AFP at the cusp of trial and error

Last of 2 parts

REPUBLIC Act 11939, the new law amending RA 11709, went through the crucible before it was signed by the President. Since both chambers of Congress want to have a claim to fame in rectifying the flawed provisions of RA 11709 that they passed, a bicameral conference committee had to harmonize the two versions of the bills each house has passed. Resource persons from the Armed Forces of the Philippines (AFP) and the Department of National Defense (DND) were again summoned to help legislators strike a “happy compromise” between what will be acceptable to the military and what the legislators are willing to adopt.

Hit and miss

The legislators saw how the repeal by RA 11709 of the provisions of Section 4 of RA 8186 barring designations to one-star position or higher if the officer “has less than one year remaining in the active service” was abused. For this reason, the Senate’s version wanted to revert to the “at least one year remaining in the active service” provision and apply it retroactively to July 1, 2022 when RA 11709 took effect. This was a laudable act of restoring a good provision of law imprudently repealed, only that it came eleven months later!

A long list of general and flag rank officers who were just a few days or a few months short of their compulsory retirement dates were designated to sensitive AFP posts and their promotions have been confirmed by the Commission on Appointments since July 1, 2022. They cannot be demoted through a legislative fiat. The administrative issuances and operational orders these star-ranked officers issued while in such posts cannot be abrogated without chaos. The appointments they made cannot be withdrawn without causing turmoil. Given these circumstances, the bicameral committee simply reverted to the old “at least one year” policy, but with a modification. The Chief of Staff of the Armed Forces of the Philippines (CSAFP), Philippine Military Academy (PMA) superintendent, commanding generals of the Philippine Army and the Philippine Air Force, and flag officer in command of the Philippine Navy may be designated to such positions even if they have less than one year remaining to serve in the active service. A consideration best accorded only to the AFP chief.

Because of protests against RA 11709’s 14 “key officers” with a three-year “fixed tour of duty” (FToD), RA 11939 reduced it to only five and two years “maximum tour of duty” (MToD). Except for the CSAFP with an MToD of three years, the flag officer in command of the Philippine Navy, the commanding generals of the Philippine Army and of the Philippine Air Force and the superintendent of the PMA will only have two years. But this is practically relapsing to the provisions of Section 4 of RA 8186 that RA 11709 amended.

From a maximum compulsory retirement age of possibly up to 62 years for an AFP chief of staff and a PMA superintendent under RA 11709, the new law mandates all officers and enlisted personnel to retire compulsorily at age 57 or upon rendering 30 years in the active service whichever comes later. I supported this singular, as opposed to staggered, retirement age once advocated by lawmakers because it satisfies the intent of the law without stalling the ascent of senior officers to higher posts in the AFP hierarchy.

The rest of the general and flag officers promoted before July 1, 2022, when this hit-or-miss RA 11709 took effect, are not supposed to be covered by the new compulsory retirement age. They are mandated to retire at age 56 per Section 5 of Presidential Decree 1638 as amended by PD 1650. But for some acts of “benevolence” benefitting among others, a chief of a unified command who has been known to move heaven and earth for a major service post, RA 11939 was made to apply to those who were appointed and/or promoted under RA 11709 and “other pertinent laws,” including PD 1638 as amended. Sheer luck or political accommodation?

The Maximum Tenure in Grade (MTiG) for colonel/Navy captain (O-6) was reverted to 10 years by the new law after it was reduced to eight by the assailed RA 11709. The MTiG for brigadier general/commodore (O-7) was increased from three years in RA 11709 to five years in RA 11939. But these changes were actually mere reversions to the old provisions on MTiG per Section 3 of RA 8186 that RA 11709 improvidently amended.

The three years “Fixed Tour of Duty” (FToD) provision in the amended RA 11709 was altered to “Maximum Tour of Duty” (MToD) in the new law — a mere change in semantics. But whichever way it is called, it will not necessarily stop the “revolving door.” As long as the “unless sooner removed by the President” proviso is there, an incumbent AFP chief is not assured that he will finish either his MToD or his MTiG. The reinstalled AFP chief Gen. Andres Centino, for instance, has until January 2026 to reach his maximum three-year term, but he is aware that he may be the CSAFP until December 2024 when he reaches his MtiG as a four-star general unless the President decides to remove him sooner.

Unhappy

RA 11939 becomes effective on June 1, 2023. But much of it are substantially rectifications of the repeals and amendments made by RA 11709 to still relevant provisions of laws from yesteryear. Yet, the moving force behind all these hullabaloos, which is “to obviate revolving door accommodation,” remains. And there seems no way to lick it even with the enactment of this amendatory law that fails to regulate the President’s otherwise unbridled exercise of his prerogative to appoint and remove an AFP chief. The law could have placed the burden on the Commander in Chief, by providing in Section 2(a) of RA 11939 that the CSAFP “shall serve a maximum tour of duty of three consecutive years commencing on the date the appointment is signed unless sooner removed by the President for cause.” And those grounds shall be just and authorized causes that may be defined under the Implementing Rules and Regulation (IRR) that the Department of National Defense is mandated to draft.

Much as the President’s power to remove remains absolute and requires no basis for the uninhibited exercise of his prerogatives, we are left with no choice but to earnestly appeal to the Chief Executive. That while he is the country’s top politician, he should be mindful that he is the commander in chief of all armed forces, bound by his oath to consecrate himself to the preservation and defense of the Constitution. He must lead and prevail over the interest of his political party, allies and members of his family. Because in preserving the same Constitution, his soldiers unflinchingly follow orders to protect and defend it — to death if it need be.

The President must be inducted into the military’s mechanism in the thorough and deliberate selection of senior officers to sensitive positions in the AFP through the Board of Generals (BoG). As the commander in chief, he must exact due diligence among the members of the BoG to prevent the submission to him for his consideration of more than one recommendee per available position. He can best promote merit and professionalism in the AFP by preserving the integrity and independence of the BoG’s resolutions and insulating it from political influence. He should direct the secretary of National Defense to stop influencing, much more imposing his will on, the decisions of the BoG.

Finally, the AFP must close ranks to protect the institution from within. The members of the BoG who were conferred with both authority and responsibility to pass upon the qualifications, and physical and moral fitness of candidates to key positions in the AFP must put the interest of the military institution above class loyalty or major service considerations. The BoG should revive the policy requiring medical examinations and the stringent requirement to pass the mandatory physical fitness test before a senior officer can be promoted to the next higher rank. Matters that are not provided under the law but matter the most to 21st century AFP.