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MEL STA.MARIA | EJK, our economy, and the International Criminal Court

A victim of summary execution in Manila, with the "cardboard justice" that tags the dead without giving them the chance to defend themselves. AFP FILE PHOTO
The online news portal of TV5

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.