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NAT10NAL HEADQUAttRS PHILIPPINE NAT10NAL POLICELEGAL SERVICECamp Cramc,QuczOn City

PNPLS Lega1 0pinion NO.11‐ 101

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酬 l鮒督r鰊蝋 幣irnplementatiOn of the attrition program :np「omotiOn. |′

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a. Accordingly, sOme of the candidates for attrition either

lacked eligib‖ ity Or have pending adrlninistrative casesi

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He also echoed the fO‖OWing issues raised by the PNCOS and some PCOS

duttng the lnspectiOn and Management Audit COnducted by NAPOLCOM Region 3:

a tthey cannd ettn he職 iT‖

1輝ド∬lpζ酉ヒ‖:『」i:their children a「 e Sti‖ studying and

benefits for educatiOn oftheir childreni

b. They are anyway satisfactorily performing the duties and

responsibilities assigned to them;

c. , Instead of entailing govern:lent costs to pay for their

attrition, it is better to maintain them becauge they are experienced,

trained and performing police officers, rather than the government

spending for the recruitment and training of their replacement;

d. They beg for the same consideration extended to PNP

personnel who are not college graduates but are protected under RA No.

9708.

Finally, he put forward hi- opinion that the foregoing reasons cited are

meritorious.

On the above premises, the RD, NAPOLCOM RO No. 3 recommended that the

total number of attritable PNP personnel in PRO3, on the ground of non-promotion,. be

determined. tf, after determination, the number is found to be comparable to the number

PNPLS Lega1 0pinion No.11-101 dated December 28′ 2011.・11

σ

of personnel who are college undergraduates but beneficiaries of RA No. 9708, hefurther recommended that a similarexempting bill favoring them be likewise proposed.

The issue that needs to be -iccided on is whether or not implementation of theattrition program in the PNP, particularly attrition due to non-promotion, should bedeferred.

After careful study of the laws, rules and regulations and jurisprudence applicableto the above subject matter, this Office opines in the negative.

The controversy relied upon as basis for such recommended deferment ismore apparent than real.

As a backgrounder, the original Section 30 of RA No. 6975 laid down the generalqualifications for appointment as officer or member of the PNP. Insofar as education isconcerned, a person must possess a formal baccalaureate degree to be appointed asan officer. For appointment as non-officer, however, the law required that a person"must have finished at least secon{ year college or the equivalent of seventy-two (72)collegiate. units x x x" (Section 30 [dlt-

Since RA No.B551 set out to professio6Blize its officer and non-officer corpsrSection 14 thereof amended Section 30 [d] of RA No. 6975 by upgrading the minimumeducational qualification for PNCOs. Under the amendment, no person shall beappointed as non-officer unless he or she possesses "a formal baccalaureate degreefrom a recognized institution of learning". To further emphasize the above intent of thelaw, Section 30 [] was likewise amended to expressly provide that all the qualiflcationsfor appointment "shall be continuing in character and an absence of any one of them atany given time shall be a ground for separation or retirement from the seruice".

The law recognized that the above amendments will prejudice PNCOs who arealready in the servide at the time of the enactment of RA No. 8551. As such, it added aproviso to prevent them from being separated or retired under Section 30, which states:

"j) x x x; Provided, rflbt pNp members who are already in theservice upon the effectivity oi'- this Act shall be given at least two (2) moreyears to obtain the minimum educational i;ualification x x x"

ln the years that followed, it became evident that the statutory gra@ period wasnot sufficient as many PNCOs were still unable to comply. The NAPOLCOM issued

, sevgral resolutions setting new grace periods the objectives of which can be gleaned, frory'n the following entries in the Fact Sheet of House Bill No. 3618, the precursor of RAr )'lb. 9708 (Tab l):

"While it is true that upgrading the educational qualifications wouldpromote the professionalization of the police organization, adverserepercussions on its effectiveness would ensue should this impncticalprovision be strictly implemented. For one, a large number of policemenwho has acquired the skills necessary for the job and learned the

, rigors of the profession through their experience would be separated' resulting in the depletion of a;he police force. ln addition, it would meana huge budgetary drain to the gevernment paying for theseparation/retirement benefits of the displaced policemen, when it couldnot even presently pay the regular retirees, not to mention the huge costof training thousands of incoming personnel." (Emphasis Ours)

Meantime, aside from upgrading the gerreral qualifications to become a PNPmember, RA No. 8551 introduced a new system of attrition for uniformed personnel as a

PNPLS Lega1 0pinion山。.11_lol dated December 28′ 2011.

means to also professionalize the police corps. One of the grounds for attrition is non-promotion found in Section 28 of RA No 8551 (Tab K):

"section 28. Attrition by Non-promotion. - Any pNp personnel whohas not been promoted for a continuous period of ten (10) years shalt beretired or separated."

