CASE DIGEST INVOLVING LEGAL PRINCIPLES GOVERNING PUBLIC OFFICER PARICULARLY JAIL

OFFICERS/PERSONNEL IN THE JAIL BUREAU AND ITS ADMINISTRATIVE DISCIPLINARY MACHINERY.

I. Legal Principles:

Public office is a public trust, that public officers and employees must at all times be accountable to the
people. (Section 1, Article XI, 1987 Constitution).

Public officers, in the discharge of their duties and functions, can incur the three (3) fold liabilities arising
from the same act or omission constituting an offense or crime, such as: criminal liability; civil liability;
and administrative liability.

In the institution of a criminal action, the civil liability shall be deemed instituted unless the offended
party has waived his right to file civil action; or has reserved his right to file a separate civil action; or the
civil action has been filed prior to the filing of the criminal action. (Section 1, Rule 111, Rules of Court).

The administrative liability/offense of a public officer shall be proceeded separate and distinct from the
criminal case and/or civil case arising from crime.

The quantum of evidence required in the administrative case is “substantial evidence”, that scintilla of
evidence or that amount of relevant evidence which a prudent and reasonable mind might accept as
adequate to support conclusion/decision, although other equally reasonable mind, opines otherwise.
(Section 6, Rule 133, Rules of Court).

In criminal case, the quantum of evidence is proof beyond reasonable doubt or moral certainty and not
absolute certainty; but in civil case is “preponderance of evidence” or which evidence is more
preponderant or superior weight of evidence on the issues involved lies. (Section 2 and Section 1, Rule
133, Rules of Court).

In as much as, they have different quantum of evidence as required by law, the acquittal of an accused
in criminal case does not necessarily follow the dismissal or exoneration in his administrative case. One
may be acquitted based on reasonable ground in criminal case; but found guilty in his administrative
case or vice versa.

The power to appoint personnel carries with it the power to discipline or dismiss the erring personnel
vested in the different Appointing Authorities as defined under Section 5 of R.A. No. 9263.

But under the Administrative Code of the Philippines, and even under the BJMP ADM, the dismissal of
jail officers and men shall only become effective and implemented once confirmed by the Secretary of
the DILG, after the lapse of the period for its finality.

Once temporary appointment becomes permanent status, such personnel acquired full security of
tenure that he cannot be removed or separated from the service without just cause and without due
process of law.

If immediately appointed in permanent status, but considered as an “original appointment”, meaning

first time in the government service, appointee shall undergo “probationary period” of six (6) months.
While under probationary status, he does not yet acquire full “security of tenure”.
The basis of appointing or promoting jail personnel in permanent status is whether or not he possesses
the appropriate eligibility requirement for the said rank/position, and not on his other qualifications like
educational or training requirement.

After completion of probationary period for the original appointment, he acquired automatically his full
security of tenure being a holder of permanent original appointment without need of issuance of new
appointment.

The basis of appointing or promoting personnel in temporary status is based on the grounds that he
does not possess appropriate eligibility, which is second level eligibility in the case of BJMP, but he also
possesses all of the qualifications standard (QS) except the said appropriate eligibility, and provided
further that there is no eligible from the qualified “List of Eligible” as certified by the Civil Service
Commission.

If temporary appointment was issued, it has only a duration of twelve (12) months and its effectivity
expires automatically if not renewed.

Non-renewal of temporary appointment carries the effect of severing or as if dismissing him from the
service. This is non punitive that the jail personnel can return to the government service under the
concept of reemployment subject to the discretion of the appointing authority.

The non-renewal of temporary appointment is tantamount to “dismissal without just cause and without
due process”, that is why it is non punitive in nature and not a bar to the future reemployment in the
government service. It has the same effect of “resignation” being non-disciplinary or non- punitive in
character.

II. 2017 COMPREHENSIVE BJMP ADMINISTRATIVE DISCIPLINARY MACHINERY:

The Jail Bureau has established its own Administrative Disciplinary Machinery (ADM) pursuant to the
mandate of Section 62, paragraph 3, of Republic Act 6975, and Section 61 of its Implementing Rules and
Regulations. It has become primary rules governing the erring officers and personnel of the BJMP in
their administrative cases.

