MEL STA.MARIA | EJK, our economy, and the International Criminal Court
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In the “Seminar for Journalists on the Rule of Law and Access to Justice” held last October 7, 2016, I discussed “Constitutional Rights on Access to Justice and the Case of Extra-Judicial Killings, Torture and Enforced Disappearance.” As expected, a journalist asked, what is extrajudicial killing or "EJK"?
In the Philippines, death as punishment cannot be meted out by human beings on human beings. Republic Act No. 9346 prohibits the death penalty. This is the societal imperative all must observe. The legal command all must follow. No one is above the law. Not even the Supreme Court can order death as punishment; neither can the President. For the death penalty to be imposed, the law must be amended to allow it. But even if an amendment is done, the President still has no power to order the killing of people because only the judiciary can impose punishment. That is the rule of law in our country .
Any death sentence ordered by any other entity or person outside of the courts is extra-judicial. And if the order is carried out, it is EJK, short for extrajudicial-killing - the commission of murder no less.
And though it is not yet technically a legal term used in our statute like parricide (murder of a relative), infanticide ( murder of a baby), or abortion (killing of a fetus), EJK is now specially used to highlight its gravitas over and above the other types of murder - that it is the brutal extermination of ordinary people, especially the poor, caused or executed by state and non-state actors. I will focus though on those perpetuated by persons in or with authority, connected with or influenced by government - like crooked law enforcers and vigilantes.
Because EJK is a crime, every time President Duterte says " I will kill you" or when he said, referring to 3,000,000 drug addicts, " I'd be happy to slaughter them", he, the head of state, conveys a deadly message discordant with the rule of law. Misinterpreted to their extreme, the declarations may be taken as words of encouragement, especially for people in authority like Philippine National Police (PNP) officers, to have the same motivation and objective. Put into action and ultimate fruition, it is EJK.
Why does President Duterte seem to have a liking for these kinds of remarks? We can only speculate: he might just want to say them without comprehending the vast presidential influence his statements can generate, OR he knows such influence but is just careless in his utterances, OR he, knowing such influence, makes such deadly remarks to lead rogue cops to misinterpret them as a license to kill without due process of the law. Your guess is as good as mine.
But, regardless of the reason, President Duterte’s subsequent assurance that he will pardon law enforcers who kill suspected criminals involved in drugs conveys a message of impunity. He even said in a meeting with his law school batchmates in Malacañang that he will have many “pre-signed” forms for pardon which can be shown upon arraignment. And even if he stated that he will pardon only those who are wrongly accused, misinterpretations can happen with deadly consequences. Under our law, presidential pardon is only granted to guilty persons. The message of the presidential-killing-utterances may be taken wrongly as a subtle directive to exterminate people involved in drugs, whether pushers or users, because, in the end, the President will forgive these killers anyway.
Also, his declaration to the police that “if there is a resistance that would place your life in jeopardy, then by all means shoot and shoot him dead” may have emboldened rogue cops or vigilantes to commit EJK under the pretext or claim of “resistance.” If not abated, the result may be a systematic and widespread mass-killing.
And this brings us to the often-used PNP excuse for killing, “nanlaban” or resistance, that has become part of the emerging EJK narrative. In our law, a person who kills somebody cannot be held criminally liable if it is proven that it was done in self-defense. But self-defense requires the following elements: 1.) unlawful aggression on the part of the attacker; 2.) lack of sufficient provocation from the defender; and 3.) reasonable necessity of the means employed to repel the attacker’s aggression. If one (1) of the three (3) elements is missing, the commission of the act is still murder. From the reported 3,000 EJKs ( and still counting), it was claimed that nearly half was “legitimate” because of “nanlaban”.
But mere “nanlaban” or “resistance” cannot be the only excuse. And if it were present at the time of the encounter, was the killing reasonable to repel the attacker? Even former President Ramos cautioned that it must not be necessarily “shoot to kill” but only “shoot to disable”. Was there absence of provocation from the police? Was there “unlawful aggression? We saw news where a mother, crying uncontrollably, stated that her son, the alleged drug addict, was already raising his hand in surrender but nevertheless was shot to death. The brother running to his ailing sibling was likewise gunned down. Simply “nanlaban” or resistance alone is not an excuse or a license to kill. And even if the life of the officers is placed in jeopardy, all three requisites for self-defense under the law must still be present to exculpate them from criminal liability. Otherwise there is no more rule of law.