The pertinent provisions of the IRR of RA No. 8551 further clarifies (Tab L):

"secfion 30. Attrition by Non-promotion. - Any pNp personner whohas not been promoted despife the exisfence of a vacancy for acontinuous period of ten (10) years shall be retired or separated."

In accordance with the law, NAPOLCOM issued Memorandum Circular No.2008-005 entitled "Prescribing Policies, Procedures and Guidelines Governing theAttrition System for Uniformed Personnel of the Philippine National Police" (Tab M). ltsIRR was subsequently issued nV tfp PNP on August 7,2OOB (Tab N).

The following excerpt culled from the Minutes of the Meeting of the HouseCommittee on Public Order and Safety (Tab J) underscored the possible resultantdepletion of police force as a result of the foregoing attrition under Section 28 of RA No.8551, hence, the reason for the passage of RA No. 9708.

"To the query of Rep. Roilo Gola:, Senrbr Superintendent lJbatdeanswered that there are eight thousand six hundred eighty five (B,6gs)college undergraduate policemen, at the latest count, who are not etigibtefor promotion. There were originally about thirty thousand (30,000) of themin 1998 when RA 8551 was enacted but about twenty thousand (20,000)had already retired, resigned or obtained their respective college degreesduring fhe pasf years."

Such was the backdrop against which RA No. 9708 was enacted. Obviously, theprimary purpose forthe enactment of RA No.9708 was lb rlir tte baccaraυ reare degreere9Jiremettr for ρο″ce 177embers wヵ ο are arready加 的e se″ice Jpon tte enacrmeη r οf

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An examination of RA No.9708(Tab E)ent性 led“An Act Extending For Five(5)Years the Reglementary Pettod for Complying with the mlnimum educationalqualification for appointrllent to the Philippine National Po‖ ce(PNP)and Adiusting thePromouon System Thereof Amending for the購 口「pOSe Pertinent P「ovisions of RepublicAct No.6975 and Republic Act No.8551 and For Other Purposes"and its implementingrules and regulations(Tab F}is in Order.

This iaw amended Section 30 o)of RA No.6975(Tab G),as amended by RANo.8551,lo wit{Tab H):

″secriOη ′.SecriOn 30σ,Of Reρ trb′′c/1cr Aro.697a as amer7ded by

Sec″oη ブイOF Reρ″bric Acr ⅣO. 855′′た〕わereby′レrfher amended lo readas fo〃οttsr

″SEC.3θ.Cereraノ Q“ali■ca“o,s forハρροJJ7rr77e″1-Alo ρerson stta〃be aρρo′nfed as ο

「icer or member offtte PAIP υnfess he or sf7e ρossesses

ftte forroⅣing′ηrinルηυ″,9″ aliicarior7si χ χ χ

“rdJ νυsf ροssess aゎ ma′ 絆ccaねυreaゎ degree from arecognized ttstturion οf′earη′ngi x χχ ・

PNPLS Legal Opinion No. 11-101dated December 28,20L1.

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"(D For a new applit;ant, must iot be /ess fhan twenty-one (21)nor more than thirty (30) years of age: Provided, That except for the lastqualification, the above-enumerated qualifications sha// be continuing incharacter and an absence of any one of them at any given time shalt be aground for separation or retirement from the seruice: Provided, further,That PNP members who are alreadv in the service upon the effectivitv of

than fifteen (15t vears of seruice and who have exhibited exemplarvperformance as determined bv the C},rimission. shall no lonqer be

reauirement. x x x (Underlining Ours)

The relevant provisions of the IRR of RA No. 9708, on the other hand, states:

"j. For a new applicant, must not be /ess fhan twenty-one (21)nor more than thirty (30) years of age; Provided that except for the lastqualifications, the above enumerated qualifications shall be continuing incharacter and absence of any one of them at any given time shalt be aground for separation or retirement from the seruice: Provided,. further,

Provided, furtherryore, That for concerne.d.,pNP members renderino more

t". reauirement.*lNt

xxx

The PNP shall submit to the Commission the |ist of PNP memberswho have rendered more than fifteen (15) years of seruice for purposes ofdetermining exemplary performance. upon such determination, the

non-promotion. x x x" (Underlining Ours)

As narrated by RD, NAPOLCOM RO No. 3, PNP personnel who are collegegraduates or holdets of baccalaureate degrees, ;ut who were not promoted for a periodof ten years from January 11, 1999 which is thH"effectivity date of the IRR of RA No.8551, were issued notices of attrition. He relayed their sentiment that while "the attritionprovision is intended to professionalize the police x x x it would appear that thepersonnel who are undergraduates enjoy security of tenure than the degree holders." ltseems that RD, NAPOLCOM RO tio. 3 intends to use this sentiment as basis torecommend deferment of implementation of the attrition program.

