S1L5 – NEA is Applying the Doctrine of “Presumption of Regularity” Totally wrong
January (Bar Exam) is just around the corner. We have very little time to cram as much information as we can into our law students’ heads.
So for those who are asking, this is the reason why I “sneak in” some basic legal concepts using short anecdotes in my Facebook posts. I figure if I put things in real life context, sprinkle a little bit of humor in it, then my hapless students might absorb and remember the “lecture” better.
I am not particularly isolating the BENECO crisis for examples’ sake, either. It just happens that the actions of NEA are such a smorgasbord of constitutional violations that you can’t help but lecture off of them!
For example, I have never before seen such an absurd over reliance on the so-called “presumption of validity of official documents.” Someone is even saying, “my appointment is valid until annulled.”
I always tell my students don’t listen to ignorant people because you will become like them. I tell them ONLY READ THE LAW. Nothing but the law.
Presumptions are found under Rule 131, Sections 2, 3 and 4 of the Rules of Court on EVIDENCE. I realize suddenly I now have readers who are not law students, so I cannot go into a long exposition of what these provisions mean. I must only try to demonstrate them.
So imagine if our City Council, meeting with quorum and voting unanimously, passed an ordinance “Reimposing the Death Penalty for the Crime of Jaywalking, and Providing for the Immediate Imposition of the Penalty therefor. “
Can we assume that the City Council followed its internal rules regularly and properly in approving that ordinance? Sure. Why not, it’s their own rules.
But suppose Pedro is caught jaywalking, and is scheduled for execution tomorrow, must we honor the “presumption of validity” of that ordinance?
Of course not.
By the time we are through in court getting that ridiculous ordinance declared unconstitutional some 2, maybe 3 years later, the dearly departed Pedro is already singing in the tenor section of heaven’s choir, executed for jaywalking under an ordinance that everybody “presumed valid until annulled.”
In fact, that ordinance was enacted “ultra vires” (beyond its powers) by the City Council. It is “void ab initio” (invalid from the very beginning) so it did not create any office, rights or privilege and could not impose any obligations on anyone.
You see there is no such thing as any order, resolution, appointment—that is “valid until annulled.” It is not found in the law. I have not read any Supreme Court decision that said an appoinment is “valid until annulled.” The validity of an appointment order, or any executive order for that matter, derives from its content.
Suppose NEA appointed its own administrator, would that appointment be valid until annulled? Of course not. So what it cannot do even in its own backyard, it cannot do in BENECO.
The key, therefore, is to look at the content of that appointment order—which we presume to have been issued with regularity in the performance of official function by NEA (are you getting the point now?).
An appointment is a certification that the person being appointed possesses all the qualifications and none of the disqualifications required for the position to which she is being appointed.
Why waste time debating about the presumption of validity of that appointment? You don’t even need a mere disputable presumption that it is valid. You can already make a conclusive determination if it is valid. Right now.
But instead of doing that, NEA is focusing on the defiance of BENECO in refusing to accept an appointment order whose validity anyone can evaluate in under five minutes.
It’s a simple matter of addressing the issue, instead of deflecting it.
If the question is: “Is the appointee a BENECO member?” The answer is NO. Not, “she scored the highest score in the final interview.”
If the question is: “Does NEA have the power to appoint the GM of a non-ailing cooperative?” the answer is NO. Not, “NEA is responsible for infusing millions into BENECO.”
If the question is: “Is the appointee an engineer, or at least a technical-oriented person?” The answers is NO. Not, “well, lawyers are ‘legal engineers’ in a way because they do statutory construction, you see the word ‘construction’ is there.”
I guess it’s a cultural thing. We Filipinos could never answer straight.
“Maganda ba yung babeng nililigawan mo?”
“Mabait. “
So some very confused lawyer has got it all wrong. What the Rule disputably presumes as valid is the regular performance of official function by public officer(s).
This presumption of validity does not extend to the PRODUCT or RESULT of that performance of function. Just like in my example above, the City Council followed its rules. They regularly performed their function in passing an INVALID ordinance. The act and the product are two different things. One has a presumption favorable to it, the other one none.
If we follow NEA’s philosophy, that a regulator cannot be questioned because all of its actions–as well as fruits of those actions– enjoy the presumption of validity, we would be espousing a dangerous dogma that government officials can do no wrong.
That’s the equivalent of having two rules which actually operate only as one. RULE NO. 1 is “I am always right” and RULE NO. 2 is “in case I am wrong, refer to Rule no. 1.”
That’s how dictatorships are born.
The author is a writer and lawyer based in Baguio City, Philippines. Former editor of the Gold Ore and Baguio City Digest, professor of journalism, political science and law at Baguio Colleges Foundation (BCF). He is a photographer and video documentarist. He has a YouTube channel called “Parables and Reason”