Cayetano uses restrictive EJK definition, experts say

MANILA, Philippines — Sen. Alan Peter Cayetano may have used a restrictive definition of extrajudicial killings (EJKs) not applied nationally in the Philippines by watchdogs or the state body on human rights, nor internationally before an assembly such as the United Nations.

In a presentation during the Universal Periodic Review of the UN Human Rights Council, Cayetano blasted the media for echoing “alternative facts” he claimed were sourced from critics of President Rodrigo Duterte.

READ: PNP figures give credence to Cayetano claim on killings

The senator also questioned critics of Duterte for using a different definition of EJKs compared to the past administration.

“Administrative Order 35 signed by then President Benigno Aquino III defined EJKs as the killing of the members or advocates of cause-oriented organizations like labor, environment or media activists resulting in very low number of supposed EJKs in the past administration,” he said.

“However, for the current administration, a different definition is being used. EJK now refers to any death outside of those caused by natural causes, accidents or those ordered by the courts.”

READ: At UN, Cayetano blames media for 'alternative facts' on drug war

In a release prior to the UPR of the Philippines, Cayetano said he is using the definition of EJKs stated in Administrative Order No. 35 (AO 35).

AO 35, signed in 2012, directs the creation of the Inter-Agency Committee (IAC) on extralegal killings, enforced disappearances, torture and other grave violations of the right to life, liberty and security of persons. The IAC, headed by the Department of Justice monitors cases of EJKs, enforced disappearances, torture and other human rights violations.

READ: UPR: Fast facts on the UN review of Philippine human rights

Other members of the IAC are the departments of the Interior and Local Government, Defense, Office of the Presidential Adviser on the Peace Process, Office of the Presidential Adviser for Political Affairs, Presidential Human Rights Committee, Armed Forces of the Philippines, Philippine National Police and the National Bureau of Investigation.

The order defines EJKs as “killings wherein the victim was 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.”

The order adds that a perpetrator can either be a state agent or non-state agent who targeted a victim due to actual or perceived membership, advocacy or profession, and that the circumstances of the attack must reveal a deliberate intent to kill.

Cayetano said killings outside the categories in AO 35 are considered either as homicide or murder.

RELATED: Philippines: Drug war deaths classified as murder, not EJK

The Philippines top cop Ronald dela Rosa also made a similar claim saying that killings of drug offenders are considered as homicides.

Inapplicable definition

The strict terminology in AO 35, however, cannot be used as the national definition as the wording specifically applies to the cases handled by the IAC, which was tasked to probe clear-cut EJK cases rampant that time.

The order did not include killings related to common criminals as it is not part of the IAC’s “focused mandate.” Deaths under this nature shall instead be “addressed by other appropriate, mechanisms within the justice system.”

“Kasi nung panahon ni Gloria Macapagal-Arroyo mataas din ang EJKs pero more politically motivated kaya nagkaroon ng definition ang ating Supreme Court ng EJK,” Rose Trajano, secretary general of the Philippine Alliance of Human Rights Advocates, said.

In a 2008 ruling, the Supreme Court (SC) defined EJKs as “killings committed without due process of law, i.e., without legal safeguards or judicial proceedings.” A 2009 SC ruling also recognized that “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.”

From 2012 to June 30, 2016, rights monitor Karapatan documented 249 victims of EJKs.

Trajano added that the government could not quote AO 35 as “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.”

CHR: We follow international terminology

Likewise, the Commission on Human Rights said the agency did not change the definition of EJKs.

“What was mentioned in the definition of AO 35 just represents a prioritization of extrajudicial killings that were happening at that time and right now we know that the situation has changed,” Commissioner Karen Gomez Dumpit said in an interview.

“We always anchor our statements and our terms in accordance with international standards.”

CHR spokesperson Jacqueline de Guia also affirmed that the definition of EJKs under AO 35 is applicable only to the IAC, in particular to the cases it would handle.

“Based on the press statement by Professor Philip Alston, UN special rapporteur on extrajudicial executions, during his mission to the DR 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,’” De Guia told Philstar.com in a text message.