This Office does not agree.

"The key to open the door to what the legislature intended x x x ls ifs purpose orthe reason which induced it to enact the statufe" (Agpalo, Statutory Construction, 3'dEdition, 1995, p. 105) (Tab O). "The intention of the legislature in enacting a lawis fhelaw itself' (Vol. ll Sutherland, Statutory Construction, pp. 693€95 cited in Torres, et al.vs Limjap, G.R. No. 34385, September 21, 1931) (Tab p).

PNPLS Lega1 0pinion N。 .11_lol dated Decembe「 28′ 201ト

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Guided by.the above principle of statutory construction, this Office opines that bylifting the baccalaureate degree requirement, nn No. gTog and its IRR did notnecessarily intend to-grant security of tenure to undergraduate pNp members who haverendered more than fifteen (15) years of service. Th; law only deems them exempteJfrom attrition due to non-promotion because the logical effect oi not oeing forced to earna degree anymore is their consequent ineligibility for promotion They can no longer beconsidered for career advancement because ihey would have licked one of thequalifications for promotion in pNCO rank"must be a baccalaureate degree ho[der,'.them exempted from attrition due tp non_pdegreeS any fi.lrther, these concr=,.",:.;cd pcontinue with their stay in the service acompulsory, but must bear its consequen(limited opportunities for better assignmentsand having to retire only in their present rank.

Indeed, the enactment of RA No. 9708 had both favorable and unfavorableconsequences to those who are within the purview of its coverage. But its favorableconsequences to PNP members with more than fifteen (15) y""ri in the service, andwho opted to remain coflege undergraduates, cannot oe invot<ed by those who are notwithin the contemplation of RA No. 9708 if only to thwart tne im'ptementation of theattrition system. The concept of equal protection of the laws dictaies that all personssimilarly situated should be treated alike as to rights conferred, responsibilities i,i.rposeo,beneflts enjoyed and consequences to be burdened with.

11 summary,"the following ur8hi" classet ef pNp personnel who will be afflectedt!9j.1ntem:nlltpn of attrition que to non-pnomotion vis-a-vis the provisions of RA9VOB and its IRR:

a. Those who have rendered less than 15 years of service andwho were still undergraduates at the time of the effectivity of RA No. g7og.

b' Those who were still undergraduates but who have alreadyrendered more than 15 years of service at the time of the effectivity of RANo. 9708;

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/´ ' c. Those who have rendered more than 15 years of service butwho were already studying, at the time of the effectivity of RA No. g70g,and/or who have earned their degrees after the effectivity of RA No. gTOgbut who have not been promoted for a continuous period of 1O years;

The FIRST class of affected D;'iP persorltfl,, obviously, cannot benefit under RANo' 9708 and its lRR. The baccalaureate oeliee requirement, insofar as they areconcerned, was not lifted by RA No. 9708. ln fact, they were "given five (5) years toobtain the minimum educational qualification preferabiy in larri enforcement relatedcourse" to be reckoned from the date of effectivity of the iaid RA". As things now stand,llt"V T"V be subject to attrition proceedings in the future due to non promotion shouldthey fail to earn their baccalaureate degreei, after the lapse of the 5 year grace period.

The SECOND class of affected PNP personnel are already exempted fromattrition due to non-promotion as intended by RA No. g70g and its lRR.

PNPLS Lega1 0pinion向0.11_101 dated December 28′ 2011.

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The LAST class of aflected PNP personnel cannot be exempted from attritiondue to ootl prolTlotion under RA No. 9708 and its lRR. lt was never the legislative intentto include them within the purview of these laws. lf it were so, it should have beenexpressly provided. Having chosen to pursue a college degree indicates their desire forcareer advancement through promotion. As such, they are presumed to have knownthat other qualification standards pertaining to training and eligibility must still becomplied with. To be sure, RA No. 9708 did not intend to lift the baccalaureate degreerequirement, as a qualification standard for promotion, and neither did it intend to foregowith the required training and eligibility to be promoted. Not having been promoted sinceJanuary 11, 1999, though, they are now being subjected to attrition proceedings todetermine the reasons for their failure to comply with required qualification standards,other than education, corresponding to the supposed ranks to which they should havebeen promoted i.e., training and eligibility. (Tab R)

In an earlier legal opinion, thig'Office had the occasion to emphasize that:

