DOJ offers guidance on DMW law

ON May 5 or just a few winks away from election day, the Department of Justice sent an e-mail to the Blas F. Ople Policy Center, a non-profit organization that i head, offering guidance regarding some questions i have raised about the confusing state of affairs at the Department of Migrant Workers (DMW).

Signed by Justice Secretary Menardo Guevarra, DOJ Opinon No. 10,S-2022 expressed regret that the DOJ only renders a legal opinion upon the request of the heads of national government agencies and then only on specific legal questions or issues arising from the performance of their respective powers and functions.

The opinion also explained that the Justice Secretary has desisted from passing upon issues that have already been the subject of official action by other officials/offices, particularly in the case of the DMW, by no less than the Office of the Executive Secretary, “over whose actions he possesses no revisory authority.”

The DOJ opinion, three pages long, is aligned with the earlier memos issued by Executive Secretary Salvador Medialdea, which the rest of the Transition Committee with the exception of DMW Secretary Abdullah Mama-o, chose to adhere to. It was offered to us at the Ople Center for information and guidance only, and we wish to share its contents with everyone through this column.

For guidance, the DOJ referred our attention to Section 23 of the DMW Act.

Sec. 23 Transition Period—the transfer of functions, assets, funds, equipment, properties, transactions, and personnel of the affected agencies, and the formulation of the internal organic structure, staffing pattern, operating system, and revised budget of the Department, shall be completed within two years from the effectivity of this Act: Provided, That until new appointments and a new staffing pattern shall have been issued, the existing personnel of all subsumed entities shall continue to assume their posts on holdover capacities until new appointments or a new staffing pattern shall have been issued. Provided, further, That after the organization and rationalization process, the Department, in coordination with the DBM, shall determine and create new positions, the funding requirements of which shall not exceed the equivalent cost of the positions subsumed.

The DOJ opinion also cited the role of the Transition Committee in facilitating the complete and full operation of the Department to include the promulgation of implementing rules and regulations necessary to effectively implement the smooth and orderly transfer to the Department of the subsumed agencies.

The Transition Committee based on the DMW Act is composed of the DMW Secretary, the Undersecretary for the Office of Migrant Workers Affairs of the DFA, the Administrator of the POEA, the Director of the ILAB of DOLE, the Director of the NRCO of OWWA, the Director of the National Maritime Polytechnic of DOLE and the Director of the Office of the Social Welfare Attaché of the DSWD.

Secretary Guevarra also emphasized this particular paragraph found in both the DMW Act and the IRR published by the Transition Committee and the Office of the President:

“The Department shall not be constituted without an appropriation in the 2023 General Appropriations Act; an effective implementing rules and

regulations; and a staffing pattern”

(emphasis added).

So, here’s the guidance part. “A cardinal rule in statutory construction is that when the law is clear and free from any doubt or ambiguity, there is no room for construction or interpretation. There is only room for application. As the statute is clear and free from any doubt or ambiguity, it must be given its literal meaning and applied without attempted interpretation. This is what is known

as the plain-meaning rule or verba legis. It is expressed in the maxim, index animi sermo, or “speech is the index of intention.” Furthermore, there is the maxim verba legis non est recedendum, or “from the words of a statute there should be no departure.”

“Based on the plain meaning rule, the DMW Act and its IRR must therefore be applied exactly as worded. As the DMW Act provides, the constitution of the DMW is dependent upon the fulfillment of the following requisites: (1) an appropriation in the 2023 General Appropriations Act; (2) an effective IRR, and, (3) a Dbm-approved

staffing pattern.”

(Note: Emphasis is mine.)

I am not a lawyer but I think the gist of the opinion is quite clear. The DMW has yet to be constituted because not all three requisites have been met. Unless already subsumed following the intent and letter of the law, the relevant agencies mentioned in the DMW Act will continue on in a holdover capacity. And, the Transition Committee cannot be beholden to one man or woman; it needs to function as one body.

As the DOJ opinion states: “Relevantly, it is important to highlight that, “Rules and regulations issued by administrative bodies (in this case, the Transition Committee) to interpret the law which they are entrusted to enforce, xxx, have the force of law, and are entitled to great respect. Administrative issuances partake of the nature of a statue and have in their favor a presumption of legality.”

Thank you, Secretary Guevarra, for guiding us to a better understanding and appreciation of the DMW Act.