FREE LEGAL ADVICE IN DEAR PAO COLUMN

Dear PAO,

I retired from the Armed Forces of the Philippines (AFP) in December 2007. I started to receive my pension in the year 2008. In 2009, I committed a crime and, after trial, I was convicted for the crime charged with the penalty of prision mayor. One year thereafter, my wife complained that my pension was cut by the AFP Finance Center. When I wrote a letter inquiring about the matter, they sent me a communication indicating therein that since I was convicted of a crime and the penalty imposed is prision mayor, I am no longer qualified to receive my pension. Are they correct in removing my name from the list of retirees?

Ponciano

Dear Ponciano,

Pursuant to Article 42 of the Revised Penal Code of the Philippines ( RPC), “the penalty of prision mayor shall carry with [it] temporary absolute disqualification and [also] perpetual special disqualification from the right of suffrage, which the offender shall suffer although [he is] pardoned [ regarding] the principal penalty, unless the same shall have been expressly remitted in the pardon.” Related to the said provision of law is Article 30, which pertains to the effects of perpetual or temporary absolute disqualification. The penalties of perpetual or temporary absolute disqualification for public office shall produce the following effects:

“1. Xxxxx

2. Xxxxx

3. Xxxxx

4. The loss of all rights to retirement pay or other pension for any office formerly held.” (Ibid.)

Section 27 of Presidential Decree ( PD) 1638 ( Establishing a New System of Retirement and Separation for Military Personnel of the Armed Forces of the Philippines and for Other Purposes) states, “Military person- nel retired under Sections 4, 5, 10, 11 and 12 shall be carried in the retired list of the AFP. The name of a retiree who loses his Filipino citizenship shall be removed from the retired list and his retirement benefits terminated upon such loss.”

The aforementioned law is silent on the termination of retirement benefits of a retiree who is penalized for committing a crime. But pursuant to Article 10 of the RPC, “Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this code. This code shall be supplementary to such laws, unless the latter should specially provide the contrary.”

Applying the above provi- sions of laws, the Armed Forces of the Philippines is correct then in terminating your retirement benefits because you are serving a penalty that carries with it the loss of retirement pay or pension.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.