ChanRobles Virtual law Library
PHILIPPINE LAWS, STATUTES & CODES
A collection of Philippine laws, statutes and codes not included or cited in the main indices of the Chan Robles Virtual Law Library.
:
ADMINISTRATIVE ORDERS
PLEASE CLICK HERE FOR THE LATEST ➔ PHILIPPINE LAWS, STATUTES & CODES
ADMINISTRATIVE ORDER NO. 155 -
SUSPENDING AMBASSADOR ROMEO O. FERNANDEZ FOR ONE (1) YEAR AND
SUSTAINING THE ORDER OF THE SECRETARY OF FOREIGN AFFAIRS RECALLING HIM
TO THE HOME OFFICE FROM HIS POST AS AMBASSADOR-DESIGNATE TO PERU
This refers to the administrative charges,
dated July 15, 1988, filed by the Secretary of Foreign Affairs through
the Acting Director General of the Office of Personnel and
Administrative Services, against Ambassador Romeo O. Fernandez for
"insubordination, dishonesty, and grave misconduct and conduct
prejudicial to the best interest of the service."
Antecedent facts show that, on November 3, 1987, respondent was
extended an appointment by the President of the Philippines, as
Ambassador Extraordinary and Plenipotentiary to the Republic of Peru
upon the recall of Ambassador Ernesto Garrido on September 1, 1987.
Pursuant thereto, the Secretary of Foreign Affairs (SFA) issued
Assignment Order No. 17-88 and Travel Order No. 88-26, both dated
February 15, 1988.
Before respondent could assume his new assignment, the SFA instructed
respondent not to proceed to Lima, Peru, on account of an alleged
adverse report purportedly submitted by the National Intelligence and
Coordinating Agency (NICA) identifying respondent as a probable
security risk, in view of his reported intimate association with a
Chilean-born Russian national named Tatiana V. Iachina. It appears that
the verbal instructions of the SFA are conveyed earlier to the
respondent by Undersecretary of Foreign Affairs Manuel T.
Yan.
The above instructions notwithstanding, respondent departed for Peru on
April 16, 1988. Thereafter, he assumed office as ambassador to Peru and
made arrangements with the receiving state (Peru) for the presentation
of his credentials.
On April 22, 1988, the Department of Foreign Affairs (DFA), in cable
No. L1-02-88-S, directed respondent to return to Manila immediately.
Department cable No. L1-03-88-S reiterated the recall order;
additionally, respondent was directed not to present his credentials or
otherwise to cancel the arrangements for that purpose, if already
made.
Not long thereafter, or on April 30, 1988, respondent, by way of reply,
requested reconsideration of his recall order and cautioned the DFA
that his recall on the eve of presentation of his credentials might be
viewed as an unfriendly act. There were other cables from respondent.
Nonetheless, respondent's requests for reconsideration and deferment of
his recall order were all rejected by the DFA. He then returned to
Manila on June 26, 1988.
Respondent was likewise charged with dishonesty thru misrepresentation
in that Maria Romina L. Fernandez, who is listed as respondent's 3-year
old daughter in Travel Order No. 88-26, was averred to be his daughter
by Liza L. Fernandez in the child's passport application when in Birth
Certificate D13 I-M10 No. 010124 legalized at the Consular Department
of the Ministry of Foreign Affairs of the U.S.S.R. on June 2, 1986,
Maria Romina Fernandez, the child, is declared to be the daughter of
Romeo Fernandez and Tatiana Vladimirovna Yashina and in the Application
For Immigrant Status (September 11, 1987) of one Tatiana V. Iashina
a.k.a. Gina Alvarez, respondent declared Maria Romina Fernandez to be
the child of Tatiana V. Iashina. In Note Verbale No. 88-1210, dated
March 14, 1988, addressed to the U.S. Embassy and in Note Verbale No.
88-1268 dated March 17, 1988, addressed to the Canadian Embassy,
applying for entry visas for Tatiana Iachina, she was described as a
landed immigrant when the truth of the matter is that Tatiana entered
the Philippines as a temporary visitor (tourist) with a 9(a) visa on
November 29, 1986, and was granted a change in status to non-preference
quota immigrant under Sec. 13 of the Philippine Immigration Act only
on November 22, 1987. There is a third specification in that
"Ambassador Fernandez figured prominently as the spokesman, guarantor
and overall protector of Miss Tatiana Iachina from her exit from the
USSR, her admission in the Philippines under a tourist visa, her change
of status from tourist to quota immigrant, her application for transit
visa from the U.S. Embassy and finally, her departure for Lima,
Peru."
