Presumption of Regularity: Oppressive to the Accused

Privilege Spits
By Atty. Berteni C. Causing

Presumption of Regularity:
Oppressive to the Accused

If Filipinos would read this particular article for Privilege Spits, they would discover that one of the major tools used by the Philippine courts in discovering truth is actually overused and grossly abused.

This tool is called “presumption of regularity.”

Before proceeding with the topic of the week, let this author say that this subject is close to his heart. That is the reason why he wrote the entire article during the entire flight of Philippine Airlines to Manila on 12 March 2017.

This author has been practicing as a lawyer for a long time and he has not used the “presumption of regularity” just to argue that what he would claim is true.  He has many clients who were policemen, NBI and PDEA agents.  In all these cases this lawyer relied on the merits of evidence rather than invoking this presumption of regularity.

This attorney finds this “presumption of regularity” as used in the Philippines as the most presumptuous of all the presumptions of evidence established by the Rules of Evidence and by laws passed by the Congress of the Republic of the Philippines.

By the way, the Rules of Evidence was invented by the Supreme Court.  It can be amended anytime by the Highest Tribunal.    And as a conscientious man of the bar, he undertakes that he will propose to change or modify Section 1 (m) of Rule 131 that says “that official duty has been regularly performed.”

Being too presumptuous, it would be unfair for this lawyer to use “presumption of regularity” argument against the opponents who are actually the ones telling the truth but that they happened to be not lucky to have secured any piece of evidence to prove their assertions or that the nature of the incident was that the opponents cannot have any other evidence except for the words they can give as testimonial evidence.

The experience of this lawyer shows that it is with more reason that this “presumption of regularity” becomes evil, oppressive and discriminatory when used against the accused in a criminal case.

Little do the people know that the biggest oppressor against all accused in any criminal case, particularly cases where the witnesses are government officers, including police officers and other law enforcers, is the concept of the Rules of Evidence called “presumption of regularity.”

Now, what worries this author the most is the fact that the House of Representatives has already approved on third and final reading a bill re-imposing death penalty, although only for offenses on illegal drugs.

If this presumption of evidence is to be used to impose death penalty on any person accused of drug trafficking, it will be the height of irresponsibility for the court that would mete out the sentence and the President and the Congress that made law imposing death if they would still use the abusive “presumption of regularity.”

The law of nature, the law of conscience, and the law of God cannot allow punishing a convicted person with the death penalty if he were convicted with the use of the presumption of regularity.

Evil of presumption of regularity
rejected by new Japanese system

In Japan, the “presumption of regularity” is the only reason why its government decided to modify their trial system from one that is decided by one judge only to one decided by a jury made up of three judges chosen randomly from the pool of judges and six (6) ordinary laymen randomly picked from the community.

The decision to change from the single judge to decide the case to the modified jury to decide was prompted by persistent complaints from Japanese citizens.

The Japanese complained that even if the police there erred in arresting them, the courts still convicted them because the words of the officers who forced the arrested persons to confess to the crimes for which they were arrested were presumed by the courts as true.

That was so given weight by the Japanese courts because of the “presumption of regularity” in the performance of the official functions of the police officer.   

With this system, the words of the arrested civilians who usually had no evidence except for their mouths cannot be given any weight against the words of the police officers who arrested them because of the “presumption of regularity.”

Chief of the complaints of the Japanese community was that even if the police officers who arrested the accused were stammering and showing difficulty when testifying, with this procedure, the testimonies of the accused have become just a formality for the forthcoming conviction. 

The Japanese therefore found “presumption of regularity” as evil that must be exorcised.

An article about Japanese jury system reads:

“Japan, on the other hand, is presently building its own new jury system from the ground up. After nearly five years of debating, testing and refining, Japan’s new Saiban-in (or “lay judge”) system bears only a passing resemblance to its American cousin. Beginning next May (2008), defendants charged with serious crimes will be tried by a panel of six jurors and three judges, sitting together in a single line. Together and by a simple majority, the panel will rule on both guilt and sentencing.”

In an article posted on the website of The Guardian newspaper on August 3, 2009, it reports that first jury trial in Japan was watched with bated breath by the Japanese citizens, which was due to the fact that Japan abolished jury trial in 1928 and it was only this time that it was coming back but modified because it now has three (3) professional judges sitting along with six (6) lay men chosen from the community.

Said by The Guardian, to wit:
“Thousands of Japanese citizens queued outside a Tokyo courtroom today to witness the most radical change to their country's criminal justice system since the second world war with the introduction of trial by jury.”
“Inside, six people chosen at random from millions of voters became the first Japanese people for three generations to decide whether a fellow citizen walks free or pays for his crimes.”
“The jurors – five women and a man – were chosen from a pool of 47 people this morning to take their seats in court later in the day. Their task: to decide an appropriate punishment for Katsuyoshi Fujii, a 72-year-old man accused of stabbing a neighbour to death earlier this year.”
“They and three professional judges at Tokyo district court will sentence Fujii, who has admitted killing 66-year-old Haruko Bun. The lay judges must arrive at a majority decision and have the assent of at least one professional judge for the sentence to stand…”

Examples of application of
‘presumption of regularity’

In one case decided by the Supreme Court, People vs Nathaniel Pasion, Case Number GR No. 203025, January 28, 2015, it explained how the “presumption of regularity” defeated with convenience the defense of the accused that they were just framed up by agents of the law.

