VERA FILES FACT CHECK: Was the definition of EJKs changed under the Duterte administration?


Then Senator Alan Peter Cayetano led the 16-man delegation team from the Philippines in presenting the human rights situation in the country during the Universal Periodic Review in Geneva, Switzerland on May 8.

(UPDATED) Recently appointed foreign affairs chief Alan Peter Cayetano slammed the double standard used by critics of the Duterte administration to define extrajudicial killings (EJKs).

Representing the Philippines in the third cycle of the United Nations Universal Periodic Review (UPR) in Geneva on May 8, Cayetano argued during the Aquino administration, EJKs were limited to media and political killings, resulting in a very low body count.

But now, he says killings in the war on drugs comprise the bulk of what the media and Duterte’s critics call EJKs, to “deceive” the rest of the world there is a surge in state-sponsored killings.

STATEMENT

"Because some of the critics of the Duterte Administration, including our very own Commission on Human Rights, a senator and some local media changed the definition of extrajudicial killings therefore Administrative Order (A.O.) 35 signed by then President Benigno Aquino III defined EJKs as the killing of the members or advocates of cause-oriented organizations like labor, environment or media activists resulting in very low number of supposed EJKs in the past administration. However, for the current administration, a different definition is being used. EJK now refers to any death outside of those caused by natural causes, accidents or those ordered by the courts. Make no mistake, any death or killing is one too much. However, there is a deliberate attempt to include all homicides as EJKs or killings related to the campaign against criminality and illegal drugs, and that these are state-sponsored, which is simply not true."

(Source: Opening Statement, Philippines Review - 27th Session of Universal Periodic Review, Palais des Nations, Geneva, May 8, 2017, watch from 18:04 to 21:31)

FACT

Did Cayetano have basis in saying the definition of EJKs was changed under the current administration?

First, there is no law yet defining EJKs in the country, although there is jurisprudence outlining what these are.

Second, in the absence of such a law, only definitions and principles under international conventions, human rights manuals are used.

Third, these definitions have been cited long before Benigno Simeon Aquino III became president.

How do we define EJKs?

While there is no law defining EJKs, the Supreme Court in 2007 issued the rule on the Writ of Amparo, a remedy to safeguard the right of the people to life, liberty and security.

The High Court defined extra-legal killings (ELKs), which is the internationally accepted term for extrajudicial killings, to include the killing of suspected criminals without due process.

It wrote:

“As such, these will include the illegal taking of life regardless of the motive, summary and arbitrary executions, ‘salvagings’ even of suspected criminals, and threats to take the life of persons who are openly critical of erring government officials and the like.”

(Source: Official Annotations to the Rule on the Privilege of the Writ of Amparo)

The Philippines and member-states are also guided by the UN’s International Covenant for Civil and Political Rights (ICCPR), ratified by the Philippines in 1986.

The ICCPR states, “No one shall be arbitrarily deprived of his life.”

What definitions are available?

1. In the Philippines, Administrative Order No. 35 provides a definition of extra-legal killings.

However, it is an operational definition outlined strictly for the purposes of the A.O and is therefore not a comprehensive one. It is also just an administrative order and not a law.

The definition in the operational guidelines of A.O. 35 limits extra-legal killings to killings of a political and cause-oriented nature.

Signed in 2012 by then President Aquino, the A.O. intended to create an inter-agency committee (IAC) to expedite the resolution of certain human rights violations, extra-legal killings included.

It was a response to unresolved human rights violations in the country at the time.

A.O. 35 restricted “extra-legal killings” to killings where the victim was either:

  • A member of, or affiliated with an organization, to include political, environmental, agrarian, labor, or similar causes
  • An advocate of above-named causes
  • A media practitioner
  • Person/s apparently mistaken or identified to be so.

It also counts as extra-legal killing when the victim was targeted and killed because of his or her actual or perceived membership, advocacy or profession, and those responsible for the killing is a state or non-state agent whose method of the attack reveal a deliberate intent to kill.

The Center for International Law (Centerlaw) said: “For some reason, these killings had come to be known as EJK, when the title of the AO 35 itself explicitly referred to Extra-Legal Killings.”

In an earlier interview with VERA Files, lawyer Jose Manuel Diokno of the De La Salle University further pointed out that A.O. 35 is not a law.

“They really took A.O. 35 out of context. The purpose of AO 35 is it is a document (that outlines) the mandate of the inter-agency committee,” Diokno told VERA Files.

“So when they defined EJK, in a very limited way, that was because their mandate was only for those who were killed because they were journalists or because of political leaning,” he added.

CHR Chairperson Jose Luis Martin Gascon also said A.O. 35 is but a specialized intervention to fast-track the prosecution of politically driven killings because it appeared at the time, there was lack of political will to pursue them.

Those being killed under the new administration are drug users and pushers, most of them poor. As of May 9, a total of 2,949 suspected drug personalities have been killed in the war on drugs endorsed by President Rodrigo Duterte, according to the Philippine National Police.

“Those killed in the anti-drug war weren’t activists, but they, too, are marked as enemies that should be eliminated,” Gascon told VERA Files in an earlier interview.

Not only killings beyond the rule of law comprise EJKs, Gascon said. When the state is either “unable, unwilling or refuses to investigate and prosecute” crimes, regardless of their nature, it also counts as EJK.

2. The Philippines is also guided by the Minnesota Protocol, or the United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary, and Summary Executions, formally adopted by the UN in 1991. The Centerlaw said this has been used in many investigations of human rights violations around the world.

The Minnesota Protocol, it added, prescribes a set of investigative procedures to be followed by government whenever law enforcement or persons are suspected to be behind unlawful deaths.

According to the Centerlaw, the Minnesota Protocol covers deaths resulting from police operations, where these deaths happened under conditions of excessive use of force. It also includes summary executions or executions without due process, whether or not the perpetrators were state agents or actors acting on orders from the former.

3. Another definition states:

"'Extra legal execution’ refers to killings committed outside the judicial or legal process, and at the same time, illegal under relevant national and international laws.

Accordingly, in certain circumstances ‘arbitrary execution’ can be an ‘extra legal execution.’

'Arbitrary execution' is the arbitrary deprivation of life as a result of the killing of persons carried out by the order of a government or with its complicity or tolerance or acquiescence without any judicial or legal process.
"

These are defined by the UN Special Rapporteur on summary and arbitrary executions, during the United Nations Economic and Social Council's Commission on Human Rights 39th session in 1983, in response to the “alarming incidence” of summary executions arbitrary executions in different parts of the world.

(This post was updated on May 23, 2017 to include a reader’s contribution about the SC annotation and Minnesota Protocol.)

Sources:

Administrative Order No. 35, s. 2012

Inter-Agency Committee (IAC) on Extra-Legal Killings, Enforced Disappearance Meet to Adopt Guidelines on Investigation and Prosecution

Official Annotations to the Rule on the Privilege of the Writ of Amparo (Download here.)

UN Office of the High Commissioner for Human Rights: Professional Training Series No. 5/Add. 2, Human Rights and Law Enforcement: A Trainer’s Guide on Human Rights for the Police

1983 Report by the UN Special Rapporteur on summary or arbitrary executions

1991 Minnesota Protocol, or the United Nations Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions

FOR FURTHER READING

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