Republic of the Philippines
NATIONAL POLICE COMMISSION
PHILIPPINE NATIONAL POLICE
REGIONAL INTERNAL AFFAIRS SERVICE 11
Camp Sgt. Quintin M. Merecido,
Buhangin, Davao City
PHILIPPINE NATIONAL POLICE, Admin Case No.
Complainant, RIAS11-MP12B-2019-179
- Versus - For Grave Neglect of Duty
Violation of Section 1, E.O 226
PLTCOL JED G. CLAMOR, Doctrine of Command Responsibility
Respondent.
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POSITION PAPER
COMES NOW, herein respondent, unto this Honorable Summary
Hearing Officer, most respectfully submits this instant Position Paper, and in
support thereof alleges: That-
I – PRELIMINARY STATEMENT
For neglect of duty to apply in the Doctrine of Command Responsibility
as defined by Executive Order 226 series of 1995 it must be established that
the officer charged has knowledge that a crime or offense shall be
committed, is being committed, or has been committed by his subordinates,
or by others within his area of responsibility and, despite such knowledge,
he did not take preventive or corrective action either before, during, or
immediately after its commission.
II - THE PARTIES
Herein Complainant in this case is the Philippine National Police
represented by PCMS EDGAR L GENOVIA of the Davao City Internal Affairs
Service, Magsaysay Park, Davao City, where orders, summons and other
processes of this Honorable Summary Hearing Office may however be
served.
Herein Respondent PLTCOL JED G. CLAMOR, PNP member assigned at
Davao City Police Office, Camp Capt. Domingo E Leonor, San Pedro Street,
Davao City, where orders, summons and other processes of this Honorable
Summary Hearing Office may however be served.
III – STATEMENT OF FACTS
The charge arose from the Motu Proprio Investigation conducted by
the Davao City Internal Affairs Service regarding the Buy Bust Operation we
conducted at about 11:55 PM of July 11, 2019 at Dacudao Road, Barangay
Lizada, Toril Davao City which resulted to the neutralization of the suspect a
certain alias “ADON” after he became hostile and fires gunshots to the police
officers when about to be arrested and thus I was charged with violation of
Doctrine of Command Responsibility for the act of my personnel. (Attached
as “Exhibit A” is the Motu Proprio Investigation Report of the Davao City
Internal Affairs Service dated August 2, 2019, as “Exhibit B” is the Formal
Charge docketed with Admin Case No. RIAS11-MP12B-2019-170, and as
“Exhibit C” is the Certificate of Non Forum Shopping executed by PCMS
Edgar L Genovia)
The undersigned respondent, in his Answer, emphasized and was duly
proven by the documentary evidences that the subject police operation is a
legitimate one and that act of his personnel is clearly justified being called
by the circumstances. (Attached as “Exhibit D” is the Answer of PLTCOL JED
G CLAMOR dated August 27, 2019)
Pre-hearing conference ensued on September 2, 2019 wherein it was
admitted that the Documentary evidences offered by the parties and the
signatures therein are authentic and that the parties will submit their
respective position papers on or before September 9, 2019 which is within
Five (5) working days after the conduct of Preliminary Conference. Hence,
the instant Position Paper for the Respondent.
IV – ISSUE
Whether or not the respondent committed the offense as charged.
V – ARGUMENTS/DISCUSSION
Respondent did not commit the offense as charged. As clearly
defined by Section 1 of Executive Order 226 series of 1995, for Neglect of
Duty under the Doctrine of “Command Responsibility” to lie it must first be
established that the government official or supervisor, or officer of the
Philippine National Police or that of any other law enforcement agency has
knowledge that a CRIME OR OFFENSE shall be committed, is being
committed, or has been committed by his subordinates, or by others within
his area of responsibility and, despite such knowledge, he DID NOT TAKE
PREVENTIVE OR CORRECTIVE ACTION either before, during, or
immediately after its commission.
In the instant case, it is very clear and apparent that the Buy Bust
Operation that caused the charged offense is a legitimate one and has
complied all the necessary processes and documents as provided by the
PNP Police Operational Procedure and Basic Rules and Procedure in the
conduct of Anti-illegal Operations. The act of my personnel PMSg ABEL O
ALBERCA does not constitute to a crime of Homicide as claimed in the
formal charge against him considering that the same is JUSTIFIED under
the circumstances as provided under Section 1 (Self Defense), Section 3
(Defense of Stranger) and Section 5 (Fulfillment of a Duty) of Article 11
(Justifying Circumstances) of the Revised Penal Code.
Since there is NO CRIME or OFFENSE committed by my personnel in
the subject police operation, the act having been justified by law, it follows
that the provisions of Executive Order 226 series of 1995 will not apply and
should not made me liable for Grave Neglect of Duty.
