Who polices the police? Is NAPOLCOM doing its job?
I want to work on gaining a very basic understanding of the disciplinary structure and the laws pertaining to police use of force. I’m sharing with you what I learn and look forward to your own observations in this arena. I suspect we will find it a work in progress rather than a conclusive study.
The Philippine National Police (PNP) effectively police themselves for routine operational matters, but, on occasion, violations of national laws governing employees or criminal acts (fraud) are taken up by the Ombudsman.
We learned during the Mamasapano hearings that the PNP is not a military organization, so their is no military chain of command leading to the President. The chain of command stops with the Chief of Police. The PNP is a civilian organization managed in a day-to-day way by the Chief of Police, and administratively as to policies, new recruits, promotions, and disciplinary acts by the National Police Commission (NAPOLCOM). NAPOLCOM is chaired by the Secretary of the Department of Interior and Local Government.
Practically speaking, the Chief is appointed by the President and takes direct orders from the President as to the priorities and execution of his duties. The Chief of Police also reports sideways to the head of the Department of Interior and Local Government because police are assigned to work with local governments. But it is not a direct boss/subordinate relationship.
Let’s look first at the mandate and composition of NAPOLCOM, then consider it’s appellate function, draw off some lessons from the Mamasapano case, check a few laws on the matter of excessive force, and then wrap it up with some conclusions.
The web site for NAPOLCOM provides this mandate:
The National Police Commission is the agency mandated by the 1987 Constitution and the Major Police Reform Laws, Republic Act Nos. 6975 and 8551 to administer and control the Philippine National Police. Under R.A. 8551, otherwise known as the “PNP REFORM AND ORGANIZATION ACT OF 1998” the Commission’s authority over the PNP were strengthened and expanded to include administration of police entrance examinations, the conduct of pre-charge investigation of police anomalies and irregularities, and summary dismissal of erring police officers.
So the two main functions of NAPOLCOM are: (1) administer and control the police force, and (2) handle investigations of irregularities to include the punishment or dismissal of erring police officers. Entrance and promotional exams seem to be a main focus of the body.
The Secretary of DILG chairs the Commission. This was established to place PNP units directly with their local governments while holding on to their national charter.
The Executive Branch of government provides the operating mandate of the PNP and its daily work supervision.
The Chief of Police is a powerful intermediary position between the “troops” and the President.
NAPOLCOM makes sure incoming police are qualified and the back office work of personnel management and discipline get done. It was NAPOLCOM that approved the promotion of PNP Chief Dela Rosa to 4-star general after President Duterte appointed him to head the PNP. NAPOLCOM approved President Duterte’s picks for chief and several other general positions.
The President recently identified five generals as being involved in protecting or engaging in the distribution of drugs. Those generals were relieved of duty and are now under NAPOLCOM’s auspices to investigate and finalize any required punishments. This incident, plus the speed with which the President’s appointments were approved by NAPOLCOM, illustrates the power of the President in managing the PNP and giving direction to NAPOLCOM.
NAPOLCOM has the following membership: one ex-officio chairman (Secretary DILG), four regular commissioners (one is vice-chair), and one ex-officio commissioner (PNP Chief).
A NAPOLCOM press release on April 10, 2016, announced the appointment of four new NAPOLCOM commissioners by President Aquino. Each commissioner has a term of six years expiring in 2022. The following excerpt from the press release provides a brief bio on each new member.
- Vice-Chairman and Executive Officer Rogelio T. Casurao was on his second term as City Councilor of Calbayog City, Samar prior to his appointment to the Commission. He was the Chairman of the People’s Law Enforcement Board (PLEB) of Calbayog City and the General Legal Counsel of the Philippine Councilors League since 2013. He also served as Vice-President of the Integrated Bar of the Philippines, Samar Chapter.
- Commissioner Felizardo M. Serapio, Jr. was the Undersecretary and Head of the Law Enforcement and Security Integration Office under the Office of the Executive Secretary. He also served as Executive Director of the Philippine Center on Transnational Crime, Head of the Interpol National Central Bureau Secretariat, Officer-in-Charge of the ASEAN Senior Official on Transnational Crime-Philippines, and Head of the Working Group on Trafficking in Persons, ASEAN Senior Official on Transnational Crime.
- Commissioner Job M. Mangente was the Presiding Judge of Branch 54 of the Metropolitan Trial Court, Navotas City. Before he was appointed as MTC Judge, he had a decade long stint as Assistant City Prosecutor of Quezon City. He also served as Assistant Provincial Prosecutor of Albay after nine years of providing free legal service to indigent Filipinos as a Public Attorney at the Public Attorney’s Office (PAO) under the Department of Justice.