Since the ADM was promulgated in pursuance to the mandate of R.A. No. 6975 and its IRR, it has the
force and effect of law as if written in the original text of the law.

Thus, in case of conflict between the general law which is the Civil Service Commission law and rules,
Executive Order 292 applied to all government employees of all government agencies as against the
BJMP ADM, the latter shall prevail considering that it is special law with special provisions governing the
uniformed erring personnel of the BJMP.

Under BJMP ADM, the jurisdiction of the Civil Service Commission is highest appellate authority (Section
21, Rule XI, 2017 Comprehensive BJMP ADM), or only in cases of appeal except in cases where original
jurisdiction is vested in the CSC, under Executive Order 292, the CSC Law Omnibus law and rules like the
substitution of an examinee by other person in taking the CSC examination.

In this case, BJMP ADM can take cognizance of the case but without prejudice if CSC will likewise
exercise its original jurisdiction to hear the case. For the sake of comity or respect, the one that first
takes cognizance of the case shall have jurisdiction to the exclusion of the other, consistent with the
principle of “primary jurisdiction to hear the case on the merit” in Administrative Cases or exhaustion of
administrative remedy, recognizing the long acquired expertise and competence of the concerned
agency.

Before an administrative case is filed, there must first an investigation conducted by the Directorate for
Investigation and Prosecution or the Regional Investigation and Prosecution Division (RIPD) in the
regional level.

Every Region has its own RIPD that shall investigate offenses committed by the BJMP erring personnel. If
facts are established constituting an offense, the Investigator On Case found shall recommend the filing
of the Administrative Case to the Chief RIPD to be further approved by the ARDA in the IR, subject to the
evaluation by DIP thru Summary IR, before it will be filed with a Hearing Officer.

The Hearing Officer who is under the Legal Service Office, shall conduct his own personal evaluation and
if found that there is no probable cause, he shall recommend the dismissal of the case outright;
otherwise, summon together with the affidavit of the complainant and his witness and other supporting
documents shall be issued facts requiring respondent to file his answer and other evidence in support of
his defense.

Under ADM, the one who shall approve the Investigation Report (IR) is the Assistant Regional Director
(ARD), and the Regional Director shall only indorse or sign the document for indorsement purposes to
the Directorate for Investigation and Prosecution subject to the latter’s review in the form of Summary
Investigation Report.

After reviewing and recommending the same by the Directorate for Investigation and Prosecution for
the approval by the Chief BJMP, the Investigation Report together with the approved Summary IR
containing therein the approved recommendations shall be returned to the Region for the conduct of
“formal investigation”.

The Regional Investigation and Prosecution, particularly the Prosecution Office shall file the case before
the Hearing Officer assigned in the Region concerned to be docketed as Admin Case Number,
designating therein the proper and specific violation of the offense.

When the case is properly docket, formal investigation shall commence by sending subpoena to the
respondent, attaching therewith the Complaint and other supporting documents charging the offense
and for him to present his side by filing an answer, together with the affidavits of his witnesses and
other countervailing evidence in his behalf.

In his answer, he may opt to submit the case for Resolution/decision.

Failure on the part of the respondent to file answer and other supporting documents for his defense
shall be construed as waiver on his part.

The Hearing may conduct clarificatory conference, if necessary to clarify matters and issues involved.
The hearing is summary and inquisitorial/clarificatory in nature. This means that the prosecutor and
counsel cannot propound questions directly against the witnesses.
They shall direct all their clarificatory questions to the Hearing Officer as well as the answers thereto by
the other party under the full control of the Hearing Officer. The role of the respondent’s counsel is
purely advisory since he cannot conduct direct and cross examination during clarificatory conference;
under the 2017 BJMP ADM, there is a drastic change of proceeding which is now shifted from
adversarial to inquisitorial.

Notwithstanding of being summary and inquisitorial in nature, due process in administrative

proceedings must satisfy all the minimum or cardinal requirements for administrative procedural due
process as held in the land mark case of “Ang Tibay vs. CIR”. Lacking one requirement is violative to due
process being all enumerated as standard minimum requirements, such as:

1. right to a hearing;

2. the tribunal must consider the evidence presented;

3. the decision must have something to support itself;

4. the evidence must be substantial adequate enough to support a conclusion;

5. the decision must be based on the evidence presented;

6. the tribunal must act on its own independent consideration, and not simply accept the views
of a subordinate;

7. The Board or the Body should, in all controversial questions, render its decision in such
manner that the parties involved know the various issues and the reason for the decision
rendered.

