Why defining 'extrajudicial killings' in law is a vital step toward accountability

MANILA, Philippines — A bill seeking to lay down the definition of "extrajudicial killing," a term that has found its way to the daily news cycle since the start of Duterte administration, has been refiled at the 18th Congress.

This is Sen. Leila De Lima’s second time to file the bill entitled “An Act defining Extrajudicial Killing, providing for its Penalty and Other Purposes.”

It seeks to define EJK as “the unlawful, and deliberate killing of targeted individuals or groups thereof, carried out by agents of the State and under its order of acquiescence in lieu of arrest, investigation and prosecution.”

The proposed measure also seeks to include “summary killing perpetrated by private individuals for purposes of carrying out on their own or in the context of vigilantism, a campaign or policy of the State.”

Administrative Order 35: Definitive or restrictive?

In 2012, President Benigno Aquino III signed Administrative Order No. 35, which created the Inter-Agency Committee on Extra Legal Killings, Enforced Disappearances, Torture, and Other Grave Violations of the Right to Life, Liberty, and Security of Persons.

The Philippine National Police operational guidelines on the order defined “extralegal killings or extrajudicial killings” as when the victim was either “as a member of, or affiliated with an organization, to include political, environmental, agrarian, labor, or similar causes; or an advocate of above-named causes; or a media practitioner or person(s) apparently mistaken or identified to be so."

A victim who was killed due to “actual or perceived membership, advocacy or profession,” is considered an EJK victim.

The Duterte administration has used AO 35 as its basis for what it considers an extrajudicial killing, a definition that rights advocates have said is restrictive.

The Commission on Human Rights, in a 2017 Philstar.com report, said that they define extrajudicial killings “in accordance with international standards.”

"Based on the press statement by Professor Philip Alston, UN special rapporteur on extrajudicial executions, during his mission to the [Democratic Republic of the] Congo in 2009, the international law definition of extrajudicial execution 'encompasses any killing by government forces as well as killings by any other groups or individuals which the government fails to investigate, prosecute and punish when it is in a position to do so," CHR said.

Rose Trajano, secretary general of the Philippine Alliance of Human Rights Advocates, said in 2017 that the government cannot limit itself to AO 35  since “the general definition of EJKs, even at the international level, is any death sanctioned or with the acquiescence of the government outside the due process or the rule of law.”

RELATED: PNP: 6,225 drug-related deaths, no extrajudicial killings

In an interview with Philstar.com, also in 2017, John Fisher, HRW advocacy director, said that "extrajudicial killings simply means this is happening without due process, without judicial process or court hearings or legal warrants."

Fisher said the government "cannot get to define those bodies away."

In a related interview, Presidential Communications Secretary Martin Andanar said there is no such thing as extrajudicial killings in the Philippines.

"We do not have judicial killing, we do not have capital punishment. It is prohibited to kill in our country. So why is there extrajudicial killing when there is no judicial killing? Why put ‘extra?’ So there are no extrajudicial killings in our country," Andanar said in a radio interview in October 2017.

RELATED: Roque: Police can't define EJKs

Pursuing justice for EJK victims difficult for lack of legal definition

Lawyer Jacqueline De Guia, CHR spokesperson, told Philstar.com Thursday that the lack of "precise definition" of an extrajudicial killing in our laws is a challenge in seeking accountability of EJK perpetrators.

"There is a need to firmly establish accountabilities and corresponding penalties, especially if extrajudicial killings are carried out by the State or any of its agents," De Guia explained.

A clear legal definition of extrajudicial killings would also "delineate it from crimes of murder or homicide so as to recognize the gravity of the human rights violation committed in contrast with other crimes under the Revised Penal Code carried out by individuals."

"In the end, we must reiterate the primary obligation of the government to protect and promote the rights of all. Hence, any summary killing, be it carried out by groups or individuals, especially done in furtherance of State policy, should be punished commensurate to the graveness of the indignity done," De Guia also said.

READ: Government can't 'define dead bodies away,' says HRW

Court jurisprudence

"Extrajudicial killing" does not have a set definition in Philippine jurisprudence.

In 2008, in Secretary v Manalo, the SC defined “extralegal killings” as "killings committed without due process of law, i.e., without legal safeguards or judicial proceedings."

In 2009, the tribunal recalled that the records of the SC Committee on the Revision of Rules (Committee) “reveal that the drafters of the Amparo Rule initially considered providing an elemental definition of the concept of enforced disappearance.”

“In the end, the Committee took cognizance of several bills filed in the House of Representatives and in the Senate on extrajudicial killings and enforced disappearances, and resolved to do away with a clear textual definition of these terms in the Rule,” the SC, in Razon Jr. v Tagitis, said.

The same ruling also said: “Extrajudicial killings and enforced disappearances, by their nature and purpose, constitute State or private party violation of the constitutional rights of individuals to life, liberty and security."

EJK investigations

There is a pending plea before the SC that alleges extrajudicial killings during the Duterte administration, a claim that the government denies, saying the killings are not state sponsored and are not government policy.

Two groups of families whose loved ones were killed in the course of the government's  "war on drugs" sought relief from the Supreme Court in 2017, but the tribunal has yet to resolve their petitions.

In 2018, a Caloocan court issued the first conviction of police officers in the context of the 'war on drugs', when it found three police officers guilty for the murder 17-year-old Kian delos Santos during a drug sting in 2017. The 35-page ruling of Caloocan RTC Branch 125 Presiding Judge Rodolfo Azucena Jr. however did not mention EJK in his ruling.

READ: On Kian's slay, court tells cops: Murder 'never... a function of law enforcement'

In the global landscape, meanwhile, the International Criminal Court and the Office of the United Nations High Commissioner for Human Rights are looking into thousands of killings undder the Duterte administration.

The Palace has strongly rejected both the investigations and the allegedly bloated numbers that human rights groups and critics of the policy have used. While the government has acknowledged the deaths of 5,526 "drug personalities" in anti-narcotics operations—the Philippine National Police last month said there were 6,600—groups have given estimates of up to 27,000.

The Philippine government has consistently decried the international community’s “interference” in domestic policy.