- Commissioner Zenonida F. Brosas was the Deputy Director-General of the National Security Council under the Office of the President and the Executive Director of the Presidential Situation Room. She was responsible for handling the preparation of daily information and intelligence requirements of the President and the National Security Adviser, and for providing the President situational awareness on national security 24/7. She also served as resource person of the Commission on the evaluation of the Integrated Area/Community Public Safety Plans of the local government units all over the country.
The chairmanship of NAPOLCOM is the Secretary of the Department of Interior and local Government. Under President Duterte, that is former South Cotabato Governor Ismael “Mike” Sueño. The ex-officio member of the Commission is the PNP Chief Dela Rosa.
The Board is not light of weight, as the commissioners each has a wealth of experience in legal or police work, but it is also clearly an agency of the Executive branch. It is not independent, as are the Ombudsman or Commission on Audit.
How will NAPOLCOM deal with the current rash of police killings? Will the laws be interpreted and applied through NAPOLCOM’S appellate function in a way that supports the unusually authoritative approach of the Duterte Administration, or if it will be a body bound by the letter of the law. We have heard absolutely nothing from NAPOLCOM in the face of this killing storm.
NAPOLCOM Appellate function
NAPOLCOM has a system of national and regional Appellate Boards to deal with disciplinary actions arising from their respective jurisdictions. Their functions are:
- Affirm, reverse or modify, through the National Appellate Board, personnel disciplinary actions involving demotion or dismissal from the service imposed upon members of the Philippine National Police by the Chief of the Philippine National Police;
- Exercise appellate jurisdiction through the Regional Appellate Boards, over administrative cases against policemen and over decisions on claims for police benefits;
So the National Board handles (confirms) acts of the Chief, and the Regional Boards handle charges against policemen and claims for benefits. The National Board handled the cases of the Mamasapano leaders (Generals Purisima and Napenas). It must also deal with the 5 accused generals. If a citizen filed a complaint of “excessive force” pertaining to a specific incident, it appears that would be handled by one of the Regional Boards.
We would have to research further if there have been such complaints and whether or not they are adjudicated in a consistent manner across the regions.
Mamasapano instructs us as to how the Ombudsman can engage to bring cases against law-breaking police members.
We learned courtesy of Representative Gatchalian (now Senator) that the Police have procedures to investigate and punish police officers. Gatchalian had called for summary dismissal proceedings (SDP) against Generals Purisima nd Napeñas.
Gatchalian pointed out that SDP are conducted against erring police officers whenever there is a complaint against them from civilians or as a result of an official PNP investigation like the one conducted by the BOI headed by Criminal Investigation and Detection Group or CIDG Director Benjamin Magalong. [PNP urged to initiate dismissal proceedings vs Purisima, Napeñas]
But we learn further that it takes the President’s approval to execute the dismissal:
Gatchalian pointed out that since Purisima is a presidential appointee, he can only be subjected to a summary hearing after clearance for such purpose is obtained from the Office of the President. . . .Under Rule 2, Section 6 of the PNP Disciplinary Rules Procedure, the report of investigation together with the complete original records of the case (of a presidential appointee) shall be submitted to the Office of the President through the National Police Commission, which is chaired by the DILG secretary on a concurrent capacity. [ibid]
The dismissal did not occur under the President’s order. Rather, the Ombudsman took up the charge and eventually indicted the two generals and ordered them dismissed. [Ombudsman indicts Purisima, Napeñas over Mamasapano]
This incident is instructional because it suggests that, although NAPOLCOM and the Chief of Police take their marching orders from the President, they are not outside the Ombudsman’s purview. The President is protected against indictment while sitting, but General Dela Rosa has no such protection. I suspect NAPOLCOM commissioners might also fall within the Ombudsman’s purview if were determined that they committed . . . say . . . gross neglect of duty.
Are NAPOLCOM commissioners potentially liable in allowing the rampant killings to occur if it were determined that they allowed the police officers to undertake repeated incidents of excessive use of force? We need an attorney on our staff. I just note this because I believe there ARE procedural checks and balances against the spate of killings if they are outside the law. The issue is, is anyone going to press charges, either individually, or against the Chief or Board for gross neglect of duty, or some similar charge.
The Excessive use of force
We are laymen, so a good starting point might be the document “Know your rights” (pdf) prepared by the Chief of Police in 2008. It says:
Police officers are prohibited from firing at moving vehicles, excessive use of force and use of deadly weapons unless the suspect poses imminent danger of causing death or serious physical injury to other persons or the police officers. Our police force is trained on the rules of the use of force and/or reasonable force and in determining imminent danger during operations in accordance with the Police Operational Procedures and provisions of the Rules of Criminal Procedures
I suppose the flaw in this statement is that the definition of “reasonable” is not clear, and President Duterte appears to apply a different definition than did his predecessors.