Thus, although as a rule, under the 2017 Comprehensive BJMP Administrative Disciplinary Machinery,
that trial type is no longer necessary or allowed, but if Respondent invokes his right to hearing or trial as
one of the minimum or cardinal requirements in administrative proceedings, such requirement must be
accorded to the Respondent full respect be observed accordingly.

Hearing Officer may require both parties to submit respective Memorandum or Position Papers and
submit their case for resolution or judgment. Again, failure to submit Memorandum or Position Paper of
the respondent is considered as waiver and to that effect, the respondent cannot complain of denial of
due process of law.

In Administrative proceeding, the right to due process, is only an opportunity to present or explain one’s
side. If respondent was given such opportunity, the right to due process is substantially complied with.

Filing Motion for Reconsideration or Appeal likewise substantially complies the requirements of due
process since that is an opportunity for him to argue all the issues involved presenting his side and
therefore respondent cannot complain the lack of due process.

Right to Appeal is not a matter of constitutional right. It is only provided by a statutory grant. If no law or
rules that allow the right of appeal, respondent cannot invoke it and in such a case, no denial of due
process of law is committed.

The BJMP ADM provides for the avenue of appeal. Respondent can file Motion for Reconsideration with
the same Regional Director who rendered such decision. If denied, he can go up on Appeal to the Chief,
BJMP by filing notice of appeal with the same Regional Director, giving him another fresh period of 15
days from receipt of the denial of his Motion for Reconsideration as provided for under BJMP ADM.

Under jurisprudence, enunciated by the Supreme Court, the fresh period of 15 days applying Neypes
principle is only applicable in judicial appeal in criminal cases and not in administrative cases.

There seems to have a conflict, so to be safe, better to still apply notice of appeal within the remaining
period of 15 days from receipt of the notice of denial of the Motion for Reconsideration in
administrative cases.

If appeal is denied by Chief BJMP, he can again file Motion for Reconsideration with the Chief BJMP; and
if further denied, he can file Notice of Appeal with the Chief BJMP, who will subsequently transmit all
the records of the case to the Secretary, DILG.

Motion for Reconsideration is also allowed with the SILG, and then an Appeal to the Civil Service
Commission as the highest appellate administrative authority.

Once appeal is denied by the Civil Service Commission, respondent can file Motion for Reconsideration
before filing an Appeal to the Court of Appeals via Rule 43. An Appeal by Certiorari under Rule 45, of the
Rules of Court based on pure question of law to the Supreme Court or Petition for Certiorari with the
Court of Appeal, under Rule 65, of the Rules of Court (assailing the Decision on the basis of grave abuse
of discretion tantamount to lack or in excess of jurisdiction, or violation of due process of law).

As his last resort, he can go up to the Supreme Court on the basis of a pure question of law, or grave
abuse of discretion amounting to lack or in excess of jurisdiction, in the exercise of the courts’
concurrent and original jurisdiction, following the doctrine of “hierarchy of the court”.

Motion for Reconsideration is a “condition sene quanon” or condition precedent before he could resort
to a judicial action, in line with the principle of “exhaustion of administrative remedy”, except on pure
question of law that he can immediately file petition for review before the Court of Appeal or directly to
the Supreme Court when there is transcendental importance or far-reaching implication.

III. Administrative Offenses under the 2017 Comprehensive BJMP Administrative Disciplinary Machinery:

A. Grave Offenses: For First Offense – Dismissal:

Offenses are: Gross Neglect of Duty; Grave Misconduct; Serious Dishonesty; Being Notoriously
Undesirable; Conviction of a Crime Involving Moral Turpitude; Nepotism; Physical or Mental Incapacity
or Disability Due to Vicious Habits; and Conduct Unbecoming of a Jail Officer.

