THE Department of Justice (DOJ) has paved the way for the Department of Social Welfare and Development (DSWD) to accept donations from individuals and corporations related to the tobacco industry.
In a six-page legal opinion signed by Justice Secretary Jesus Crispin Remulla, the DOJ held that acceptance by the DSWD of donations from entities including private persons identified with the tobacco industry do not violate a provision in the Joint Memorandum Circular (JMC) issued by the Civil Service Commission (CSC) and the Department of Health (DOH).
The circular, otherwise known as Protection of the Bureaucracy against Tobacco Industry Interference, bans public officials and employees from soliciting or “accepting, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value in the course of their official duties, or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office from any person or business related to the tobacco industry.”
The prohibition is in consonance with the country’s attempt to comply with its international commitments under the World Health Organization Framework Convention on Tobacco Control (WHO FCTC), to which the Philippines is a signatory.
The DOJ stressed that the prohibition under JMC No. 2010-01 is a reiteration of the same proscription found in Section 7(d) of Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees.
The DOJ noted that both JMC No. 2010-01 and Section 7(d) of R.A. No. 6713 prohibits the acceptance or solicitation by public officials and employees of gifts in the course of their official functions, but not by the government agency or office itself.
Likewise, the JMC No. 2010-01 imposes a penalty upon the erring public official or employee, in case he or she violates said circular and not the agency or department itself.
“Given that the prohibition under JMC No. 2010-01 only expressly covers public officials and employees, the same cannot be interpreted to broadly extend to the national government, local government, and other government agencies, subdivisions, and offices,” the DOJ clarified.
The DOJ issued the legal opinion upon the request of DSWD Secretary Rex Gatchalian.
In his letter-request, Gatchalian sought the DOJ’s opinion on the legality of accepting donation from a tobacco company of three mobile clinics for the use of social welfare and disaster response operations, in light of the prohibition provided under JMC No. 2010-01.
Gatchalian expressed belief that the acceptance of donation from a tobacco industry was not prohibited under the country’s domestic legal system.
In issuing the circular, the DSWD said the CSC and the DOH “overstretched” their construction of the regulations provided under WHO FCTC and existing national laws on tobacco products and industry.
Gatchalian also noted that the DSWD under the Duterte administration issued Administrative Order No. 7, series of 2018 which provides that “DSWD personnel regardless of rank and status shall limit interactions with the tobacco industry to those strictly necessary for its regulation.”
Subsequently, the DSWD issued AO No, 11, series of 2019, which expanded the prohibition against receiving gifts from any person or business related to the tobacco industry.
The order made the prohibition no longer just applicable to the employees and personnel of DSWD but also to the agency itself.
“As correctly pointed out in your letter, existing national laws regarding the regulation of tobacco in the country do not explicitly restrict donations made by persons or businesses involved in the tobacco industry to government agencies,” the DOJ declared.
“Moreover, the WHO FCTC does not oblige Parties to absolutely ban or prohibit the donation of persons or businesses involved in the tobacco industry to government agencies,” it added.
However, in light of AO No. 11, the DOJ advised the DSWD to internally address its “overreaching inclusion” of both the agency and its officials and employees in the coverage of the prohibition.
The DOJ also informed the DSWD to likewise seek the position of the DOH and the CSC on the matter being the lead implementing agencies of the joint circular.