Republic of the Philippines

NATIONAL POLICE COMMISSION

PHILIPPINE NATIONAL POLICE, INTERNAL AFFAIRS SERVICE
REGIONAL INTERNAL AFFAIRS SERVICE NCR
QUEZON CITY POLICE DISTRICT INTERNAL AFFAIRS SERVICE
Camp P/MGen Tomas B Karingal, Sikatuna Village, Quezon City

IN RE:ADMINISTRATIVE PROCEEDINGS PCI Control No. RNCRA-NMP-2022-09-37

For: Grave Neglect of Duty
(Viol of Sec 49, RA 8551in rel to
Sec. 39, para [e])
-versus-

PLT ELMER C ANTONIO

Respondent
x---------------------------------------------------x

POSITION PAPER
COMES NOW, the respondent in his own behalf and unto this
Honorable Summary Hearing Officer, most respectfully submit this Position
Paper and further alleges the following:

PREFATORY STATEMENTS

When a law, regulation, or circular provides for a procedure on how to

determine liability of a person particularly when it imposes penalties in the
form deprivation of property, opportunity to earn a living or employment
protected by law, such procedures which is constructed in a mandatory
tone becomes a part of substantive laws for which failure of a quasi-judicial
body such as this Summary Hearing Proceeding to comply amounts to a
violation of a constitutionally protected right to due process. As such, it
becomes an legal abomination which it deprives a court, tribunal, or agency
its jurisdiction to proceed in its normal course of proceedings.
In this particular case, herein respondent was unjustly included as a
party after finding probable cause in a Pre-Charge Investigation conducted
against PCpl Franco B Salva for an alleged grave misconduct upon
complaint of a certain Jery Lagnason and relative Vivian Lagnason based
on a perjured, concocted, baseless allegations of violation of domicile and
search without warrant.

THE PARTIES

Complainant is the Philippine National Police, a juridical entity

created by law and represented by the Regional Director, NCRPO with
postal address at Camp Bagong DIwa, Bicutan, Taguig Cirty, where he can
be served with summons and other processes of the Honorable SHO.
-and-
Respondent is of legal age, Filipino, police officer by profession,
currently assigned at Holy Spirit Police Station, Brgy. Holy Spirit, Quezon
City where he may be served with summons and other processes of the
Honorable SHO.

STATEMENT OF FACTS

During the conduct of Pre-Charge Investigation, it was alleged by

complainant Jery Lagnason that herein respondent trespassed and
conducted search on August 26, 2022 at about 10:46PM together with
unidentified police officers. He was advised to gather witnesses in order for
his complaint to be acted upon. Thus, on September 12, 2022,
complainant Jery Lagnason brought Vivian Lagnason, his auntie who is
living with him, Mark Alejandro Razalo who executed their respective
Sinumpaang Salaysay corroborating the allegations of Jery Lagnason.

During the proceedings, respondent believes that the present case,

the charges of neglect of duty is premature as there was still no
determination whether or not PCpl Salva committed a crime or violated a
law or PNP Regulations. The charges implies that he :has knowledge that
a crime or offense shall be committed, or is being committed” being the
immediate superior of the operating team. He averred that Principal
Complainant, Jery Lagnasan has sworn that he was merely coerced and
paid to commit a perjurious statement implicating PCpl Salva with a basic
purpose of intimidating the police officer from conducting police visibility
and patrol along Diego Silang St., Veterans Village, Brgy. Pasong Tamo,
Quezon. Principal Complainant, Jery Lagnason said that “3…ito ay
resulta lamang ng pagtuturo sa akin ng aking pamangkin na si Roldan
Roxas at kanyang kaibigan na si Richard Mojica na magreklamo kay
PCpl Salva kahit na hindi ko siya kilala at hindi Nakita na pumasok sa
loob ng aming bahay” and that “Nakukunsinsya po ako na akosahan
si Sir Zalva po na WALA NA MANG KINALAMAN PO SA LAHAT”

Respondent claims that contrary to the allegations in the Charge

Sheet that the respondent violated Sec 49, RA 8551in rel to Sec. 39, para [e])
while implies that he failed to take preventive or corrective actions against his
personnel and that there is no neglect of duty committed by the
Respondent.

ISSUES
Whether or not respondent is guilty of grave neglect of duty violation
of Sec 49, RA 8551in relation to Sec. 39, para [e].