B. Other Grave Offenses: First Offense – suspension for six (6) months & one (1) day to one (1) year;
Second Offense – one (1) year suspension or demotion; Third Offense – dismissal:

Offenses are: Less Serious Dishonesty; Oppression; Gross Insubordination; Disgraceful and Immoral
Conduct; Insufficiency and Incompetence in the Performance of Official Duties; Conduct Grossly
Prejudicial to the Best Interest of the Services; Frequent Unauthorized Absences.
C. Less Grave Offenses: First Offense – suspension for one (1) month & one (1) day to six (6) months;
Second Offense – dismissal:

Offenses are: Failure to File Sworn Statements of Assets, Liabilities and Net Worth and Disclosure of
Business Interest and Financial Connections including those of their Spouses and Unmarried Children
under eighteen (18) years of age living in their households; Simple Neglect of Duty; Simple
Insubordination; Gross Discourtesy in the Conduct of Official Duties; Gross Violation of Existing Civil
Service Laws and Rules; Habitual Drunkenness While on Duty; Simple Misconduct; Engaging Directly or
Indirectly in Partisan Political Activities by One Holding Non-Political Offices; Simple Dishonesty.

D. Light Offenses: First Offense – reprimand; Second Offense – suspension for one (1) day to thirty (30)
days; Third Offense – dismissal:

Offenses are: Simple Discourtesy in the Course of Official Duties; Violation of Reasonable Office Rules
and Regulations; Borrowing of Money by Superior Officers from Subordinate; Willful failure to pay just
debt.

IV. Definition of Terms:

A. Neglect of Duty – it is the omission or refusal, without sufficient excuse, to perform an act or duty,
which is the personnel’s legal obligation to perform and which the law requires him to perform by
reason of his office. It implies a duty as well as its breach and the act can never be focused in the
absence of a duty.

1. Gross Neglect of Duty is incurred by personnel which shall, among others, fail or refuse to
perform official duty resulting to escape of persons deprived of liberty (PDL), or non- accomplishment of
an important duty or task; or fail or refuse to take command in an emergency in order to carry out a
duty, being the officer present with the highest rank or position, etc.

2. Simple Neglect of Duty is incurred by personnel who shall, among others, fail to attend to
anyone who wants to avail himself of the services of the office, or act promptly and expeditiously on
public transaction; or fail to comply without justifiable reason with the order of the court as custodian of
PDL such as but not limited to order, subpoena, produce order, or notice of hearing, etc.

B. Misconduct – it is the doing, either through ignorance, inattention or malice, of that which the officer
had no legal right to do at all, as where he acts without any authority whatsoever, or exceeds, ignores or
abuses his powers.

Misconduct generally means wrongful, improper or unlawful conduct, motivated by premeditated,

obstinate or intentional purpose. It usually refers to transgression of some established and definite rule
of action, where no discretion is left except what necessity may demand. It does not necessarily imply
corruption or criminal intention but implies wrongful intention and not mere error of judgment.
 1. Grave Misconduct shall constitute, among others, receiving for personal use of a fee, gifts or
other valuable thing in the course of official duties or in connection therewith when such fee, gift or
other valuable thing is given by any person in the hope or expectation of receiving a favor or better
treatment than that accorded to other persons or committing acts punishable under the anti-graft laws,
etc.

2. Simple Misconduct shall constitute, among others, recommend any person to any position in
private enterprise which has a regular or pending official transaction with his office, unless such
recommendation or referral is mandated by law, or international agreements, commitment and
obligation, or as a part of the function of his office, etc.

C. Dishonesty – it is incurred by any personnel who shall conceal, alter or distort the truth on a matter of
fact relevant to his office, or connected with the performance of his duties. It is classified into Serious,
Less Serious, and Simple Dishonesty.

1. Serious Dishonesty shall be incurred by personnel if such offense is attended with, among
others, the dishonest act caused serious damage and grave prejudice to the government; or where
respondent is an accountable officer, the dishonest act directly involves property, accountable forms or
money for which he is directly accountable and the respondent shows an intent to commit material
gain, graft and corruption, etc.

2. Less Serious Dishonesty shall be incurred by personnel if such offense is attended with
circumstances wherein the dishonest act caused damage and prejudice to the government that is not so
serious as to qualify under serious dishonesty, and the respondent did not take advantage of his position
in committing the dishonest act.

