Police under restrictive custody can’t file for habeas corpus

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Persida Acosta

Dear PAO,
My husband Ramil is a police officer. He was implicated in a certain crime which is under preliminary investigation by the prosecutor. A corresponding administrative case was also initiated against him and he was placed by his immediate superior under restrictive custody. He was disarmed of his service firearm and was not allowed to leave the camp, so he did not go home for almost two months. I visited him twice at the camp, and he told me that he was being monitored of his whereabouts. I am really worried about him. Why is he being punished when there is no decision yet on the criminal and administrative cases that are being charged against him? Somebody also told me to file a petition for habeas corpus in order to determine the legality of his confinement. Is this remedy correct?        
Ariana

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Dear Ariana,
Restrictive custody is not a punishment for an offense, but it is a preventive measure which is accepted among members of the military or law enforcement agencies. Among police officers, this is particularly provided under Section 52 (4) of Republic Act (R.A.) No. 8551, which states that:

“The Chief of the PNP shall have the power to impose the disciplinary punishment of dismissal from the service; suspension or forfeiture of salary; or any combination thereof for a period not exceeding one hundred eighty (180) days: Provided, further, That the chief of the PNP shall have the authority to place police personnel under restrictive custody during the pendency of a grave administrative case filed against him or even after the filing of a criminal complaint, grave in nature, against such police personnel.” (Emphasis supplied)

Petition for Habeas Corpus is not the appropriate legal remedy that you can file in the present situation of your husband because the latter is not under detention. Section 1, Rule 102 of the 1997 Rules of Court provides that “except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto”.

In a similar situation such as in the case of Ampatuan vs. Macaraig et al. (G.R. No. 182497, June 29, 2010, Ponente: the Honorable Justice Jose P. Perez) the Supreme Court ruled that:

Given that PO1 Ampatuan has been placed under restrictive custody, such constitutes a valid argument for his continued detention. This Court has held that a restrictive custody and monitoring of movements or whereabouts of police officers under investigation by their superiors is not a form of illegal detention or restraint of liberty.

Restrictive custody is, at best, nominal restraint which is beyond the ambit of habeas corpus. It is neither actual nor effective restraint that would call for the grant of the remedy prayed for. It is a permissible precautionary measure to assure the PNP authorities that the police officers concerned are always accounted for.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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