SUMMARY
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MANILA, Philippines – The Department of Social Welfare and Development (DSWD) is free to accept donations from individuals and businesses linked to the tobacco industry, according to the legal opinion of the Department of Justice (DOJ).
Justice Secretary Jesus Crispin Remulla signed a six-page legal opinion saying that the DSWD accepting donations from individuals and businesses in the tobacco industry would not violate Joint Memorandum Circular (JMC) No. 2010-01 of the Civil Service Commission and the Department of Health, particularly Section 3.3.
The JMC prohibits government officials and employees from soliciting or accepting, directly or indirectly, any gifts, favors, gratuities, entertainment, loans, or anything of monetary value in the course of official duties. It also covers any official operations or transactions that an entity in the tobacco industry may affect.
According to the DOJ, the prohibition in the JMC is a reiteration of the same prescription found in Section 7(d) of the Code of Conduct and Ethical Standards for Public Officials and Employees.
This section of the law reads: “Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person 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.”
The DOJ said that both the JMC and the public sector’s code of conduct refer to individuals – public officials and employees – and not the government agency as a whole.
“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 said.
The JMC also imposes a penalty on the erring individual public official or employee, not the agency or department itself.
Social Welfare Secretary Rex Gatchalian requested the legal opinion from the DOJ, prompted by three mobile clinics accepting donations from a tobacco company for the use of social welfare and disaster response operations. Gatchalian believed that accepting donations was not prohibited.
In his letter, Gatchalian noted that a 2018 administrative order (AO) from former president Rodrigo Duterte’s DSWD held that “DSWD personnel regardless of rank and status shall limit interactions with the tobacco industry to those strictly necessary for its regulation.”
A year later, the DSWD issued AO No. 11, expanding the prohibition against receiving gifts from any individual or business linked to the tobacco industry.
“As correctly pointed out in your letter,” the DOJ wrote, “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 justice department advised the DSWD to internally address AO No. 11’s “overreaching inclusion” of both the agency and its officials and employees in the coverage of prohibitions.
The JMC’s prohibition of donations from the tobacco industry is in line with the country’s compliance with its international commitments under the World Health Organization Framework Convention on Tobacco Control (WHO FCTC).
The DOJ added that the WHO FCTC does not oblige countries to outright ban or prohibit the tobacco industry’s donations to the government. – Rappler.com
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