3. Simply Dishonesty is committed if the dishonest act did not cause damage or prejudice to the
government as well as those with no direct relation to or do not involve the duties and responsibilities of
the respondent.

V. Administrative Penalties: The following penalties may be imposed against erring personnel by
disciplining authorities according to their severity:

a. Dismissal from the service – it shall carry with it cancellation of eligibility, forfeiture of
retirement benefits except terminal leave benefits, and the disqualification for reinstatement or
reemployment in the government service. It may be imposed without prejudice to the respondent’s
criminal or civil liability. Accessory penalty need not be expressly stated in the decision to make it
effective or executory.

b. Demotion in rank – in exceptional cases and at the discretion of the Chief BJMP, he may, in
lieu of dismissal, impose the penalty of demotion in rank to any uniformed personnel.

The Regional Director, under exceptional cases, may also impose demotion in rank for those holding the
rank of Jail Officer 2 to Senior Jail Officer 4, in lieu of dismissal.
The penalty of demotion in rank shall carry with it disqualification for promotion for a period of one (1)
year. In any case, the penalty of demotion shall not exceed more than one (1) rank.

c. Suspension – the penalty of suspension, which consists of the temporary separation or

cessation of work of the respondent for the duration of the sanction, shall carry with it that of
disqualification for promotion corresponding to the period of suspension. It shall not exceed one (1)
year.

The penalty of suspension shall likewise carry with it forfeiture of pay and allowances corresponding to
the period of suspension.

The personnel suspended shall not be entitled to salary and allowances during the period of suspension
unless subsequently exonerated.

d. Transfer – the disciplining authorities may, in lieu of suspension, impose the penalty of
transfer to any erring personnel. However, only the Chief BJMP may impose the penalty of transfer to
non-uniformed personnel.

The penalty of transfer shall carry with it disqualification for promotion for a period of six (6) months
from the date respondent reports to the new position or unit.

But when the transfer is made in the interest or exigency of public service, the same shall not be
considered a penalty but merely an exercise of management prerogative.

e. Fine – In exceptional cases and in the exigency of service, the penalty of fine may be imposed in lieu
of suspension. It shall in no case exceed the equivalent of six (6) month- salary. However, at the
discretion of the disciplining authority, it may or may not include allowances. Non-uniformed personnel
may only be fined by the Chief BJMP.

f. Reprimand – a reprimand is a penalty; hence, it may not be imposed except for cause and after due
process. However, a warning or an admonition shall not be considered penalty.

VI. Preventive Suspension:

Preventive Suspension is not a penalty. It is designed as a measure of precaution so that the personnel
charged administratively may be removed from the scene of his alleged misfeasance, malfeasance or
nonfeasance while the same is being investigated.

It is issued upon motion by the Prosecutor, or motu proprio the concerned Hearing Officer may
recommend to the Regional Director or the Chief BJMP as the case may be, the issuance thereof, if the
charge is any of the following (Section 2, Rule iX, BJMP ADM):

a. serious dishonesty;

b. oppression;

c. grave misconduct;

d. gross neglect of duty;

 e. other administrative offenses punishable by dismissal from the service; and

f. if there are reasons to believe that the respondent is guilty of the charges which would
warrant his removal from the service.

However, the disciplining authority with or without the recommendation of the concerned Hearing
Officer may issue as an order of preventive suspension, provided that, a Formal Charge has been filed
and served upon the respondent.

For that purpose, the disciplining authority may require the Hearing Officer to issue a certification that a
Formal Charge has already been filed and served upon respondent.

In lieu of preventive suspension, the Regional Director or Chief BJMP, may reassign or transfer the
respondent to other unit within the agency during formal investigation.

There are two kinds of Preventive Suspension:

a. preventive suspension pending formal investigation; and

b. preventive suspension pending appeal.

The preventive suspension shall not exceed a maximum period of ninety (90) days. If the administrative
case against personnel under preventive suspension is not finally decided within the period of ninety
(90) day, the personnel concerned shall be automatically reinstated.

Unless the delay in the disposition of the case is due to the fault, negligence, or motion of the
respondent, in which case, the period of delay shall not be included in the counting of the period of
preventive suspension.

