On the tenure of the AFP chief of staff

MANILA, Philippines - This is in reaction to the news item written by Marvin Sy titled “Gonzalez: Extension of AFP chief’s term unconstitutional” appearing on page 2 of the Philippine STAR Feb. 14 issue.

Chief Presidential Legal Adviser Raul Gonzalez has reportedly warned President Arroyo against extending the term of AFP chief Gen. Victor S. Ibrado as doing so could violate the Constitution. He said that “she can’t and that is something that he (Gonzalez) will debate with anybody at any time.” I will not debate with Atty. Gonzalez, because I am not even a lawyer.

Atty. Gonzalez said the Constitution specifically provides two conditions that allow the possible extension of the AFP chief, namely if there is a war or if Congress declares a state of emergency. But he failed to mention that this applies to extension beyond the Constitutional limit of three years. Let me quote Section 5 (7) of Article XVI of the Constitution, thus “The tour of duty of the Chief of Staff of the Armed Forces shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty.”

The above provision does not prevent the President from extending the service of the AFP Chief of Staff beyond his compulsory retirement date so long as the tour of duty does not exceed three years. The Constitutional provision that raises the question on the legality of such extension is Section 5 (5) of Article XVI which provides that “Laws on retirement of military officers shall not allow extension of their service.”

I say that Gen. Victor S. Ibrado, who reaches compulsory retirement on his 56th birthday on 10 March, 2010, can be allowed by the President to continue serving as AFP Chief of Staff, pursuant to Section 3 of RA 8186 enacted on June 11, 1996.

Section 3 of RA 8186 provides that “unless earlier separated, retired or promoted to the next higher grade in the AFP Table of Organization, Colonels/Captains (PN) and Generals/Flag Officers shall be compulsorily retired upon the attainment of the maximum tenure in grade herein prescribed, or upon reaching the age of compulsory retirement whichever is earlier except for the Chief of Staff, AFP, who may be allowed by the President of the Philippines to finish tenure in position as provided for in the Constitution. (italicizing supplied).

The abovecited provision of Section 3 of RA 8186 was the legal basis for then President Fidel V. Ramos in allowing the then AFP Chief of Staff Gen. Arturo T. Enrile to continue in his position. When Enrile’s continued service beyond his 56th birthday on 20 June 1996 was questioned, the Office of the President justified the further need of his services in view of the coming APEC meeting in Manila. Malacañang should have cited the recently enacted law as the legal basis. Some other AFP chiefs were allowed to continue beyond their 56th birthday.

Section 4 of RA 8186 likewise provides “that except for the Chief of Staff of the AFP, no officer shall be assigned/designated to the positions of Chief of Staff, Vice Chief of Staff, The Deputy Chief of Staff, and Major Service Commanders of the AFP or promoted to the rank of Brigadier General/Commodore or higher if he has less than one (1) year of active service remaining prior to compulsory retirement.”

This provision of Section 4 is also the legal basis of the President in appointing as AFP chief of staff even those with less than one year remaining before their compulsory retirement date, like Generals Roy A. Cimatu, Dionisio R. Santiago and Benjamin P. Defensor Jr.

Some say that the above cited provision of Section 3 of RA 8186 violates the Constitution, but unless and until it is ruled unconstitutional by the Supreme Court, it is presumed to be legal and in accordance with the Constitution.

Incidentally, I published an article on this issues in the AGFO Newsletter that came out on 11 February 2010, a copy attached.

Very truly yours. — BGEN ROSALINO A. ALQUIZA, AFP (Ret.), Vice Chairman and Vice President, AGFO