There is, indeed, a crime that goes by the name of “extrajudicial killing” or EJK. It is commonly defined as a killing committed by an agent of the state without the sanction of a judicial proceeding.
American law has offered a definition of EJK in section 3a of the United States Torture Victim Protection Act, which states that it is “a deliberate killing not authorized by a previous judgement pronounced by a regular constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
Unfortunately, there is no clear definition of EJK in the Philippines. Congress has yet to provide a statutory definition, while the Supreme Court appears to have a broader definition to include even private parties as respondents in the issuance of writs of amparo and habeas data, which are legal remedies used against enforced disappearances.
The only thing that is certain is that there could never be a court-sanctioned killing in the Philippines, considering that the death penalty has been abolished under the 1987 Constitution. Although it was restored through an act of Congress in 1999, that law only covered heinous crimes, and it was later abolished again, in 2006. Under the present constitutional environment, there could never be a judicial killing, and hence all killings may be considered “extrajudicial,” thereby making the label superfluous, to say the least.
However, this view is challenged by human rights advocates who argue that the death of any person – whether as a suspected criminal or already a convict in the custody of the agents of the state – should be labeled as an EJK. This is a fair definition, considering that holding suspects or convicted criminals in their custody already imposes on state agents the responsibility of ensuring that their rights are respected. It is in this context that the burden of proof should shift on the agent of the state to prove that any death while in custody is warranted and any claim that such is the result of an act of self-defense needs to be proven beyond reasonable doubt.
In my opinion, when the victim is in custody, there is already a presumption that applicable international and Philippines laws on human rights of prisoners have already taken into effect that any death will have to be assumed to be extrajudicial in nature, more so that we do not have a death penalty.
However, the problem now exists in cases of deaths where custody is not yet perfected, when the state agent is still in the process of taking custody of a suspect. Can these be properly labeled as EJK? Currently, these cases are already investigated internally motu propio by the state through its internal affairs mechanisms, to ensure compliance with the international standards, where states are obliged to ensure that human rights are respected, even of criminals.
I believe that in the interest of pursuing justice, that such should be treated as a possible case of an EJK, provided that the presumption shifts to the one making the case that such was done in excess of self-defense. It will be the responsibility of the victim’s kin, human rights advocates, or a body such as the Commission on Human Rights to prove in relevant proceedings that such was indeed an EJK. I would like to believe that the presumption of regularity should also be accorded to the police officer or the agent of the state. Under the principle of due process, and considering that EJK is a crime, guilt should be declared only upon proof beyond reasonable doubt.
One should be very careful therefore in labeling any death of a suspect who is not yet in custody to be EJK, for such would amount to prejudice.
I find it irresponsible for anybody to automatically label as EJK the case of anyone found in the streets with tell-tale signs of being drug-related, for it assumes that such death was in the hands of agents of the state, when it could be from non-state actors, such as drug-syndicates. While these could include rogue police officers involved in the drug trade, these are done outside their state-sanctioned duties, and hence could not qualify as EJK.
Amid the horrors of deaths pinned on cardboards, what is clear is that every responsible citizen should endeavor not to appropriate the label EJK as a resource to bring down a presidency, but to bring justice to those who are killed outside the bounds of due process and judicial determination. And we can start serving the interest of justice when we exercise prudence in ensuring that only legal rubrics are used in our taxonomy of deaths, and that only those that are truly done by state agents in excess of legal warrants are named as extrajudicial in character. It is only through this that we can depoliticize the term and free it from partisan abuse.