The change of grave misconduct and conduct prejudicial to the interest
of the service is based on respondent's public criticisms addressed to
the media, his non-reporting to the Department, as Charge d' Affaires
of the Philippine Embassy in Moscow, of activities of employees under
him who were close associates of an entrapment group, and the use of
threats and intemperate/irresponsible language in official and other
communications.
Acting on the administrative complaint, the Board of Foreign Service
Administration (BFSA) referred the case for investigation and report to
an Investigating Committee. Thereafter, or on February 27, 1989, the
Board rendered the following findings, as follows:
"The
Investigating Committee is fully aware of the previous meritorious
service of the respondent who rose from the ranks in the career service
until he reached the position of Chief of Mission Class I. He was
favorably recommended by Secretary Manglapus to be assigned as
Ambassador to Peru and the President signed his letters of credence.
"He openly defied an order of
the Secretary not to proceed to Lima, Peru, in view of an adverse
information against him and his illicit relations with a Russian
citizen. He also refused to return to Manila despite the repeated
orders from the Department. It is admitted by the Respondent that
Tatiana Iachina was born in Chile. When she became orphaned, she was
brought to Russia where she was raised and educated by Russian
government authorities."
The same Board went further to recommend:
"The
offenses of insubordination, dishonesty, grave misconduct and conduct
prejudicial to the best interest of the service are all grave offenses
which call for the imposition of a maximum grave penalty. However, the
Board considered his length of service and that it is his first offense
as mitigating circumstances. Wherefore, the Board recommends that the
proper imposable penalty in this case against respondent is suspension
for one year."
From this resolution, respondent appealed to this Office manifesting his non-conformity to the BFSA resolution of February 27, 1989. The pertinent portion of his letter-memorandum, dated September 22, 1989, reads:
"It
may be noted that the Resolution signed by Manuel T. Yaw (sic) as
Acting Chairman does not indicate that this was the handiwork of the
Board of Foreign Service Administration. Please note that no signatures
of the members present and concurring appear in the documents. It may
be noted further that on page 11 of the Resolution the findings is
attributed to an Investigating Committee and therefore is not the
deliberation of the Board en banc. This committee was chaired by the
Ex-Justice Jorge Coquia, Assistant Secretary for Legal Affairs, with
Ambassador Rosalinda Tirona, Ambassador Ernesto Garrido, Assistant
Secretary for Legislative Affairs Vicente de Vera and Deputy Civil
Service Commissioner Mario Yangco as members. . . ." [Emphasis by
itself]
At the outset, it must be stressed that the Resolution of the BFSA is only recommendatory in nature. Regardless of any error committed by the BFSA during the investigation, it does not preclude the President from exercising her administrative disciplinary authority over respondent who is a presidential appointee. On the other hand, the DFA regulations on administrative disciplinary proceedings against DFA personnel, particularly Section s 441 to 450 of the Foreign Service Code of 1983 and Ministry Order No. 12-85, dated June 5, 1985, being departmental regulations are, by their very nature, subject to the superior administrative disciplinary authority of the President over presidential appointees so much so that, whatever defect, it there be any, in the assailed BFSA resolution, it does not diminish nor supplant the disciplinary authority of the President over presidential appointees, as in the instant case.
This brings to the fore the core issue of whether or not respondent is administratively liable for "insubordination, dishonesty, and grave misconduct and conduct prejudicial to the best interest of the service."
After going over the records of the case, I concur with the BFSA finding respondent guilty of insubordination, dishonesty and conduct prejudicial to the best interest of the service.
On the charge of insubordination, the evidence incontrovertibly shows that respondent failed to return to the Philippines, despite the recall order of April 22, 1988, prompting the SFA to dispatch several cables reiterating his recall order. This fact alone constitutes insubordination, as respondent's conduct evinced a willful disregard of an express direction and refusal to obey reasonable orders of his superior. Unless countermanded by the President, the order of recall made by the SFA stands. In the instant case, I find the recall order of April 22, 1988, valid and effective. Respondent's contention that the recall order has no basis is not well taken. While it may be true that what prompted the SFA to issue the recall was the alleged NICA report tagging respondent as a possible security risk, which allegation is bereft of factual basis, nevertheless, respondent's defiance of the series of recall orders of the SFA constitutes insubordination.
