NOYNOY IS WRONG TO SAY THERE ARE NO EJKs

Former President Noynoy Aquino.

On the occasion of Sen. Ninoy Aquino’s 34^th death anniversary, the son, former President Noynoy Aquino – in an answer to questions regarding the spate of killings taking place under Duterte’s drug war – said that there are no extrajudicial killings (EJKs) taking place in the country because there is no judicial killing. No judicial killings, ergo no extrajudicial killings goes his reasoning.  He added that these killings were simply murders.

President Aquino’s apparent logic is that in order for these killings to be classified as EJKs, there must also be killings being authorized by the courts under a death penalty law. The logic of opposites: night and day, black and white, legal and illegal, judicial and extrajudicial. The logic is, however, over-simplistic and disregards the essential elements of what define the term extrajudicial killings.

If indeed EJKs can only exist if there is judicial killing, why then did the Supreme Court promulgate the rules on the Writ of Amparo on October 24, 2007 with the objective of addressing the problem of extrajudicial killings and enforced disappearances? Thus, in Balao, et la., v. Macapagal-Arroyo, et al, G.R. No. 186050, 186059 (December 13, 2011), the Supreme Court pronounced the following:

The Rule on the Writ of Amparo was promulgated on October 24, 2007 amidst rising incidence of extralegal killings and enforced disappearances. It was formulated in the exercise of this Court’s expanded rule-making power for the protection and enforcement of constitutional rights enshrined in the 1987 Constitution, albeit limited to these two situations. (Emphasis added).

In the earlier case of In re Rodriguez v. Macapagal-Arroyo, GR Nos. 191805, 193160 (Nov. 15, 2011), the Supreme Court said that the Writ of Amparo “serves both preventive and curative roles in addressing the problem of extrajudicial killings and enforced disappearances. (emphasis added)”

It is noteworthy that the death penalty was abolished by Congress under RA 9346 (An Act Prohibiting the Imposition of the Death Penalty in the Philippines) in June 2006 and has not since then been re-imposed. Therefore, this recognition by no less than the Supreme Court of the existence of extrajudicial killings despite the absence of the death penalty in our statute books clearly contradicts President Aquino’s notion that for killings to be categorized as EJKs the death penalty must be in existence that will authorize the courts to carry out judicial killings.

For added context, the Writ of Amparo is a legal remedy whereby an individual whose right to life, liberty and security is violated or threatened can ask protective orders from the courts. In a report by the United Nations, there were 903 documented cases of extrajudicial killings from January 2001 to March 2008. In response, the Supreme Court created the Melo Commission to promulgate the Amparo rules.

Going now to the definition of EJK, the Supreme Court in the Balao case defined EJK as “killings committed without due process of law, i.e., without legal safeguards or judicial proceedings.” Thus, the constitutive elements of EJK are the following: (1) there was a killing; and (2) the killing was committed without due process of law. This definition is similar to the definition given under the United States Torture Victim Protection Act of 1991 which defines EJK under Section 3(a) thereof as the “deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. . . .” 

Nowhere under both definitions can be found the existence of judicial killing as an indispensable element of EJK. Clearly the existence of EJK is not premised on the existence of judicial killing.  Besides, if we follow President Aquino’s logic, it can lead to ridiculous conclusions. For example, one can argue that since there is no legal killing (because the death penalty has been abolished), there can be no illegal killing; since there is no legal prostitution in the Philippines there can be no illegal prostitution.

Notably, the phrase “without due process of law” under the second element of the definition indicates that the killing was carried out by agents of the State or State actors, such as the police or military.  In legal principles whenever due process is at issue it involves the participation of the State or the government under the concept of "State Action." In other words, the killing is carried out by law enforcers or the military without affording the victim his or her rights to due process of law.  A killing is carried out without legal authority when there is no law authorizing it (no death penalty) or the legal processes required to carry out the execution (i.e., charges are filed in court, evidence pro and con is presented, there is finding of guilt by the court) are not observed.  

Although there is a growing trend to not only limit EJKs to State actors, just the same this tendency still recognizes the participation of the State even if the killings were carried out by private individuals to categorize them as EJKs.  State participation usually takes the form of providing encouragement or support or organizing private individuals to carry out the killings.  Private armies and death squads come to mind in these cases.

By taking the position that the spate of killings taking place right now, such as the execution of Kian Lloyd Delos Santos, are not EJKs but simply murders, President Aquino has committed the mistake of unwittignly downgrading the seriousness of the problem involving these killings.