RESPONDENT’S POSITION ON THE CASE

This administrative case must be dismissed outright for wrongly

charged of a violation of neglect of duty in accordance to Sec. 49 of RA
8551 in relation to Sec. 39 paragraph e. A clear and verbatim of the
provision states:

Section 49. Disciplinary Recommendations of the IAS. – (a)

Any uniformed PNP personnel found guilty of any of the
cases mentioned in Section 39 of this Act and any immediate
superior or supervisor found negligent under Section 48 shall
be recommended automatically for dismissal or demotion, as
the case may be.

(b) Recommendations by the IAS for the imposition of disciplinary

measures against an erring PNP personnel, once final, cannot be
revised, set-aside, or unduly delayed by any disciplining authority
without just cause. Any disciplining authority who fails to act or
who acts with abuse of discretion on the recommendation of the
IAS shall be made liable for gross neglect of duty. The case of
erring disciplinary authority shall be submitted to the Director
General for proper disposition.

While Sec. 39 paragraph (e) provides:

The IAS shall also conduct, motu proprio, automatic investigation

of the following cases:

a) incidents where a police personnel discharges a firearm;

 b) incidents where death, serious physical injury, or any violation
of human rights occurred in the conduct of a police operation;

c) incidents where evidence was compromised, tampered with,

obliterated, or lost while in the custody of police personnel;

d) incidents where a suspect in the custody of the police was

seriously injured; and

e) incidents where the established rules of engagement have

been violated.

The provisions of Sec. 39 is about the conduct of motu propio

investigation concerning personnel who discharges a firearm, death
occurred during a police operation, evidence tampering, serious injury to
a suspect in custody, and violation of the rules of engagement. Hence,
herein respondent may not have been charged with Grave Neglect of
Duty since his subordinate PCpl Salva neither discharged a firearm, nor
caused death or injury to the suspect, nor tampered any evidence, nor
violated the Rules of Engagement which is basically shooting another
person. In pari passu, the Primary Complainant Jerry Lagnason or even
Vivian Lagnason is neither a detainee, injured, died during their custody.

As such, this case against him should have been dismissed even
during the Pre-Charge Investigation Stage. Further, considering there is
no definite determination that an SDEU personnel indeed committed
illegal and irregular acts as there is no resolution or decision being
submitted by PCpl Salva’s Summary Hearing Officer or the Regional
Director, NCRPO, it cannot be presumed or assumed that herein
respondent was negligent in supervising his personnel committing an
office which would violated Executive Order No. 226 considering it
cannot be presumed that he has prior, actual, after knowledge that his
personnel committed acts contrary to NAPOLCOM MCs or the PNP
regulations. Such fact is still to be found out after the proceedings since
what the Pre-Charge Investigator and his Chief merely FOUND A
BELIEF THAT COULD INDICT the SDEU personnel for grave
misconduct and grave irregularity in the performance of duty but their
GUILT, LIABILITY, IRREGULARITIES, AND ILLEGALLITIES
COMMITTED IS STILL TO BE DETERMINED IN PROPER
PROCEEDINGS BEFORE THE SUMMARY HEARING OFFICER.

Not only the institution of administrative case against herein

respondent is wrongly identified for alleged violation of the Rules of
Engagement by his subordinate personnel, it is also PRE-MATURE as
there is no convincing evidence that could show that indeed, the ANTI-
CRIMINALITY OPERATION conducted last August 29, 2022 at around
10:00PM OUTSIDE the HOUSE OF THE ACCUSED AND THE
 PRIVATE COMPLAINANT were tainted with irregularities and illegalities
until proper determination of the courts that acquired jurisdiction of the

It is a self-evident fact that our law enforcement officers are sworn

to uphold the law, not to invent crimes. The imperative to ensuring the
smooth functioning of the government machinery grounds the evidentiary
presumption that public officers have performed their duty
regularly. True, this presumption is not conclusive, but it is also not
meaningless. It takes more than a bare tale of malfeasance by
unidentified perpetrator to overcome it. To accept as presumption-
overcoming dubious tales of the likes respondents purveyed is to leave
the smooth functioning of our government to the mercy of the fertile
imagination of litigants, free to concoct all sorts of devious plots and
attribute them to unnamed civil servant. We could not image a more
insidious way to slowly paralyze state apparatuses of governance.”1

