Republic of the Philippines

Philippine National Police

INTERNAL AFFAIRS SERVICE
REGIONAL INTERNAL AFFAIRS SERVICE-NCR
DISTRICT INTERNAL AFFAIRS SERVICE-EPD
Caruncho Avenue, Pasig City

Eastern Police District-Internal Affair Service ADMIN DOCKET/CASE

Complainant

FOR: Grave Misconduct

(Viol of Rule 21 under Sec 2 (c),
para 3 Sub-para “r” of
NMC 2016-002 in relation
to Art.249 of RPC “HOMICIDE”)

-versus-

PSSg Marjowin Quaile and 3 others

Mandaluyong City Police Station
Eastern Police District NCRPO
Caruncho Avenue Pasig City
Respondents.
X--------------------------------------------------------X

POSITION PAPER
RESPONDENTS by the Summary Hearing Officer and unto this honorable office
respectfully submit this position paper.

PREFERATORY STATEMENTS

Supreme Court Associate Justice Alfredo Benjamin S Caguio penned in his decision;

"x x x And when the last law was down, and the Devil turned 'round on
you, where would you hide, Roper, the laws all being flat? This country is planted thick
with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and
you're just the man to do it, do you really think you could stand upright in the winds that
would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!"

- Robert Bolt, A Man for All Seasons

We, respondents PSSG MARJOWIN QUAILE and PSSG DANIEL GACHO both of
legal age, ,bona fide member of the Philippine National Police and presently assigned at
Mandaluyong City Police Station, Eastern Police District after having been duly sworn to in
accordance with the law, do hereby depose and states that:

That we categorically denied the allegation imputed against our persons by the nominal
complainant for Grave Misconduct mentioned-above and set affirmative defense of Justifying
Circumstances.

BRIEF STATEMENT OF FACTS

That the true matter of facts, on August 27, 2020 was our regular duty as bona fide
member of Philippine National Police assigned at Mandaluyong City Police Station. We
religiously and faithfully perform our duty in our respective assignment. At around 4:30 PM of
said date we heared a sounds of disturbence/alarm and gunshot emanating from construction site
where New BJMP Building erecting.

As a result, we immediately procceded to construction site where the sounds emantaing,

while in the course of proceedings we saw PCpl Michelle De Jesus with gunshot wound in her
right arm and PCpl Shane Managtag with gunshot wound in his body. We ask them what happen
and they conveyed information that one of the detainee grab the service firearm of PCpl De Jesus
and shot to them. Then, wounded [police officers brought to the nearest hospital for medical
attention.

When we reached the 3rd floor of new BJMP building as our temporary detention facility,
we saw detainee Emerson Bernaldez holding a fire arm, PSSg Daniel Gacho uttered that “BABA
MO ANG BARIL MO BERNALDEZ” instead of following the lawful order, Bernaldez pointing a
gun to us with overt intention that he will shoot that to us. We instantly afraid for our life, we have
no other recourse to stop him but to shoot him to prevent him of killing us.

Relatively, detainee Bernaldez in the course of firearm confrontation between us he

jumped from the open window of 3rd floor of custodial facility. We chased him and we rushed
going down, then we saw him lying on the cemented pavement full of blood and without signed of
life.

ISSUE:

THE SOLE AND PRIMORDIAL ISSUE HERE IS WHETHER OR

NOT RESPONDENTS ACT IS ACCORDED TO THE PROVISION OF
ARTICLE 11 OF THE REVISED PENAL CODE?

ARGUMENTS/DISCUSSION:
Art. 249. Homicide. – Any person who, not falling within the provisions of Article 246, shall kill
another, without the attendance of any of the circumstances enumerated in the next preceding
article, shall be deemed guilty of homicide and be punished by reclusion temporal.”

The elements of Homicide are the following:

(a) a person was killed;

(b) the accused killed him without any justifying circumstance;

(c) the accused had the intention to kill, which is presumed; and

(d) xxxxxxxxxx

Article 11 of the Revised Penal Code provide;

“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.”

xxxxxxxxxxxxxxxxxxxx.

The issue of this case is reduced to settle the question whether or not
the act of respondent police officers is justified pursuant to above provision
of the Revised Penal Code of the Philippines. Thus, need to resolve whether
or not the act of discharged of firearm is justified and is the said act of PSSg
Quiale and Gacho is actionable wrong.

