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. 

FALSE EQUIVALENCY

Lifeless body of Kian Delos Santos being carried by police.

Pictures of people who have been raped or killed by alleged drug addicts with captions asking why there was no rally held for them by the same people who held rallies for Kian Lloyd Delos Santos, the 17-year old killed by policemen under questionable and suspicious circumstances, are being circulated on social media. The question of why anti-Duterte lawmakers, like Trillanes and Hontiveros, have not visited these victims’ wake is also being asked.

The problem with this argument is that while the case of these crime victims is the same as that of Kian – all of them were brutally killed – the similarity ends there. The former were killed or victimized by criminals who may have been drug-crazed, but Kian was killed by the police. Let us pause and absorb this well: killed by the police (with emphasis). The police are supposed to be the guardians and protectors of the people; they are supposed to enforce the rule of law; preserve peace and order; stop and prevent crimes; apprehend and neutralize criminals. The police are supposed to keep and make us feel safe in their presence, not sow terror on the citizenry by killing innocent civilians or disregarding the rule of law.

Obviously, we do not expect the same protection or safety from criminals, whether high on drugs or not. We know their object is to inflict harm and are up to no good. So, when these deranged beings go killing spree or commit heinous crimes, we as a society are shocked by the depravity of their crimes but we accept as a sad fact of life that there are such evil men ever lurking in society. And we look upon the authorities – the police – to protect us from these kinds of people.

But what do we do when the police themselves become the very evil against which we seek protection? When the police become the very evil that threaten our lives and limbs, we find ourselves in graver danger because unlike criminals the police freely roam our streets under the badge of authority. They can go about their nefarious ways, armed by the state, unhampered by anyone. Who will we call for help or protection when the very people who are supposed to provide it are the very cause of our distress?

But now that this matter has been brought to light, let us call for justice for every victim of crime, especially victims of heinous crimes. Let us demand from the government and the police to protect us against criminals; let us demand from government that those responsible be prosecuted.

If we cannot see these very clear distinctions, we are truly lost and are driven only by our political persuasions. Victims of common crimes deserve our utmost sympathy and the criminals our most vehement condemnation.  But when the police, whom we have armed and whose salaries we foot through the taxes we pay so that they can make our streets safe and protect us against bad elements of society, become the very threats to our safety and well-being, the line must be drawn and we must become vigilant and resist such evil if we are to survive.  And when there is no one to whom we can turn to for help, we have only ourselves to protect us. 

We still speak not with bated breath

Source: dailyopinioninternational.com

When the Supreme Court decided to uphold the anti-cybercrime law, netizens were fast to decry the decision as an erosion of our fundamental right to free speech and paving the way for online martial rule.  This issue assumes much relevance at a time when we celebrate the 28^th year anniversary of the EDSA People Power Revolution that toppled the Marcos dictatorship.

Those who lived through the Martial Law years know that they could only criticize Marcos and the government in hushed tones, lest they be the target of the dreaded ASSO (Arrest, Search and Seizure Order) by the state’s security forces.  This could mean being incarcerated without charges or worse, joining the ranks of the desaparecidos or those who disappeared and never to be heard from again.

The 1986 People Power revolution ended this garrison state and with it came the restoration of our cherished freedoms, particularly our freedom of speech and expression which is now enshrined in Article 3, Section 4 of the Constitution.  It prohibits Congress from making any law abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. 

The advent of modern technology even expanded the exercise of this freedom by providing us the medium of the cyberspace where we can vent our frustrations with the government and its officials or cast our criticisms and disgusts.  Imagine if tweeter or facebook were already existing during the time of Marcos. The authorities would probably be spending countless hours tracking emails, tweets and status updates adverse to Marcos and his cohorts.

One only needs to read the papers, listen to the radio, watch the TV, surf the internet, browse facebook or read tweets to see that our freedom of speech is still very much intact – and we no longer have to criticize the government in bated breath.  28 years later we can still speak freely against the government and our public officials without fear of punishment.

And what about the anti-cybercrime law that punishes online libel?  Did it not remove or downgrade our free speech right with the connivance of the Supreme Court?  There is so much misinformation circulating the web about this.  Freedom of speech is not absolute.  The state can legitimately prohibit speech that is libelous, obscene, incites lawlessness, or is in the nature of fighting words (those that by their very utterance inflict injury, incite lawlessness, hatred or violence).  These are unprotected speeches that the state may validly regulate.

Libel, which is the utterance of defamatory words that destroy or injure another’s character or reputation, has always been punished even before the enactment of the anti-cybercrime law.  What the anti-cybercrime law merely did is recognize the internet as a means by which libel may be committed or as a medium where defamatory words can be published.  If a statement is libelous when made on a newspaper, radio or television or when uttered orally, it does not become less libelous when made on the internet.

The anti-cybercrime law does not punish protected speech.  By importing the definition of libel under the Revised Penal Code, the jurisprudence outlining the acts punishable when the defamatory remarks are made against a private individual and when made against a public official or figure are also imported.  Thus, speech critical of a public official or figure, even if defamatory, remains protected if made without malice and, therefore, cannot be punished as libel.

