision did not indicate what position replaced Chief of Mission and Foreign Service Officer.

In the proceedings before the Commission on Appointments last Sept. 17, the author was given very limited time to speak. The author was asked to explain the difference in meaning between position and rank. He explained that position means the item in the budget for Chief of Mission, while rank is the order of precedence in an organization. His opening statement was terminated at this point, and so he was not allowed to present the following key points:

1) That position is permanent while rank is temporary. The rank terminates when the incumbent leaves office. The position, however, remains. The proposed appointee takes over the position vacated by a predecessor. In turn he will eventually vacate the same position and hand it over to a successor. Without a position to fill up, an agency will eventually have to close shop.

2) That position must always be stated in terms of a position title. Otherwise no appointment could be issued at all. One must be appointed as clerk, stenographer, legal officer, foreign service officer, chief of mission, etc. Appointments without the position title are invalid under the Civil Service Rules (CSC Omnibus Rules on Appointments and Other Personnel Actions, Rule III, Sec. 1, par. C).

3) Given the foregoing facts, the writer would have presented to the Commission the larger issue: What is the basis of the Supreme Court for abolishing the positions of Chiefs of Mission and Foreign Service Officers? Under our Constitutional system, only Congress can abolish items in the budget. This is based on the doctrine that what Congress creates, Congress can dismantle. The Supreme Court can declare items in the budget as Unconstitutional as in the PDAF case. However, the item still remains in the budget. The restriction is that no further disbursements can be made from the fund which has been declared Unconstitutional. Congress ultimately abolishes the assailed budget item by transferring the appropriations to another item, or by the simple expedient of allowing the budget item to lapse with the fiscal year, so that the item then reverts to the General Fund.

The President has the veto power to abolish items in the budget under the Constitution, Article VI, Sec. 27 par. 2. However, the Supreme Court does not have similar power. Thus, in the case at hand, the Supreme Court appropriated for itself powers which was not granted to it under the Constitution. Amending a provision of the Constitution is a power which belongs only to the people expressed through a plebiscite. Clearly, under the circumstances, the Supreme Court must be made to account for its strange action in the case at hand abolishing the positions of Chief of Mission and Foreign Service Officer.

In the testimony given by Undersecretary Linglingay Lacanlale following the author’s statement, she did not indicate what position replaced Chief of Mission and Foreign Service Officer. Thus, she did not supply the all important answer to how the newly confirmed FSOs can collect their emoluments from the government without any position. Moreover, she overlooked the more important aspect of her work.

 I had worked with Usec Lacanlale before and I know her to be a competent officer. However, being new to the job, she did not address the more important issue of correcting the irregular status of the DFA. Right now, the DFA is at best a de facto agency. Without any positions, it should technically have closed shop on Dec. 09, 2013, the day the Supreme Court decision became final, consistent with the statement in the memoirs of Tolentino. However, given the importance of the DFA, it must be allowed to operate under a de facto basis.

The mess in our Foreign Service is now evident. A sizable number of the documents signed by our consular officers, which get involved in court proceedings, could be challenged in court as invalid. Our Ambassadors abroad sign treaties, exchanges of notes and sign UN Resolutions (for those assigned in the UN and its agencies ), yet their status to sign such documents are in doubt. It will be an embarrassment should any of the countries co-signers of these documents, question the status of our ambassadors.

The de facto status of the DFA could quickly become a problem should any of the litigants using the consular documents signed by our consuls, take court action questioning the bona fides of the FSOs who sign these documents. The other way the DFA de facto status could end, is by attrition. It is no longer possible to appoint new FSOs, since one cannot get appointed to a rank, it must always be to an item in the budget. Eventually, the DFA will become undermanned and will no longer be able to deliver services to the people.

 The courts are created to resolved disputes in our society. However, the SC in the instant case made a decision that will create endless disputes. We hope the members of our Congress address this issue immediately for the good of our country.

(The author is a retired ambassador who served in the DFA for 32 years. He holds the degree of BA in Public Administration from the UP and Master of Arts in Law and Diplomacy (MALD) from the Fletcher School of Law and Diplomacy. He was one of those who drafted RA 7157, the Foreign Service Act of 1991 and was the DFA representative to the 1969-72 Integrated Re-organization Plan which became PD 1. The current dispute involves the correct application of these two laws.)