Significantly, in almost all the news, the victims belong to the most vulnerable sector of our society: the poor. And this has led to the affirmation that rogue PNP officers victimize poor people - a bully’s typical attitude - or, simply, abuse of the powerful over the powerless. The situation is nearing not merely scary proportions, but a seriously appalling and alarming one.
EJK has become an international concern. Its perpetuation will have a direct impact on our international trade and ultimately the rest of our countrymen/women.
In a previous article (“Diplomacy, the President and damaging possibilities for the country”), I discussed the Generalized System of Preference Plus (GSPP) Status granted to the Philippines by the European Community (EU). If we lose that status, it will mean that about 6,800 Philippine products will be subjected to tariff entering 20 EU member countries whereas, under the GSPP, they will not be charged. If this happens, the Philippines would stand to lose billions of dollars.
The GSPP is non-reciprocal. This means that the Philippines has no obligation to provide EU members with the same privilege for their products entering the Philippines. The GSPP is an EU system to help underdeveloped countries in global trade. The only conditions are that the grantees have a good governance system, respect for labor rights and core human rights values. This is understandable because EU does not want to extend privileges to countries notorious for human rights violations.
In the ASEAN, after Myanmar (and other ASEAN countries) followed the lead of the Philippines and were granted GSPP status, the EU suspended the Myanmar grant because of violation of core human rights and labor conventions by the Myanmar dictators. But Myanmar changed its direction and has recently shown some improvement in these areas. It reapplied and EU reinstated its GSPP status.
Now the Philippine GSPP status is up for renewal next year. Because of the EJKs, the EU tried to remind the Philippines of its concern on its human rights situation. President Duterte, instead of taking this constructively, cursed EU with a middle finger sign to boot. Up to now, the bad-mouthing continues. There is a danger of losing GSPP status if EJKs continue. Undoubtedly, EJKs involve serious violations of human rights and a negative implications on proper governance.
On 13 October 2016 , the International Court of Justice (ICC) Prosecutor Fatou Bensouda issued an official press release which, referring to the reported 3,000 EJKs, included the following pertinent statements:
I am deeply concerned about these alleged killings and the fact that public statements of high officials of the Republic of the Philippines seem to condone such killings and further seem to encourage State forces and civilians alike to continue targeting these individuals with lethal force……
Let me be clear: any person in the Philippines who incites or engages in acts of mass violence including by ordering, requesting, encouraging or contributing, in any other manner, to the commission of crimes within the jurisdiction of the ICC is potentially liable to prosecution before the Court.
This is a serious matter. The Philippines is a signatory to the Rome Statute, the international treaty, creating the International Criminal Court (ICC) and therefore is bound by its mandate. Under the convention, persons who incite or commit crimes against humanity such as genocide and mass-killing may be haled to the ICC, prosecuted and punished.
Murders will be tantamount to mass killing if they are done systematically and become widespread. In previous international court decisions, particularly in the Rwanda genocide cases, aside from the leaders and their cohorts, members of media, government and private, who aided in instigating or encouraging the system of killings, were convicted as well.
As citizens, we should strongly reject the practice of EJK, even if it concerns suspected criminals involved in illegal drugs. We should express our disgust and opposition in every media platform, including the social media. The government must respond by making sure that all those who are liable are immediately brought to justice. The families who were unduly wronged must also be vindicated. This must be so, if we still believe in the rule of law and not the rule of the mighty bully.
The killings must stop. We cannot just stand idly by and watch human life become more expendable day by day. EJK cannot be justified under the pretense that the “nanlabans” are less human than we are. The moment we start thinking this way, we become dehumanized ourselves.
Atty. Sta. Maria is the resident legal analyst of TV5 and co-host of the daily weekday show "Relasyon." He is also dean of the Far Eastern University Institute of Law.