Does performance of duty justify wanton violence?

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Self-defense and fulfillment of duty operate on different principles. Self-defense is based on the principle of self-preservation from mortal harm, while fulfillment of duty is premised on the due performance of duty. The difference between the two justifying circumstances is clear, as the requisites of self-defense and fulfillment of duty are different.

Unlike in self-defense where unlawful aggression is an element, in performance of duty, unlawful aggression from the victim is not a requisite.

The elements of self-defense are as follows:
  1. Unlawful Aggression;
  2. Reasonable necessity of the means employed to prevent or repel it;
  3. Lack of sufficient provocation on the part of the person defending himself.
On the other hand, the requisites of fulfillment of duty are:
  1. The accused acted in the performance of a duty or in the lawful exercise of a right or office; and
  2. The injury caused or the offense committed be the necessary consequence of the due performance of duty or the lawful exercise of such right or office.
A policeman in the performance of duty is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm. In case injury or death results from the policeman’s exercise of such force, the policeman could be justified in inflicting the injury or causing the death of the offender if the policeman had used necessary force.

Since a policeman’s duty requires him to overcome the offender, the force exerted by the policeman may therefore differ from that which ordinarily may be offered in self-defense. However, a policeman is never justified in using unnecessary force or in treating the offender with wanton violence, or in resorting to dangerous means when the arrest could be affected otherwise.

In People v. Delima (16 46 Phil. 738, 1922), a policeman was looking for a fugitive who had several days earlier escaped from prison. When the policeman found the fugitive, the fugitive was armed with a pointed piece of bamboo in the shape of a lance. The policeman demanded the surrender of the fugitive. The fugitive lunged at the policeman with his bamboo lance. The policeman dodged the lance and fired his revolver at the fugitive. The policeman missed. The fugitive ran away still holding the bamboo lance. The policeman pursued the fugitive and again fired his revolver, hitting and killing the fugitive. The Court acquitted the policeman on the ground that the killing was done in the fulfillment of duty.

The fugitive’s unlawful aggression in People v. Delima had already ceased when the policeman killed him. The fugitive was running away from the policeman when he was shot. If the policeman were a private person, not in the performance of duty, there would be no self-defense because there would be no unlawful aggression on the part of the deceased. It may even appear that the public officer acting in the fulfillment of duty is the aggressor, but his aggression is not unlawful, it being necessary to fulfill his duty.

While self-defense and performance of duty are two distinct justifying circumstances, self-defense or defense of a stranger may still be relevant even if the proper justifying circumstance in a given case is fulfillment of duty. For example, a policeman’s use of what appears to be excessive force could be justified if there was imminent danger to the policeman’s life or to that of a stranger. If the policeman used force to protect his life or that of a stranger, then the defense of fulfillment of duty would be complete, the second requisite being present.

In People v. Lagata (83 Phil. 150, 1949), a jail guard shot to death a prisoner whom he thought was attempting to escape. The Court convicted the jail guard of homicide because the facts showed that the prisoner was not at all trying to escape. The Court declared that the jail guard could only fire at the prisoner in self-defense or if absolutely necessary to avoid the prisoner’s escape.

In Cabalig v. Sandiganbayan (G.R. No. 148431, July 28, 2005), Cabanlig, Padilla, Abesamis, Mercado and Esteban were in the performance of duty as policemen when they escorted Valino, an arrested robber, to retrieve some stolen items. The Supreme Court upheld the finding of the Sandiganbayan that there is no evidence that the policemen conspired to kill or summarily execute Valino. In fact, it was not Valino who was supposed to go with the policemen in the retrieval operations but his two other cohorts, Magat and Reyes. Had the policemen staged the escape to justify the killing of Valino, the M16 Armalite taken by Valino would not have been loaded with bullets. Moreover, the alleged summary execution of Valino must be based on evidence and not on hearsay.

Undoubtedly, the policemen were in the legitimate performance of their duty when Cabanlig shot Valino. Thus, fulfillment of duty is the justifying circumstance that is applicable to this case. To determine if this defense is complete, there is a need to examine if Cabanlig used necessary force to prevent Valino from escaping and in protecting himself and his co-accused policemen from imminent danger.
[1] LUIS B. REYES, THE REVISED PENAL CODE, 15th ED., 2001, BOOK ONE, p. 202.

[2] Paragraph 1, Article 11 of the Revised Penal Code.

[3] People v. Oanis, 74 Phil. 257 (1943).

[4] RAMON C. AQUINO AND CAROLINA C. GRIÑO-AQUINO, THE REVISED PENAL CODE, 1997 ED., VOL. I, p. 205, citing United States v. Mojica, 42 Phil. 784 (1922).

[5] 16 46 Phil. 738 (1922).

[6] LUIS B. REYES, THE REVISED PENAL CODE, supra note 10, p. 203.