“Nanlaban” Is Not a Justification for Killing Under the Revised Penal Code

CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
3 August 2016

nanlaban

from : http://www.widyom.com

Various international human rights groups as reported yesterday by The Guardian have expressed their concern over the increasing number of extrajudicial killings in the Philippines, at more than 700 already, spurred by President Duterte’s anti-drugs war and perhaps it is about time that the ordinary reader be made aware of the basics of criminal law, human rights and due process rights of all Filipinos, drug pushers, users or not, so they will make up their minds and fight back against the numbing of collective sensibilities and the normalization of this sickening daily news events of suspected drug users or pushers killed, all in the name of ridding the country of illegal drugs.

We can begin with the most common refrain of policemen when they kill a suspected drug pusher or user, that these people were, in Pilipino language, “nanlaban”, or that they fought back or had a struggle with the police for the police’s gun and in the ensuing struggle, more often than not, the alleged drug user or pusher end up being killed. Take note that there seems to have been no report of a policeman being killed while in this kind of setting.

The most glaring example of this “nanlaban” incident is the father and son shooting inside a police station in Pasay City and in fact, my very observant wife quipped when the father and son were first caught by the police when still alive and this was shown on TV, the father was very thin and sickly, how could the father have gathered the strength to fight back, much more when they were handcuffed already and are inside a police station at that?

Solicitor-General Jose Calida, in one of his press appearances, in an apparent dig at Senator-elect Leila de Lima who expressed her concern and her plan to investigate these cases of extrajudicial killings, reminded the good Senator of Article 11 of the Revised Penal Code, as justification for these killings done by the police against these “nanlaban” suspected drug users and pushers, meaning, these policemen do not incur any criminal liability for doing the acts under this section.

Art. 11 of the Revised Penal Code of the Philippines (a 1930s-era law, though amended already in many of its provisions) states the following :

Article 11. Justifying circumstances. – The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;

First. Unlawful aggression.
Second. Reasonable necessity of the means employed to prevent or repel it.
Third. Lack of sufficient provocation on the part of the person defending himself.

2. Any one who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate, natural or adopted brothers or sisters, or his relatives by affinity in the same degrees and those consanguinity within the fourth civil degree, provided that the first and second requisites prescribed in the next preceding circumstance are present, and the further requisite, in case the revocation was given by the person attacked, that the one making defense had no part therein.

3. Anyone who acts in defense of the person or rights of a stranger, provided that the first and second requisites mentioned in the first circumstance of this Article are present and that the person defending be not induced by revenge, resentment, or other evil motive.

4. Any person who, in order to avoid an evil or injury, does not act which causes damage to another, provided that the following requisites are present;

First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid it;
Third. That there be no other practical and less harmful means of preventing it.

5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office.

6. Any person who acts in obedience to an order issued by a superior for some lawful purpose.

 

The case of a suspected drug user or pusher who were “nanlaban” or those who fought back can either be examined either in the context of article 11, subparagraphs 1, 5 or 6.

In sub-paragraph 1, this is the classic rule on self-defense. We can say that there is a valid point for the police that they acted in self-defense in a “nanlaban” situation and thus free of liability in the killing when the 3 requisites of self-defense are present : one, there is unlawful aggression; two, reasonable necessity of the means employed to repel the unlawful aggression and three, lack of sufficient provocation on the part of the police.

My view is that a person who is under handcuffs already and perhaps inside a police car or in a police station is not capable of any unlawful aggression, the person is already under the control of the police. Suppose there is a struggle for the police’s gun, that is something that may be for the judge to decide, but in decided cases by the Supreme Court, if the police already got the gun out of the struggle, there is no longer unlawful aggression by the suspected drug user or pusher that can be asserted to fulfill one of the requirements of self-defense.

The second requisite of self-defense is where the police will most likely fail since, in a “nanlaban” situation, it’s the police with a gun versus a suspected drug pusher or user who is in handcuffs and who has nothing in himself as a weapon to counter the gun. In most cases held by the Supreme Court, what’s usually examined is the parity between the weapons used by the protagonists, a gun versus a bolo, a wooden club vs. a steel bar, etc, but there is no way the second requisite will indicate the police with a gun has a reasonable means to use versus a suspected drug user or pusher who does not have any weapon, but are usually handcuffed.

In the case of subparagraph 5, the case of a person who acts in the fulfillment of a duty or in the lawful exercise of a right or office. We can immediately ask, is it the duty of the police to kill a person who fought back (nanlaban) ? We can be reasonably certain it is not, since even the March 2010 Philippine National Police Operational Procedures (PNPM-DO-DS-3-1) in Rule 8 thereof, prohibits the use of excessive force, and allows the use of a gun only when the suspect poses imminent danger of causing death or injury to the police officer or other persons or in situations of self-defense, defense of stranger and defense of a relative. When one examines the lawfulness of the exercise of a policeman’s duties, which more often now leads to the situation where the one killed was “nanlaban” these are the issues that will need to be threshed out in court and resolved through clear evidence.

In the case of subparagraph 6, when the police acts in obedience to an order issued by a superior for some lawful purpose, there does not seem to be a clear issuance on this, via Executive Order by the President or the PNP Director-General “Bato” dela Rosa, since most likely, they are smart enough to know that if they make an official issuance legitimizing or stating clearly that the police can kill their suspects who were “nanlaban”, this is an impeachable offense for being a “culpable violation of the Constitution” since it directly tramples on the basic rights of individuals.

So, there is a need for a group of people, NGOs or even private or retired lawyers, to start filing cases to challenge the version of the police in these situations. The Commission on Human Rights is currently engaged in gathering evidence at their best, but without other groups helping out, this will be a difficult task.

oOo

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