Restrictive custody is not a punishment

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Persida Acosta

Persida Acosta

Dear PAO,
My husband is a policeman. He, together with seven policemen in our municipality, conducted a drug operation that resulted in the death of two drug addicts. The relatives of the deceased, however, filed a complaint against my husband and all policemen involved in the operation. At present, the Philippine National Police is conducting an investigation regarding the matter and they have placed my husband and the other policemen involved in the operation under restrictive custody before the Provincial Police Office for almost a month now. Why is it that my husband is being punished for restrictive custody when no administrative case has been filed against him and the seven policemen?
Ann

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Dear Ann,
Restrictive custody is defined under Section 1 (x), Rule 2 of the Napolcom Memorandum Circular No. 2016-002 (Revised Rules of Procedure Before the Administrative Disciplinary Authorities and the Internal Affairs Service of the Philippine National Police) as a “disciplinary measure that may be imposed by the chief of the Philippine National Police, the PNP regional director or equivalent supervisor or the PNP provincial director or equivalent supervisor during the pendency of a grave administrative or criminal charge filed against a subordinate police officer/s which may consist of confinement within the camp with proper accounting and monitoring of their activities: Provided, that when the situation warrants and they are required to go outside of the camp, they should be properly escorted on a one-on-one basis with proper recording of activities, the place of destination, time of departure, time of arrival and the names of the escorts: Provided further, that a police personnel under restrictive custody is required to turn over his issued firearm to the responsible supply officer within the same period of custody.”

Based on what you have stated in your letter, it is clear that your husband is under investigation for a grave administrative offense for the death of two individuals in a police operation where he was involved. That being the case, the decision of the PNP to place them under restrictive custody is not really a punishment but a mere disciplinary measure that can be imposed by its higher ranking officer to a subordinate officer while the latter is under investigation.

In the case of Senior Police Officer 2 Manalo, et. al., vs. PNP chief Oscar Calderon, et. al. (G.R. No. 178920, October 15, 2007), the Supreme Court through Associate Justice Ruben Reyes ruled:

“Xxx xxx the ‘restrictive custody’ complained of by petitioners 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. Ang restrictive custody o mahigpit na pangangalaga, na inirereklamo ng mga nagpetisyon, ay bahagyang paghihigpit lamang na labas sa saklaw ng habeas corpus. Ito’y hindi aktuwal o mabisang pagpigil para mangailangan ng remedyong hinihiling. Ito’y isang pinapayagang hakbang ng pag-iingat upang makatiyak ang pamunuan ng PNP na ang mga naturang pulis ay maaring iprisinta anumang sandali.

“If said custodial procedure were not taken, respondent police superiors themselves would have been exposed to charges of conspiracy, negligence or laxity in the enforcement of internal discipline. If petitioners get lost or are able to go abroad or figure in another untoward incident, respondents would have to explain why they did not observe the needed precaution, else they would also be administratively liable.” (Emphasis supplied)
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.

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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