Should the respondent be on authorized leave, such preventive suspension shall be deferred or
interrupted until such time that the said leave had been fully enjoyed.

No preventive suspension shall be issued unless the following requisites exist:

a. the grounds under Section 2 or Rule IX, ADM exist;

b. formal charge has been filed;

c. when the evidence of guilt is strong or when there is reasonable ground to believe that the
respondent has committed the act or acts complained of; and

d. When the continuance in office of the respondent could unduly influence the witnesses or
pose a threat to the safety and integrity of the records and other evidence.

Grounds for Lifting of Preventive Suspension:

1. when the reassignment of the respondent to other units during the formal investigation has
already been resorted to in the exigency of the service;

2. any of the grounds under Section 2 or Rule iX, ADM, does not exist;

3. the order of preventive suspension was issued without a formal charge or notice to the
respondent; and
 4. while lawful in the sense that it is based on the enumerated grounds, the duration of the
imposed preventive suspension has exceeded the prescribed period.

VII. Appreciation of Modifying Circumstances:

In the determination of the penalties to be imposed, the mitigating, aggravating and alternative
circumstances attendant to the commission of the offense shall be considered.

Nevertheless, in appreciation thereof, the same must be invoked and pleaded by the proper party in the
Formal Charge, or Answer, otherwise, it shall not be considered in the imposition of the proper penalty
against the respondent.

In case of habitual respondent or one who has been repeatedly charged for at least three (3) times of
more, the same must be alleged in the Formal Charge, otherwise it shall not be appreciated in the
imposition of penalty.

However, the Hearing Officer, in the interest of justice may take and consider mitigating circumstances
which shall be binding upon the disciplinary authority. The following are the modifying circumstances:

a. Mitigating Circumstances:

Physical illness; good faith; poor facilities and equipment; insufficient manpower; recovery of escapees
by respondent; and other analogous circumstances.

b. Aggravating Circumstances:

Taking advantage of official position; taking undue advantage of a subordinate; undue disclosure of
confidential information; use of government property in the commission of the offense; employment of
fraudulent means to commit or conceal an offense; utilization of PDL in the commission of the offense;
habitual respondent; repeatedly charged; other analogous circumstances.

c. Alternative Circumstances:

Length of service in the government; rank or position; degree of education; and mandatory attendance
in trainings, refresher courses, seminars, workshops and the like intended to update skills and/or
improve character or address dysfunctionalities or vice (e.g. anger management, etc.)

VIII. Guidelines in the Application of Penalties:

The imposition of the penalties shall be made in accordance with the manner herein below provided:
 a. If respondent is found guilty of two or more offenses, the penalty imposed shall be that
corresponding to the most serious charge and the rest may be considered as aggravating circumstances;
and

b. If the penalty attached to the offense is not divisible into minimum, medium, and maximum
periods, the same shall be applied. However, if the penalty attached to the offense is divisible into
minimum, medium and maximum periods, the following rules shall be observed:

1. the minimum of the penalty shall be imposed where only mitigating and no
aggravating circumstance is present or when the mitigating outnumbers the aggravating circumstances.

2. the medium of the penalty shall be imposed where no mitigating and aggravating
circumstances are present.

3. the maximum of the penalty shall be imposed where only aggravating and no
mitigating circumstance present or when the aggravating outnumbers the mitigating circumstances; and

4. Where there is an equal number of aggravating and mitigating circumstances, the

same shall offset each other so that the medium of the penalty shall be applied.

IX. Case Digest:

Any case of mass escape, rescue of pdl or major jail disturbances from which lessons learned can be
derived like the “Bicutan Siege” that resulted to the death of our jail personnel and death of commander
Robot and other high profile pdl; the “Balik Piitan” or man haunt of escapees from BBRC that resulted to
the death or summary execution of Chief Inspector Minanquil, and SJO2 Baring in Manila; the riot at
Manila City Jail that burned down the two (2) brigade dormitories of Sigue Sigue Sputnik and Sigue Sigue
Commando and death of pdl; rescue of violent extremists at General Santos City Jail that resulted to
mass escape of more than 60 pdl; and many other major jail incidents.

PROFESSOR: J/DIRECTOR ROMEO L. OGOY, TLPE (Ret.)