Rules on evidence provide two (2) kinds of defenses. Affirmative and

Negative denial. When respondent interposes an affirmative defense, he/she
is admitting the ultimate facts alleged in the complaint and thus obliged to
justify the offense by presenting clear and convincing rebuttal evidence.

The consequence thereof is that the burden of proof shifted to the

respondent to prove that he is act is committed for justifiable cause thus he
is not liable.

In this case, respondents PSSg GACHO and QUAILE interposed

affirmative defense of Article 11 of the RPC (justifying Circumstances).
Thus, he has now a burden of proving that his act is valid or a sufficient
ground giving him valid cause to absolve to this admin case.

Regularity of Performance of Duty

“That the true matter of facts, On August 27, 2020 was my regular duty as bona fide
member of Philippine National Police assigned at xxxxxxxxxxxx”. (Attached herewith
affidavits of PSSG Marjowin Quiale and PSSg Daniel Gacho, made integral part of this
position paper.)

That the preceding paragraph quoted showed the respondent police officers during the time
of incident act in discharge of their official duty as a member of Philippine National Police and he
religiously and honestly performed their duty as police officer and public servant of Mandaluyong
City.

This presumption is based on the three fundamental reasons such as;

1. Innocent and not a wrong-doing is to be presumption

2. Official oath will not be violated

3. A republican form of government cannot survive long unless a limit is place upon
controversies and certain trust and confidence reposed in such government department or agent by
every other such department or agent, at least to the extent of such presumption.
Republic of the Philippines
Vs
Amor Hachero and the register of deeds of Palawan.
GR No. 200973 May 30, 2016

The presumption of regularity in the performance of official duties applies favorably to the
Republic. Xxxxxxxxxxxxxxxxx

xxxxxxxxxx the presumption of regularity in the performance of official duties which the
record failed to rebut. The presumption of regularity of official acts may be rebutted by
affirmative evidence of irregularity or failure to perform duty. The presumption, however,
prevails until it is overcome by no less than clear and convincing evidence to the contrary.
Thus, unless the presumption is rebutted, it becomes conclusives. xxxxxxxxxxxxxxxxxxx

The presumption holds that the act of respondent police officers are presumed legaly
performed. Niether it is rebutted nor presented clear and convincing evidence to overcome the
regularity of performance of duty of respondent police officer.

Respondent police officers invoke the provision of Article 11 of the Revised Penal Code as
their defense to this charge/issue and praying to absolve to this admin case and relieve their
agonies and distress or anguish due to this pending administrative case.

Article 11 of the Revised Penal Code provide;

FIRST Unlawful aggression

“That, when we (referring to PSSg Quiale)/(referring to PSSg Gacho) arrived at 3 rd floor of

temporary facility we immediately saw Bernaldez holding a gun, I uttered that “BABA MO ANG
BARIL MO BERNALDEZ” instead of following my lawful order to him, Bernaldez pointing a
gun to us with overt intention that he will shoot that to us. I instantly afraid for my life, we have
no other recourse to stop him but to shoot him to prevent him of killing us. ”. ( paragraph 6 of
respondents PSSg Quaile and PSSg Gacho affidavits)

That the apparent purpose of the preceding quoted statements, the unlawful aggression on
the part of the deceased detainee (Emerson Bernaldez) was present during that time. The
primordial elements of Self Defense is UNLAWFUL AGGRESSION, this unlawful aggression
born when the deceased suspect Bernaldez fired a gun to two duty jailer (PCpl De Jesus and PCpl
Mangatag) and later try to shot responding police officers now respondents of this admin case.
The act of Bernaldez constitute actual physical assault on the part of police officers defending
himself.

SECOND Reasonable necessity of the means employed to prevent or repel it

“I uttered that “BABA MO ANG BARIL MO BERNALDEZ” instead of following my

lawful order to him, Bernaldez pointing a gun to us with overt intention that he will shoot that to
us. I instantly afraid for my life, we have no other recourse to stop him xxxxxxxxxx.” (paragraph 6
of respondent affidavits).