With regard to the charge of dishonesty, I find respondent guilty thereof. In Administrative Order No. 122, we have had occasion to define dishonesty in this wise:
"Respondent
herself accepts the definition of 'dishonesty' in former Civil Service
Commissioner Abelardo Subido's Disciplinary Rules and Procedures in the
Philippines Civil Service (1976 Ed., pp. 41-42) 'as absence of
integrity; a disposition to betray, cheat, deceive or defraud; bad
faith.' (Citing Arca vs. Lepanto Consolidated Mining Company, CA G.R.
17679-R, Nov. 24, 1956, citing 27 C.J.S. 47.) For indeed, 'dishonesty'
means 'a disposition to lie, cheat or defraud; untrustworthiness; lack
of integrity' (State ex. rel. Neal v. Civil Service Commission, 72 N.
E. ed 769, 71, 147 Ohio St. 430) and 'signifies an intentional
violation of the truth' (Godfrey vs. Godfrey v. Godfrey, 106 N. W. 814,
819, 127 Wis. 47, 7 Ano. Cas. 176); and is synonymous to 'fraud' (Ex
parte Drayton, 153 F. 986, 991), so that 'whatever is dishonest is
fraudulent in foro concientiae' (Idem.). Its meaning —
'extends beyond acts which would
be criminal and is not restricted to such conduct as imports a criminal
offense; and it has been specifically defined as an absence of
integrity, a disposition to betray, cheat, deceive, defraud, or
deceive; bad faith, course of conduct generally characterized as
lacking in principle, a disposition to defraud, deceive or betray;
faithlessness, want of integrity in principle, or of fairness and
straightforwardness; fraud. It may consist in an intentional violation
of the truth, or any violation of the truth, or any deviation from
probity.' (27 C.J.S. Dishonesty, p. 312)'"
The facts on the record are clear. Respondent, in the passport application of his daughter, Maria Romina Fernandez, made it appear that the child's mother was Liza L. Fernandez, a statement contradicted both by Birth Certificate D13 I-M 10 No. 010124 and the Application for Immigrant Visa (September 11, 1987). Respondent, being the personal representative of our country, ought to be more discreet in the conduct of his public as well as private affairs.
Finally, respondent's public criticisms against the DFA aired through the media show outbursts of passion not befitting an ambassador. His actuations are covered by Administrative Order No. 46, dated September 15, 1937, "Prescribing Rules Regarding The Practice Of Officials And Employees Of The Government To Discuss Or Clarify All Differences Of Opinion On Public Matters In Press", which is hereby quoted in full for the information and guidance of all concerned:
"In
view of the frequency in which controversies touching upon particular
phases of governmental activity have been carried on through the public
press by contending officials of the Government, or between an official
of the Government on the one hand and a private individual on the
other; and since this practice is unseemly, distasteful, and may even,
at times be definitely harmful to the service; and because further, the
publicizing by two governmental officials of conflicting opinions or
real or fancied mutual grievances cannot fail to give the impression
that the Government is devoid of order and organization, and that its
members are lacking in that sense of restraint and decorum so essential
to the effective discharge of public duty;
"NOW, THEREFORE, I, MANUEL L. QUEZON, President of the Philippines, by virtue of the powers in me vested by law, do hereby direct the following rules to be followed:
(1)
(2)
"This
Order shall not preclude any official or employee of the Government
from furnishing specific information on, or from clarifying doubtful
points concerning, any appropriate subject pertaining to the functions
of the particular official or employee, provided that such statements
shall be without reference to previous criticisms of the Government, or
in answer to any of critics. Neither shall this Order preclude any
department or office of the Government from publishing from time to
time, as it is frequently its duty to do, articles in the daily press,
in other periodicals or magazines, or in publications of the
Government, which articles are intended to inform the people regarding
the policies of, and the work being done by the Government on matters
that may be of interest to the people in the promotion of their
well-being, such as topics regarding the efforts of the Government
toward the improvement of agriculture, development of proper commerce
and trading practices, and other matters of similar general
import.
"Any
official or employee of the Government violating any of the above rules
directly or indirectly shall be subject to disciplinary action,
including removal from office after due investigation and conviction."
Lastly, I agree with the Board of Foreign Service Administration and the Secretary of Foreign Affairs that respondent deserves the penalty of suspension for one (1) year.
WHEREFORE, respondent Ambassador Romeo O. Fernandez is hereby found guilty of insubordination, dishonesty, and grave misconduct and conduct prejudicial to the best interest of the service. Accordingly, he is hereby meted the penalty of suspension from office for one (1) year without pay.
DONE in the City of Manila, this 22nd day of January, in the year of Our Lord, nineteen hundred and ninety.
chanrobles virtual law library
Back to Main
Since 19.07.98.