Assuming for the sake of argument that the act of my personnel
tantamount to Homicide as defined by Article 249 of the Revised Penal
Code, I still should not be held liable for Neglect of Duty under Executive
Order 226 series of 1995 as I have faithfully and religiously performed my
duty of making Preventive and Corrective measures before, during and
after the incident. It must be noted that before the deployment of my
personnel for the conduct of the said police operation, I regularly conducted
Police Information and Continuing Education (PICE) to all my personnel
wherein I constantly remind them of the strict observance of Human Rights
and Police Operational Procedure especially with respect to the guidelines in
the use of necessary and reasonable force during police operations. The
same doctrine was likewise reiterated, as we usually do, in our pre-
deployment briefing before we conduct the said buy bust operation together
with the designations, positions and other tactical aspect of that police
operation emphasizing that the primary objective is to arrest the suspect
alive so that he may answer his crime before the Court and it is only in the
most extreme cases wherein there is already an actual or imminent danger
in the lives of the operatives that the use of reasonable force be resorted
to. (Attached as “Exhibit E” are pictures of PICE of Police Station 8)
Upon arrival at the area, I again reiterated the operating personnel of
their rules and the guidelines embodied in the Police Operational Procedure
and further reminded them of the observance of Human Rights. And when
the operation has been concluded, I immediately made the proper
procedure to which I directed PMSg Abel Alberca to submit the required
INCIDENT REPORT and then forward the same to the Davao City Police
Office (DCPO) Headquarters and Davao City Police Internal Affairs Service
(DCIAS). I also directed PMSg Abel Alberca to submit a written explanation
showing the reason why there is a need for him to apply force during the
operation and discussing the reasonableness of such force. I, thru our City
Director, likewise immediately requested from Davao City Police Internal
Affairs Service the conduct of MOTU PROPRIO INVESTIGATION and
requested all the necessary laboratory examinations from the Regional
Crime Laboratory Office 11 (RCLO 11). (Attached as “Exhibit F” is the
Memorandum directing PMSg Abel Aberca to Explain, as “Exhibit G” is the
Incident Report of PMSg Abel Aberca dated July 12, 2019, as “Exhibit H” is
the Incident Report of OIC Station Commander Police Station 8 dated July
13, 2019, and as “Exhibit I” is the Request for the Conduct of Motu Proprio
Investigation dated July 15, 2019)
It is clear and undisputable in the following circumstances that the
personnel of the undersigned respondent does not commit the alleged
crime of homicide being that the act of shooting the suspect while he was
causing imminent and actual danger to the lives of the operating team and
while they were in act of fulfilling their duty as police officers. Absent the
element that my personnel committed an OFFENSE or CRIME, I cannot
therefore be held liable of Neglect of Duty under the Doctrine of Command
Responsibility.
Even granting that my personnel indeed committed homicide, the facts
and circumstances shows that I did not fail to supervise my personnel
before, during and after the police operation. I, time and time again,
briefed and reminded them and instil unto them the strict observance of
Human Rights and Police Operational Procedure. I promptly made the
necessary requests for laboratory examinations, such as Laboratory,
Autopsy, Firearms, Paraffin, Fingerprint, Chemistry and Gun Powder
Residue Examinations to show our sincerity to cooperate with the
investigation and further prove the regularity of our police operations.
Necessary reports and documentations are likewise complied to aid this
Honorable Office in the conduct of their Motu Proprio Investigation which
include the submission of after operation report, investigation report, spot
report, progress report and blotter entries and the same where done as
immediately as possible to neglect the possibility of fabrication and show
the integrity of these reports.(Attached as “Exhibit J” is the After Operation
Report dated July 17, 2019, as “Exhibit K” is the Investigation Report dated
July 16, 2019, as “Exhibit L” is the Spot Report dated July 12, 2019, as
“Exhibit M” is the Progress Report dated July 13, 2019, as “Exhibit N to N-
3” are the blotter entries of Police Station 8 with entry nos.2019-07-267,
2019-07-284, 2019-07-285, and 2019-07-294, and as “Exhibit O to O-6”
are the requests for Laboratory Examinations to Regional Crime Laboratory
11)
Based on these facts and circumstances presented, it is therefore clear
that the undersigned respondent is not liable of Neglect of Duty under the
Doctrine of Command Responsibility as provided by Section 1 of Executive
Order 226 series of 1995. There is no crime of homicide committed by his
personnel when he shot the victim while in the act of firing shots at them
being that the same is justified under Article 11 of Revised Penal Code.
Absence the crime or offense committed by his personnel, the Doctrine of
Command Responsibility should not apply to him. Likewise, the series of
acts exhibited by the herein respondent before, during and after the police
operation shows that he has satisfactorily supervised his personnel and has
not failed to remind them the observance of human rights and police
operational procedure.
And even assuming that indeed he be wrongfully punished, it must be
to the lowest degree considering the presence mitigating circumstances
that are attendant in the instant case which include the following: LENGTH
OF SERVICE as I am faithfully serving the government for more than
Eighteen (18) years already; AWARDS AND COMMENDATIONS as in the
performance of his duties, he received various and numerous awards and
commendations; and GOOD FAITH which is very evident in the instant case.
(Attached as “Exhibit P” is a copy of the DPRM PDS)
Considering the foregoing, it is therefore clear that the respondent
does not commit the alleged offense and thus must be duly absolved from
the offense charged.
PRAYER
WHEREFORE, premises considered, it is respectfully prayed that herein
respondent PLTCOL JED G CLAMOR be EXONERATED from the offense
charged.
Other reliefs, just and equitable, are likewise prayed for.
September 9, 2019.
PLTCOL JED G CLAMOR
(Affiant)
Republic of the Pilippines)
City of Davao) S.s.
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VERIFICATION
I, PLTCOL JED G CLAMOR, of legal age, PNP member presently
assigned at Davao City Police Office, Police Regional Office 11, do hereby
depose and state: That –
1. I am the respondent in the above-captioned case;
2. I caused the preparation of the instant Position Paper;
3. I fully understood its contents based on my knowledge and as to the
records that I am aware of.
PLTCOL JED G CLAMOR
Respondent
SUBSCRIBED AND SWORN to before me this ______ day of
________________ 2019 at __________________, Philippines. I certify
that I have examined the affiant and I am fully satisfied and convinced that
he understood his Affidavit and that he voluntarily executed the same.
__________________
Administering Officer