Those who say that the anti-cybercrime law will stifle free speech are clearly making false and misleading statements.  The criticism of official conduct, condemnation of malfeasance in public office or denunciation of any wrongdoing by our public officials  remain part of our protected speech and nowhere under the anti-cybercrime law, or in the Supreme Court’s decision, has this been made a punishable act.   

The Magic that is Christmas

The Star of Bethlehem .

In a recent Pew Survey in the U.S., it found that only about half of those who celebrate Christmas see it as a religious celebration while the rest see it as a cultural non-religious event.  But whatever belief one has about Christmas, the fact of the matter is that Christmas is a celebration that is based and rooted on the birth of Jesus Christ; in fact, the name with which this globally celebrated event is known is derived from the name of Christ himself. 

Every time Christmas comes, I am in awe of the far-reaching influence and legacy that this humble carpenter from Nazareth has left in this world.  His ministry is brief (a little over three years) and confined in and around the area of his birthplace (biblical accounts show that he never traveled more than 200 miles from Bethlehem), and yet Jesus left an enduring and worldwide teaching of love, peace, generosity and humility that no being who has set foot on the face of the earth has ever done.  He is truly the savior of the world!

Commercialism aside, what with all the merchandise being pedaled to us by merchants, there is no other season of the year where gift-giving is so pervasive and the air is filled with the ambience of kindness and forgiveness.  It is this time of the year where people are more tolerant and forgiving, letting go of offenses against them with the usual remark, “forget about it, it’s Christmas anyway”;  it is this time of the year where goodwill among men pervades and you see people with happy countenance everywhere.

There is no other event where even fighting men dropped their rifles and muted their canons and crossed enemy lines to engage in Christmas greetings and songs and even exchanged gifts, as was done by German and British soldiers around Christmas time during World War I. 

Whether you are a believer or not, the song is right. Christmas is “the most wonderful time of the year.”

Merry Christmas to you all and let us keep the spirit of kindness and giving alive!    

 

 

The Thin-Skinned Brillantes

Comelec Chair Sixto Brillantes, Jr.

“The interest of society and the maintenance of good government demand a full discussion of public affairs . . . a public officer must not be too thin-skinned with reference to comment upon his official acts,” so goes Justice Malcolm in the landmark case of US v. Bustos, in his disquisition on freedom of speech.

But Comelec Chairman Sixto Brillantes, Jr., a former San Beda College of Law professor and practicing lawyer,  must have already forgotten this mandatory case law reading in law school when he threatened to sue critics of the just concluded midterm elections in the Philippines.  Reacting to allegations of massive glitches in the implementation of the 2013 computerized elections and criticisms that it was worse than the 2010 elections, Brillantes said “[t]hose people who keep on blabbering but know nothing, they are the ones I’m going to charge.  All of them.”     

While it is completely understandable that planning and handling the elections in 1,630 municipalities and cities around the country is a daunting task and must be draining, physically and mentally, Brillantes should not lose sight of the fact that he took the job of election chief voluntarily and as a public office, it is open to public criticisms, whether justified or not.

Threatening to sue critics – aside from being stupid, because criticism of official conduct, unless proven to be malicious, is not libelous – has a chilling effect on free speech, for it deters others from commenting on what they perceive to be inefficiencies in the government and calling on public officials for any wrongdoing.  In a democratic society like the Philippines, freedom to comment on the workings of the government and conduct of public officials is one of the strongest checks against the excesses, abuses, and other misconduct of officialdom. 

 

 

Duterte's Chilling Proposition

     

The offer of a five-million-peso reward money by Davao City Vice Mayor Rodrigo Duterte to anyone who can literally bring to his office the head of notorious carnapping (motor vehicle theft) suspect Ryan Yu – made on national TV, no less – sends a chill to the spine and speaks badly of the country’s state of law enforcement.

While this is nothing new for a man who has been dubbed by Time magazine as the “Punisher,” for his reputation for alleged extrajudicial killing of suspected criminals during his tenure as mayor of Davao City, Duterte’s offer sends the message that law enforcement in the Philippines is inept, hence the need for vigilantes to carry out the job that the police have failed to do.

Every law abiding citizen should come out and condemn this reprehensible incitement to lawlessness by no less than a public official. Duterte was actually telling the public to kill and mutilate by decapitation a man who has yet to be pronounced guilty by a court of law. Although Yu is the suspected – take note, “suspected” – mastermind of several cases of carnapping, he is no less entitled to his day in court and could only be meted with criminal punishment after he is found guilty of the crimes attributed to him. Also, Duterte was not only prescribing a penalty that has been abolished in the Philippines, but is prescribing a punishment so savage and shocking to our senses that it should have no place in civilized society.

Vigilantism, which is what Duterte was encouraging, degrades law enforcement and incites lawlessness.  While the reward system to capture suspected criminals is meant to help law enforcement, this is not exactly how it is supposed to work. For safety reasons and observance of the rule of law, private citizens should only be required to report to the authorities the whereabouts of suspected criminals and not put the law into their own hands by carrying out the arrest themselves, let alone kill the suspect!

Vice Mayor Duterte should be brought to task for his reckless and dangerous conduct. As a public official, he is duty-bound to observe his oath of fidelity to the Constitution and the rule of law. The Code of Conduct and Ethical Standards for Public Officials and Employees require him to refrain from doing any acts contrary to law and public order.