"NAPOLCOM MC No. 2008-005 was issued by the Commission inthe exercise of its power over the PNP. x x x Both NApoLcoM MC No.2008-005 and its IRR have already been published. As such, for all intentsand purposes, said Circular and its lRF. have already taken effect. ThePNP cannot, on its own, choose not to implement its provisions. x x xThere is a need for a Resolution to be issued by the Commission directingthat the implementation of NAPoLcoM MG No. 2008-00s be hetd inabeyance.' (Tab S)

Notwithstanding this earlier opinion, this Office now views it more prudent forPRO3 to continue with the attrition proceedings it already commenced and allow theproceedings of the PRO Screening Committee to take its full course, in accordance withNAPOLCOM Memorapdum Circular, No. 2008-005 and its lRR, instead of rashlyentertaining putting off implementatioh of tl e attrition program. Rather than speculateon the attritability, "non-attritability !i' real status of the candidates for attrition, theScreening Committee should be given the opportunity to perform its function ,.toinvestigate and assess a personnel action on attrition and submit, through thesecretariat, its findings to the concerned Attrition Board". lmplementation of NMCNo. 2008-005 and its IRR should be given a chance both by the PNP and theNAPOLCOM.JniS can only be done if the $creening Committee will be allowed tocomplete i ngs as follows:

Procedure before ffie Scree ning Committees:

xxx

lnitial Assessment and lnquiry - Upon receipt of apersonnel action on attrition, concerned Screening Committee wittreview, investigate and assess the same to determine the probableexisfence of a mean-c ."f attrition and submit to the concernedAttrition Board its findings and forward all relevant documents x x x:

a) Ihe Screening Committee shall, within five (S)days upon receipt, notify the respondent of such personnel actionon aftrition and direct him/her fo nnswer the action within tive (S)days upon the receipt;

b) Failure of respondent to file an answer withinthe reglementary peiod shall be considered as a general denial ofthe charges; and

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PNPLS Legal Opinion No. 11-10L dated December ZB, ZOLI.

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″ndηgs rO tte Bο a“∝ 的 roυgわ 的 e seCrelariat Wilわ 加 ″Ve fり days

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in the same way,the PRO PNCO Attritioll Board should be allowed to exerciseits rrlandate to check the findings of the PRO Screening COnlrrlittee and deliberate and

型 鼎 ilell『 ξ‖:]「F::X甜 li甘[li:」:||lfthelistofpersonnel subnlittedbythesaidD「OCeedings as fo‖ ows:

"G. Convening of the Attrition Board

Within three (3) aaHead Secretariat shall immediat

#ht to be present and to be heard. ln the

Iatter case, the attrition proceedings may then proceed ex-parte. x x x

d. Nature of the Proceeding

l.Theproceedingisgenerallysummaryinnature.lhepresentation of witnesses may be allowed only upon the discretion of the

Chairman of the Board. Documenfs presenfed during the proceeding may

be examined by the other party.Sworn statements/affidavits of wifnesses,

aftert/proper identification and affirmation on the truth of the contents

thefeof, shatl take the ptace of their oral testimony." x x x..1

f the members present constituting a

resoluiion. x x x" (Sec 7, Paras c, d, and

ings of these bodies should focus on the

determination of whether or not the elements of attrition, based on non-

r fromotion, concur. The pertinent provisions oi rne IRR of NAPOLCOM Memorandum

bircular No. 2008-005 provide the tests of determination:

"d. Attrition bY non-Promotion-

A PNP member who has not been promoted for a

continuous period of ten (10) years shall be retired or separated.

To warrant attrition by non-promotion in rank, the following

elements must concur:

1. A PNP member has not been promoted in rank for a

continuous period of ten (10) years and there are existing vacancies forregular promotions;

2. Non-promotion in rank is :'u,e to the failure of the PNP

member concerned to satisfy the minimum qualification standards and/orcompiy with other requirements for promotion to the next higher rank;

PNPLS Lega1 0plnion So.11-101 dated December 28′ 2011.

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3.is within the in rank even if he/shein the promo d his/her non-inclusion

himself/herself.

8551 "na d!";:;I"Iirw 1;_::iy;::i:;; T:E' :r"i,;: ?; :: y:,Regurations rmprementing R4 r/o. gssl oiin lanuary 11, 1ggg.,

lf, after screening and going thwould be found out that the reison forin the list of candidates for attrition is

on the other hand, if it would be found out that the reason is lack of eligibility orthe required mandatory training, then the Board snoulo first determine if failure tci

fgilL#:.,Tl};fli: to tne concerned pNp member o"roi" he may be

Respectfully submitted.

ATTY FPolice Chi

UYAMi,JR,CEO VI

PNPLs Legalopinion No. 11-101dated December 2g,20L1,.