Pubdate: Mon, 05 Sep 2016
Source: Philippine Daily Inquirer (Philippines)
Column: Flea Market of Ideas
Copyright: 2016 Philippine Daily Inquirer
Author: Joel Ruiz Butuyan


IT'S A mantra that top government officials keep chanting: Police 
killings enjoy a presumption of regularity.

This mantra is used in answer to voices of protest when someone is 
killed by police under suspicious circumstances, such as when an 
arrested suspect is killed inside a police car for allegedly 
attempting to grab an officer's gun. This mantra is increasingly 
being heard as response to criticism against the mounting number of 
people killed by police in the administration's war on drugs. A total 
of 929 people have been killed during police operations from July 1 to Aug. 31.

President Duterte has repeatedly invoked this presumption while 
defending police killings. Even Philippine National Police chief 
Ronald dela Rosa, Solicitor General Jose Calida, and Sen. Panfilo 
Lacson vouch for its validity.

There is a presumption of regularity in the performance of government 
functions in general, but this presumption does not apply to police killings.

The general rule is that policemen only have the power of arrest. And 
policemen can essentially use the power of arrest in only two 
instances: 1) when a court has issued a warrant of arrest, and 2) 
when a person commits a crime in the presence of the police 
(warrantless arrest).

Even when a suspect resists arrest, policemen do not automatically 
have the power to kill the suspect. In such a scenario, the duty of 
policemen is to use reasonable force in order to subdue and take the 
(living) suspect into custody.

It is when the resistance employed by the suspect poses "imminent 
danger" to the life of a policeman or any other person that an 
exception to the power of arrest arises.

When there is imminent danger to any human life, policemen will be 
empowered to use deadly force even to the extent of killing the 
suspect. The imminent danger to human life is called a "justifying 
circumstance" (of self-defense, or defense of a stranger) that makes 
the killing lawful.

Is the existence of a justifying circumstance presumed in police killings?

The Supreme Court has ruled that a justifying circumstance is not 
presumed in police killings. Policemen who kill a suspect have the 
burden of proving the existence of such a circumstance.

One relevant ruling of the Supreme Court was issued in 2013 in 
Aguilar vs Department of Justice et al. (G.R. No. 197522). This case 
involved police and military personnel who arrested Francisco Aguilar 
for alleged extortion activities in Mindoro Occidental. Aguilar was 
handcuffed and taken on board a military jeep. The police claimed 
that, along the way, Aguilar tried to grab a grenade, so PO1 Leo 
Dangupon shot and killed him. The heirs of Aguilar claimed that he 
was a victim of extrajudicial killing, and filed murder charges 
against the security personnel.

The DOJ and the Court of Appeals dismissed the complaint by agreeing 
with the argument that "Dangupon enjoys the presumption of innocence 
and regularity in the performance of his official duties, which were 
not sufficiently rebutted" by Aguilar's heirs.

On appeal, the Supreme Court ruled that "when the accused admits 
killing the victim, but invokes a justifying circumstance, the 
constitutional presumption of innocence is effectively waived and the 
burden of proving the existence of such circumstance shifts to the 
accused." Since Dangupon admitted killing Aguilar, he had the burden 
of presenting evidence that the killing was attended by a justifying 

The high court found that Dangupon's claimed justifying circumstance 
of self-defense was contradicted by evidence that Aguilar had 
voluntarily surrendered, was handcuffed, and could not have grabbed 
the grenade. The autopsy report also showed that Aguilar suffered 
multiple lacerations, mauling injuries, and five gunshot wounds all 
over his body. The high court reversed the dismissal and ordered the 
filing of murder charges against the policemen.

Another relevant case that the Supreme Court ruled on in 1989 is 
Ortega vs Sandiganbayan (G.R. No. L-57664). It involved policeman 
Angelito Ortega who was directing traffic in San Pablo, Laguna, when 
a pedestrian sought his help, claiming to have been a victim of 
extortion committed by one Marciano Donato. Ortega proceeded to where 
Donato was and tried to arrest him. In the course of the arrest, 
Ortega alleged, Donato tried to stab him with a knife, so he shot and 
killed Donato.

Charged with homicide, Ortega raised the justifying circumstance of 
self-defense. The Supreme Court declared that "where the accused had 
admitted that he is the author of the death of the victim and his 
defense anchored on self-defense, it is incumbent upon him to prove 
this justifying circumstance to the satisfaction of the court."

The high court added: "To do so, he must rely on the strength of his 
own evidence and not on the weakness of the prosecution, for the 
accused himself had admitted the killing. The burden is upon the 
accused to prove clearly and sufficiently the elements of 
self-defense... Otherwise the conviction of the accused is inescapable."

The Supreme Court found that Ortega's claim of self-defense was 
contradicted by the autopsy report, inconsistencies in his testimony, 
and his failure to present Donato's knife, among others. It convicted 
Ortega of homicide.

These cases should serve as cautionary tales for policemen who kill 
in gross violation of the law and who will interpret President 
Duterte's assurance of protection as blanket authority to kill with 
reckless abandon. Besides, the President will be in power for only 
six years. Liability for murder expires only after 20 years. The law 
has a long arm. And a long memory.
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MAP posted-by: Jay Bergstrom