Each case, in a court, would likely dissolve into a case of “he said, she said” as victims and police paint different pictures of the same set of facts.
But it is important to note that the whole point of the booklet is to assure citizens that they have rights, and those rights will be respected. It is a “service oriented” piece of literature.
Houses, rooms, or other premises shall not be searched except in the presence of their lawful occupants or any member of the occupants’ family or, in the absence of the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the same locality.
Given these and other guidelines, what in the world is going on in the Philippines that the SPIRIT of prior guidelines – protective of citizen rights – have been thrown out?
Does not that booklet represent a set of promises, a contract, between the police and citizens?
Let’s turn to the actual Philippine National Police Handbook (pdf) (Revised Philippine National Police Operational Procedures) 2013. Here is all-important Rule 7 in its entirety:
RULE 7. USE OF FORCE DURING POLICE OPERATIONS
7.1 Use of Excessive Force Prohibited The excessive use of force during police operation is prohibited. However, in the lawful performance of duty, a police officer may use necessary force to accomplish his mandated tasks of enforcing the law and maintaining peace and order.
7.2 Issuance of Verbal Warning The police officer must first issue a verbal warning before he could use force against an offender. As far as practicable, the verbal warning shall be in the dialect that is known to the offender or in the national language. Basically the verbal warning shall consist of the following: the police offi cer identifying himself; his intention; and what he wants the offender to do. If the offender is a foreigner, the verbal warning shall be done in the English language followed by a demonstrative act of the police offi cer’s intent. The verbal warning shall be done in a loud and clear manner.
7.3 Non-Issuance of Verbal Warning When Excusable The failure to issue a verbal warning is excusable in cases where threat to life or property is already imminent, PNPM-DO-DS-3-2-13 6 OPERATIONAL PROCEDURES Chapter 2 and there is no other option but to use force to subdue the offender.
7.4 Use of Non-Lethal Weapon When suspect is violent or threatening, and that less physical measures have been tried and deemed inappropriate, a more extreme, but non-deadly measure can be used such as baton/truncheon, pepper spray, stun gun and other nonlethal weapon to bring the suspect under control, or effect an arrest.
7.5 Application of Necessary and Reasonable Force During confrontation with an armed offender, only such necessary and reasonable force should be applied as would be sufficient to overcome the resistance put up by the offender; subdue the clear and imminent danger posed by him; or to justify the force/act under the principles of self defense, defense of relative, or defense of stranger.
7.6 Factors to Consider in the Reasonableness of the Force Employed A police offi cer, however, is not required to afford offender/s attacking him the opportunity for a fair or equal struggle. The reasonableness of the force employed will depend upon the number of aggressors, nature and characteristic of the weapon used, physical condition, size and other circumstances to include the place and occasion of the assault. The police officer is given the sound discretion to consider these factors in employing reasonable force.
7.7 Responsibility of the Police Officer in Charge of the Operation The police officer who is in charge of the operation shall, at all times, exercise control over all police personnel in the area of operation, and shall exhaust all possible means to apply the necessary and reasonable force to protect lives and properties during armed confrontation.
Rule 8 elaborates on the use of fire-arms. Here are a couple of pertinent sections:
8.1 Use of Firearm When Justified The use of firearm is justified if the offender poses imminent danger of causing death or injury to the police officer or other persons. The use of fi rearm is also justified under the doctrines of self-defense, defense of a relative, and defense PNPM-DO-DS-3-2-13 Chapter 2 OPERATIONAL PROCEDURES 7 of a stranger. However, one who resorts to self-defense must face a real threat on his life, and the peril sought to be avoided must be actual, imminent and real. Unlawful aggression should be present for self-defense to be considered as a justifying circumstance.
8.4 Filing of an Incident Report After the Use of Firearm A police officer who fires his service firearm or weapon during a confrontation with an offender or offenders must submit an incident report outlining the circumstances necessitating the use of his firearm.
Very clearly, the ground has shifted under citizens. The old rules have been thrown out and new ones, not yet codified, have come into play. Is the President authorized, on his say-so, to throw out the old citizen-friendly rules and replace them with authoritative, police-centric rules? Is “service” gone from the police charter, now replaced by “obey!”?
I’d guess not if there were a legitimate citizen-services defense function able to take law cases to the Supreme Court to immediately stop the deployment of these new undocumented guidelines on police use of force.
During my readings, I came across Amnesty International’s public statement on use of force against demonstrators earlier this year at Kidapawan City. Two protesters were killed during that protest.
My, we didn’t listen very well, did we?
For sure, there seems to be no urgency from the Legislature, civic interest groups or private attorneys to stop the killings. That seems to represent tacit endorsement, and leaves observers such as Joe America aghast at the “new rules” on citizen protections.
Or rather new rules . . . unwritten . . . that eliminate the protections.