THERE is an emotional currency attached to the word “extra-judicial killing,” or EJK. It is also a politically loaded one, that people who use it are automatically making a prejudgment. EJK cannot be right. There can be no justification.
The term has been so weaponized that it has fueled the relentless campaign to undermine, if not unseat, President Duterte.
At the outset, if one becomes technical about the matter, to assume that an extra-judicial killing is anathema to human rights, is to somewhat accept that judicial killing is justified. Judicial killing is one where the state, in its power to dispense justice to those who transgress its criminal laws, causes the death of its subjects who have been found guilty of a crime warranting such extreme punishment. Considering that the state has the monopoly over the legitimate use of violence, and a right to protect itself, under international law, judicial killing is not a ground to charge states of any violation, even if treaties proscribing capital punishment have been passed where countries, including the Philippines, are signatories. After all, 34 out of the 50 states in the US still impose the death penalty. China and Russia have theirs, as well as Saudi Arabia, Iran and Pakistan. And none of these state parties have been hauled to the International Criminal Court for inflicting death on their sentenced criminals.
It is a fact that the Philippines is one of the countries where the death penalty has been abolished, although at present there are moves to restore it on drug-related crimes. Hence, at present there are no judicial killings in the Philippines, which then lead us to the logical conclusion that either there are no extra-judicial killings, or all killings in the country are extra-judicial. If the latter, then the term loses its functional value.
Nevertheless, it behooves one to confront the reality that some people are killed in police operations, some of whom are killed under suspicious circumstances. It is in this family of cases where drug-related deaths have become the base where the use of EJK has found a firm grounding. The President has been brought to the ICC for allegedly committing EJK which constitutes crimes against humanity. He has been pilloried in the New York Times, by Reuters and CNN, and by Human Rights Watch and Amnesty International, for committing EJK.
Beyond logic, however, lies what is in the law. In the absence of a clear legal definition of an EJK, the Aquino administration, through the then Secretary of Justice Leila de Lima issued Administrative Order 35 in 2012, which to this date is the only existing attempt to define what an EJK is. According to AO 35, EJK, which is synonymous with extra-legal killing, is a killing with the following elements present:
1. The victim was either
a) A member of or affiliated with an organization, to include political, environmental, agrarian, labor, or similar causes; or
b) An advocate of above-named causes;
c) A media practitioner; or
d) Person or persons apparently mistaken or identified to be so.
2. The victim was targeted and killed because of his/her actual or perceived membership, advocacy or profession.
3. The person responsible for the killing is a state agent or a non-state agent.
4. The method and circumstances of the attack reveal a deliberate intent to kill.
It should be noted that nowhere in the above enumeration can we find that drug criminals, or criminals in general, can fall victim to an EJK. In fact, AO 35 even stipulated that “killings related to common criminals and/or the perpetration of their crimes shall be addressed by appropriate mechanisms within the justice system.”
It therefore behooves us to ask how the opposition politicians, who are mainly former allies of President Aquino, and Leila de Lima herself who crafted the AO, can now paint President Duterte of being guilty of propagating a culture of death on the sheer allegation that he approves of the EJK of drug criminals. How can they accuse him of overseeing an epidemic of EJKs, when the very AO does not consider acts perpetrated against drug criminals as covered by what an EJK is?
How can they accuse the President of committing an act that is not legally defined within our own laws and regulations?
Critics of the President would, aside from accusing him of being guilty of perpetrating EJKs, further paint the spate of killings as having thrown the country into a deep, dark period of impunity and wanton abuse. Leni Robredo’s words to describe our state of existence are classic. For her, we are a people mired in helplessness and hopelessness.
Indeed, this is not to be settled by semantics alone. For one could also argue that whatever is the label, people are dying. Children are getting orphaned. Women are getting widowed. Children die much ahead of their parents, which is contrary to the law of nature.
But prudence should dictate that in producing a discourse on death and violence, the bottom line must be to deploy labels to serve the interest of justice and equip the law with potent weapons.
EJK, unfortunately, has been deployed by political partisans with the intent to serve the interest of those who will benefit from it politically.