The Supreme Court just said that the declarations of the agents of the law as witnesses are considered true just because they were police officers performing the official functions.

“Presumption of regularity” as applied by the Rules of Evidence to government officials’ action is actually vague or that it immediately impresses upon a message that all acts done as official duty have regularly been performed, regardless of the abuses actually committed.

Section 131 sub-paragraph (m) of the Rules of Court of the Philippines defines presumption of  regularity as presuming that “the official duty has been regularly performed.”

This presumption of regularity as used in the standard, tradition and culture in the Philippines has always been the worst enemy of the presumption of innocence.

The Constitution says that the presumption of innocence can only be defeated by proof beyond reasonable doubt.  There is nothing in the Constitution that says that the presumption of innocence can be defeated by another presumption.

Let us take as example cases of buy-bust operations.

In all cases of buy-bust of illegal drugs as claimed by government officers, they present to the court their stories of how they arrested the accused.  You will be amazed by the fact that all officers present stories that led to the arrest having the same plot.

The plot:

(1) That the police used a confidential informant who claimed to be a friend of the accused;
(2) That the confidential informant contacted the accused to entice the accused to sell some sachets of shabu to the confidential informant;
(3) That the accused agreed to sell and he and the confidential informant set the place where the confidential informant will meet with the accused to buy the illegal drug;
(4) That when they met the accused at the meeting place the confidential informant then introduced the officer of the police or PDEA or NBI agent to the accused;
(5) That the accused did not doubt that the new face introduced to him by the confidential informant was not an officer of the law, despite the fear that the sentence if found guilty of selling is life imprisonment;
(6) That the accused with full trust to the stranger police officer handed over a sachet of shabu; and
(7) That after the exchange of the money with the illegal drug the officer then declared arrest.

If you happen to be a lawyer of many accused in cases of buy-bust operations of illegal drugs, you will get that idea that the plot repeated endlessly or in an unlimited manner is not true at all.

However, many convictions have occurred against the accused in buy-bust cases that are actually false buy-bust just because of “presumption of regularity.”

The defense of the accused as insisted by them in their testimonies would always be “frame-up” or that what happened actually was a case of planting of evidence.  But this is always declared as the “weakest evidence” because the Supreme Court has always said that this is the weakest evidence like the defense of alibi and that the presumption of regularity of the declarations of the police or agents has never been overturned.

So many persons have been convicted with the use of this plot of the story because of the “presumption of regularity” on the part of the police officers or other law enforcers.

Because the police operatives are immediately and blindly given the “presumption of regularity,” all their stories even false are pronounced by the courts as true and correct.

So that it is clear that the accused were found guilty not because they are truly guilty.  They are always convicted because of the “presumption of regularity” that makes the courts made the false declarations of the police as true.

The Supreme Court actually gives a chance for the accused to defeat “presumption of regularity.”  However, that chance is gravely insufficient.  The Supreme Court wants that the evidence that must be presented to destroy the “presumption of regularity” must be clear and convincing to show the ill motive of corruption or proofs of irregularity.

By nature, it is impossible to prove irregularity if the police officers happened to be experts in preparing documents to be filed against the persons they arrested for illegal drugs. 

The impossibility to prove irregularity in case the law enforcers are experts liars is borne by the fact that the only evidence of the accused is his word where he would testify that the officers who arrested him asked him money that when he failed to give the case of selling illegal drugs was filed against the accused.  He will always have no CCTV cameras because the law enforcers would ask money when there would be no CCTV camera facing them or there would be no witness.  A whisper by the officer was sufficient to make the demand for money.

Persons actually planted with illegal drug evidence is always at risk of conviction if his defense is that the officers who arrested him just arrested him even he was not caught doing a crime because he will always have no evidence to prove that the officers verbally asked money from him in exchange for freedom.  The officers will always be presumed to be telling the truth.

Let the jury system take over

Jury system does not give weight to the presumption of regularity.

All witnesses presented to the witness stand of the court shall be judged by the jurors depending on how they delivered the testimonies.

The testimonies of the police officers would be considered as true only if the jury says they were telling the truth.

The accused and the law enforcers stand on equal footing in the eyes of the jurors.

Those who will get the belief of the jury are those who truly deliver the testimony with the strong appearance of truth.

If the accused who was implanted with evidence delivered well his truth at the witness stand before the jurors, he will win.

What is your answer?
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