Aug 15, 2013 LEGAL ADVISORY [1st Half of September] SUBJECT: Filing of case by police, a ministerial duty or discretionary duty? Police officers are considered public officers because they are holding a public office to which they are appointed. Public office is not a structure or a building but the right, authority and duty created and conferred by law, by which an individual is given sovereign functions to be exercised for the benefit of the public. Under the law, public officers are given powers and duties. These duties are classified into two according to their nature: first; is ministerial, and second; is discretionary. Ministerial – a duty is ministerial when it is absolute, certain, and imperative involving merely execution of a specific duty arising from a fixed and designated facts. It is also defined as one where the public officer performs an act on a given facts, and in a prescribed manner, without regard to, or the exercise of, his own judgment upon the propriety or impropriety of the act done. In simple terms, ministerial duty is one where the action to be taken by a public officer is specifically given by law, and he is not allowed to use his discretion or reason as to the action’s propriety or impropriety. Discretionary- this is the opposite of ministerial duty. It is a duty which requires the exercise of reason to accomplish the objective, and discretion, in determining how the act shall be done or the course to be pursued. Discretion arises when the act maybe performed in one or more ways, either of which would be lawful, and where, it is left to the judgment of the performer to determine in which way it will be performed. Discussion: Given the above definition, an analysis as to what classification the filing of a case by the police belongs is proper. Usually, investigators at police station handle criminal cases based on the complaints of customers against suspects. Some suspects, if they can still be arrested without warrant, are apprehended and subsequently charged before the prosecutor for inquest. For those who are not arrested, and for those who cannot be arrested without a warrant, a case is filed by the investigator through the so-called regular filing as opposed to the inquest. In regular filing, the investigator relies on the testimony of the witnesses, documentary and object evidence that are collected in due time establishing the guilt of the suspect. So, in here, there is no problem because the investigator is able to prove on account of his investigation that the customer is right in complaining the suspect. In addition, the investigator is able to establish bases for the filing of the charge. But what if a customer reports to the police station a suspect who upon investigation turns out to be the innocent one, instead, the guilty one appears to be the customer? Or what if a customer reports a crime, indicating therein a suspect, who upon investigation, the police is not able to make a prima facie case? ARE THE POLICE OBLIGATED UNDER THE LAW TO COMPLY WITH THE WISHES OF THE CUSTOMER IN FILING A CASE AGAINST THE SUSPECT? The answer lies on how we classify this duty, is it ministerial or discretionary? The objective of investigation is to verify the truth behind the occurrence of the crime, especially the culprit behind it. The ultimate purpose is not the filing of the case which is only secondary, but to see to it that justice is done – culprit goes to prison, and the innocent unburdened of the afflictions brought by trials. In the first example above, if we will follow the wish of the customer, we will be filing a case against an innocent person, in the second example, we will be filing a half-cooked case susceptible from dismissal by the prosecutor during the preliminary investigation stage. The latter will not even reach the chamber of the judge. The filing of both cases will create an injustice- charging of wrong person in the first example, and pointless dismissal in the second example- and will be a waste of government resources. Hence, to finally answer the question on whether or not the filing of a case a ministerial duty or discretionary duty, IT IS OPINED THAT IT IS BOTH A MINISTERIAL DUTY AND DISCRETIONARY DUTY. The filing of the case is ministerial, meaning; he has the absolute obligation to file under sanction of administrative penalty, if the police have a prima facie case against the suspect, otherwise, it is discretionary. It is also discretionary as to whom the case shall be filed against, meaning, a police does not necessarily have to follow the wish of the customer in filing a case against a particular suspect, if the evidence points to another as the one is liable. At any rate, the police have the duty to see to it that guilty are prosecuted, and that innocent are spare from trial. The police do not have the duty to follow the flimsy request of a customer to file a case without basis. In both the examples given above, if the police are under obligation follow the customers’ request, regardless of the evidence at hand, then, the police must be saying that the filing of the case is ministerial on their part. Then we see the evil effects as explained above. Surely, the law does not contemplate that situation. In addition, if we are to uphold that the filing of the case is ministerial, it will create a ridiculous situation where the police file a complaint [based on the customer’s demand] with attachment and pieces of evidence gathered by police contrary to the complaint itself. Next Advisory: Restrictive Custody, its Meaning and Implications
Posted on: Mon, 02 Sep 2013 11:54:54 +0000
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