Unlawful aggression

Ian Alfredo Magno

 THE mandate of our police force is “to serve and protect.”  Yet we often hear news of police officers who, after apprehending a criminal, end up the ones being prosecuted instead. These tales send chills across the ranks of the Philippine National Police (PNP) who quiver at thought of enduring the ordeal of an administrative or criminal suit.  To the law-abiding public, however, it could be largely counterproductive in so many ways. Perhaps this could help.

Rule 6 of the Police Operational Procedure of the Philippine National Police (PNP) states:

“Rule 6: Use of Deadly Force

“The excessive use of force shall be avoided. The use of firearm is justifiable by virtue of the Doctrines of Self-Defense, Defense of Relative, and Defense of Stranger, and if the police has probable cause to believe that the suspect poses an imminent danger of death or serious physical injury to the police or other persons.”

Meanwhile, under Paragraph 1, Article 11 of the Revised Penal Code, 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

By definition, unlawful aggression is an actual physical assault, or at least a threat to inflict real and imminent injury upon a person.  In the case of threat, it must be offensive and strong, positively showing the wrongful intent to cause injury.  It presupposes actual, sudden, unexpected or imminent danger – not merely threatening and intimidating action. It is present only when the one attacked faces real and immediate threat to one’s life.

To warrant an acquittal in a homicide case, for instance, the accused must establish that the victim employed unlawful aggression (along with the rest of the elements of self-defense). How then may a police officer rationalize the use of deadly force absent the element of unlawful aggression?

Under Paragraph 5, Article 11 of the Revised Penal Code, a person incurs no criminal liability when he acts in the fulfillment of a duty or in the lawful exercise of a right or office. There are two requisites in order that the circumstance may be taken as a justifying one:

1. The accused acted in the performance of a duty or in the lawful exercise of a right or office; and
2. The injury or offense committed be the necessary consequence of the due performance of such duty or the lawful exercise of such right or office.

In the case of Cabanlig vs. Sandiganbayan G.R. No. 148431 dated 28 July 2005, the Supreme Court pronounced: “Unlike in self-defense where unlawful aggression is an element, in performance of duty, unlawful aggression from the victim is not a requisite. In People v. Delima, 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.”

 (Atty. Ian Alfredo T. Magno is an associate at Atty. Francis U. Ku & Associates, and is a deputy legal officer at Philhealth. E-mail: ianalfredom@gmail.com)