That this bolstered to answer the act of respondent police officers is reasonable and
necessary to prevent or repel the suspect to take their once life and to preserve their life to
impending death. It is crystal clear the danger to their life was imminent and apparent. In this
circumstance respondent police officers faces actual, sudden, unexpected, real and immediate
threat to their life.
THIRD Lack of sufficient provocation on the part of the person depending himself

“That, at around 4:30 PM of August 27, 2020, PAO counsel Atty Albano called me and
informed me that he wants to talk detainee whose case is under him. That because of that
called by counsel Albano I proceed to Temporary Custodial Facility to inform the detainee
about the concern of PAO lawyer.”

That, while going to said facility where the detainee incarcerate I saw PCpl De Jesus with
blood on her body and gunshot wound in her arm, I immediately asked her what happen,
she replied that one of the detainee grab her service firearm and shot to her.” (paragraph
3 and 4 of respondent PSSg Gacho affidavit)

“That, at around 4:30 PM of August 27, 2020, affiant packing foods in police mobile car
for Mandaluyong City Police Station assigned in field. While the undersigned packing
foods he heard disturbing sounds originate from temporary facility and also a gunshot
sounds.”

“That, because of that, I immediately rushed to temporary custodial facilty where the
sounds emanated. While I going to said facility I met PSSg Gacho also going to the said
floor to response. While in the course of responding we saw PCpl De Jesus with blood on
her body and gunshot wound on her arm, We immediately asked her what happen, she
replied that one of the detainee grab her service firearm and shot to her.” (paragraph 3
and 4 of respondent PSSg Quiale affidavit)

These four (4) paragraphs extracted from affidavits of respondent police officers, it answer
the question of lack of sufficient provocation on their part. The action of response of respondent
police officers anchored to the sounds of disturbance and gunshot including the information
conveyed by two wounded police officers. Any prudent police officer in the same position or
situation will do the same to response in emergency or insurgency situation, failure to do so
constitute neglect of duty.

Relatively to both paragraph 6, respondents suddenly finds themselves in a place of

danger, and was required to act without time to consider the best means that may be adopted to
avoid the impending danger or death. It is the very powerful instinct of self-preservation during
that time.

All in all, based on the facts given in the Brief Statement of Facts the deceased detainee
continuously attacked the two wounded police officers and responding police officers.

“The general rule of this requisite a person making a defense has no more right to attack an
aggressor when the unlawful aggression ceased.”

Police Officer Gacho gave the suspect lawful order to drop the firearm before firearm
confrontation between them transpired. Absent from firearm confrontation was any evidence
proved that respondent police officers sufficiently provoking the suspect prior to the shooting.
Furthermore, credibility of pieces evidence presented are entitled to great respect.

All told, respondent police officers was only defending themselves on the day of incident.

Lastly, respondent police officers have no intention to implict wound, beat, or assault nor
to kill the deceased suspect, their act was only to defend themselves against impending death and
to repel and prevent the malefactor to take their once life.
 Good faith of respondent police officers in dealing the situation showing honestly and
fairly is a hallmark of good public servant and destroyed the doubt of bad faith and malice on their
part.

The basic rules is that mere allegation is not evidence and is not equivalent to proof.
Charges based on mere suspicion and speculation likewise cannot be given credence. When the
complaint relies on mere conjunctures and suppositions and fails to substantiate his allegations,
the complaint must be dismissed for lack of merits. (cited in the case of Florencio Morales Jr vs
Ombudsman Conchita Carpio-Morales et al GR No. 208086)

That we executed this position paper to attest to the truth of the foregoing in order that we
will be dropped as a respondents in the above entitled complaint.

WHEREFORE, premises considered, it is most respectfully prayed unto this Honorable

Office that the complaint against us be dismissed for our act not beyond the provision of Article
11 of the Revised Penal Code and for insufficiency of evidence to rebut our claims.

Other reliefs, just and equitable are likewise prayed for.

IN WITNESS THEREOF, I have hereunto set my hand this _____ day of October 2020
at Pasig City, Philippines.

PSSG DANIEL GACHO PSSG MARJOWIN QUAILE

Affiant Affiant

SUBSCRIBED AND SWORN to before me this ______ day of October 2020 in

________________________________ and further certify that I personally examined the herein
affiants and I was fully convinced that he personally executed and understood the same.

____________________________
Administering Officer