The presumption, however, prevails until it is overcome by no

less than CLEAR AND CONVINCING EVIDENCE to the contrary.
Thus, unless the presumption in rebutted, it becomes conclusive. Every
reasonable intendment will be made in support of the presumption and in
case of doubt as to an officer’s act being lawful or unlawful,
construction should be in favor of its lawfulness.2

As such, while the Holy Spirit Police Station Drug Enforcement Unit
personnel enjoys such presumption, surely, herein respondent CANNOT
BE FOUND LIABLE DURING A SEPARATE CONDUCT OF PRE-
CHARGE INVESTIGATION FOR NEGLECT OF DUTY and as such, he
should have been accorded with due process in order not to be included
in this haphazardly FINDINGS OF THE PRE-CHARGE INVESTIGATION
AGAINST HIS PERSONNEL AND FAILING TO INCLUDE HIM AT THE
LEAST.

On whether or not respondent is guilty of neglect of duty arising

from failure to supervise subordinates under his command or violation of
EO No. 226 (Command Responsibility). After the recital of the above
jurisprudence that his personnel have not been found liable for alleged
irregularities or illegalities, he could not be made to answer to an issue
which has not undergone proper proceedings whether such maybe in
court during the trial or in a separate administrative proceedings against
PCpl Salva for grave misconduct and grave irregularities in the
performance of duty.

Presumption of knowledge under EO 226 or Institutionalization of

Command Responsibility cannot be applied in his case as the three (3)
elements for being liable under such doctrine are not found under the
1
Hon. Primo C Miro, Deputy Ombudsman for the Visayas vs. Reynaldo
Dosono, G.R. No. 17697, April 30, 2010.
2
Anuncio C. Bustillo, et.al. vs. People of the Philippines, G.R. No. 160718, May 12,
2010.
 facts and circumstance presented earlier, i.e. 1) widespread irregularities
or illegal activities in his AOR; 2) number of occurrences of such
irregular or illegal acts; and that 3) the erring police personnel is not one
of his immediate staff or office personnel as he has an immediate
superior and supervisors.

Under Executive Order No. 292 which compliment Executive Order

226, it states in Section 38 that “A head of a department or a superior
officer shall not be liable for the wrongful acts, omissions of duty,
negligence, or misfeasance of his subordinates, unless he has
actually authorized by written order the specific act or misconduct
complained of.” And in Section 39 that states “No subordinate officer
or employee shall be liable for acts done by him in good faith in the
performance of his duties. However, he shall be liable for willful or
negligent acts done by him which are contrary to law, morals, public
policy and good customs even if he acted under orders or instructions of
his superiors.”

Now, to hold respondent liable for neglect of duty would be contrary

to the facts and the law applicable to the instant case. Substantial
evidence required in administrative case means such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion3. "While substantial evidence may consist of inferences, such
inferences must be 'a product of logic and reason' and 'must rest on the
evidence'; inferences that are the result of mere speculation or
conjecture cannot support a finding”. 4 As such, in this case, it cannot be
said that the respondent reneged of his duties as the Chief of Police as a
person can only do so much that he could honestly and effective do with
the help of his immediate staff and subordinate officers that supervises
the rank and file personnel of the Station.

'Substantial' evidence is not synonymous with 'any' evidence. To

constitute sufficient substantiality to support the verdict, the evidence
must be 'reasonable in nature, credible, and of solid value; it must
actually be "substantial" proof of the essentials which the law requires in
a particular case.'5 "While substantial evidence may consist of inferences,
such inferences must be 'a product of logic and reason' and 'must rest on
the evidence'; inferences that are the result of mere speculation or
conjecture cannot support a finding.” 6

3
Apolinario v. Flores, G.R. No. 152780, January 22, 2007
4
Kuhn v. Department of General Services (1994) 22 Cal. App. 4th 1627, 1633
5
Estate of Teed (1952) 112 Cal.App.2d 638, 644; [citations].)" (Kruse v. Bank of
America (1988) 202 Cal.App.3d 38, 51-52.
6
Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.
 PRAYER

WHEREFORE, in the interest of justice, it is respectfully prayed that the

respondent be exonerated and that the Administrative Case against him be
dismissed for lack of merit substantial evidence to prove his liability.

PLT ELMER C ANTONIO

Respondent

SUBSCRIBED AND SWORN to before me this ____ of October 2022

herein Quezon City and I am convinced the respondent has read and
understood his undertakings.