Dear friends,
We are sharing a copy of our position paper submitted today to the House of Representatives Committee on Justice during the hearing on House Bill No. 10986.
KARAPATAN Public Information Desk
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POSITION PAPER ON HOUSE BILL NO. 10986
(ANTI-EXTRAJUDICIAL KILLING ACT)
Submitted by Karapatan Alliance Philippines
11 December 2024
Committee on Justice of the House of Representatives
KARAPATAN, a national alliance of human rights organizations, desks and individual advocates submits this position paper on House Bill No. 10986 or the Anti-EJK Act, for consideration of the Committee on Justice of the House of Representatives. KARAPATAN acknowledges this bill seeking to classify extrajudicial killing as a heinous crime as an important step in recognizing the role and accountability of State forces in these killings in the Philippines.
I. Background:
Extrajudicial killings in the Philippines are carried out in the name of government-sponsored campaigns or operations. Since martial law, EJKs and its nominal permutations such as salvaging, summary executions, arbitrary killings, and massacres were conducted in the course of counter-insurgency operations using different nomenclatures. Activists, political dissenters and human rights workers are called members of groups accused of being communist “front organizations” or suspected of supporting the New People’s Army (NPAs). KARAPATAN observed that victims of EJKs are often surveilled, harassed or red-tagged before they were killed or assassinated.
In many of these cases, farmers and civilians in rural areas are being accused of engaging in “armed encounters,” and are portrayed as armed combatants, hence, the justification for their killing. KARAPATAN recorded the highest number of killings from the peasant sector.
In the past, KARAPATAN documented at least 1,206 cases of EJKs during the administration of then President Gloria Macapagal-Arroyo, in relation with the implementation of her counter-insurgency program called Oplan Bantay Laya 1 and 2. Former President Benigno Aquino III’s Oplan Bayanihan netted 333 documented victims of extrajudicial killings.
Similarly, during the administration of former President Rodrigo Roa Duterte, Karapatan documented a total of 422 EJKs of civilians in relation to its counter-insurgency operations. Meanwhile, around 30,000 deaths resulting from the drug war were also reported.
Under the current administration of President Ferdinand Marcos Jr., there are 119 cases of EJKs of civilians and human rights defenders, as of November 2024.
The brutality, pattern and modus operandi carried out in the killings of activists and ordinary citizens are strikingly similar.
First, the worn-out narrative of “nanlaban” is used by the operatives as an excuse to train their guns and kill the hapless victims. Second, the planting of evidence such as firearms, explosives, etc. beside the body of the victim or in the immediate premises, has been a commonly alleged practice of State forces, to support and corroborate the story of “nanlaban.” Lastly, the modus of disturbing the crime scene to destroy the integrity of the evidence is all too familiar.
Meanwhile, autopsy reports on the injuries sustained by the victims, suggest otherwise. Supported with testimonies of other witnesses, it can be established that in all or majority of the cases, there are no exchanges of gunfire. Hence, the cases are plain and simple killings.
Stark examples, aside from those documented in the drug war, are the Bloody Sunday killings in March 2021, when nine activists were killed in the course of a simultaneous police and military operations in Region IV-A; similar killings of nine Tumandok people, with ten others arrested, in December 2021; killings in the course of synchronized enhanced management of police operations (SEMPO) in Negros; among others.
It is very rare that police or military personnel or official are indicted in court on these killings. In cases of EJKs in the drug war, only low ranking policemen were charged and convicted as in the case of the killing of Kian Delos Santos. Impunity, thus, reigns.
These killings also affected many families and scores of communities. Aside from the trauma and other impacts on the psychosocial wellbeing of the families and communities, they continue to experience threats, harassment and other forms of reprisals, especially when they file complaints or cases. Widowed spouses and orphaned children are left without any support or compensation from the government.
II. Relevant laws and treaties under domestic and international laws
The Philippines ratified the Geneva Conventions in 1952 which provides for the treatment of civilians in times of war. Similarly, the Philippines ratified the Optional Protocol 1 and 2 of the International Covenant on Civil and Political Rights (ICCPR). The first optional protocol allows victims and individuals to file complaints with the Human Rights Committee. The second optional protocol abolishes death penalty for state parties.
For domestic laws, the Philippines enacted Republic Act 9851 or an Act Defining and Penalizing Crimes Against International Humanitarian Law, Genocide and other Crimes Against Humanity which defines and penalizes the most serious crimes of concern in the international community such as war crimes, genocide and crimes against humanity. Meanwhile, the Comprehensive Agreement on the Respect for Human Rights and International Humanitarian Law (CARHRIHL) is a landmark substantive agreement between the Government of the Republic of the Philippines (GRP) and the National Democratic Front of the Philippines (NDFP) as a result of the peace negotiations. The CARHRIHL recognizes respect for human rights and international humanitarian law during armed conflict.
Hence, with the various domestic and international laws we have in relation to the rights of the civilians and combatants, we believe that it is important to consider and incorporate the following amendments to the Anti-EJK bill:
A. Adopt the existing definition of “Extrajudicial Killings” under Republic Act No. 11188 also known as The Special Protection of Children in Situations of Armed Conflict, which states:
“Section 5 (l) Extrajudicial killings refer to all acts and omissions of State actors that constitute violation of the general recognition of the right to life embodied in the Universal Declaration of Human Rights, the United Nations Covenant on Civil and Political Rights, the UNCRC and similar other human rights treaties to which the Philippines is a State party;” (Emphasis Supplied)
B. The burden of proof must be on the law enforcement, persons in authority and their agents and require extraordinary diligence in the discharge of duties.
To ensure that the “nanlaban” narrative will not be made as a convenient excuse to commit the killings, death as a result of any military or police operations should not enjoy the “presumption of regularity.” Instead, highest standards of accountability must be observed.
KARAPATAN proposes that Section 3 (b) and Section (9) of the bill on “administrative negligence” must be replaced by a provision requiring all officers including the agents of persons in authority, to exercise extraordinary diligence in the performance of their duties.
Such requirement is also present and consistent with the Rule on the Writ of Amparo, which states:
“The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. (Emphasis supplied)
C. Adopt the doctrine of command Responsibility as defined in the decision of the Supreme Court in the Petition for Writ of Amparo and Habeas Data in the case of Noriel Rodriguez:
“command responsibility pertains to the ‘responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict”
D. Incorporate the provision on liability of commanding officer or superior as already mentioned in Republic Act 10353 or the Act Defining and Penalizing Enforced or Involuntary Disappearance, and Republic Act 9851 or the Act Defining and Penalizing Crimes Against International Humanitarian Law, Genocide and other Crimes Against Humanity, which states:
“SEC. 14. Liability of Commanding Officer or Superior. – The immediate commanding officer of the unit concerned of the AFP or the immediate senior official of the PNP and other law enforcement agencies shall be held liable as a principal to the crime of enforced or involuntary disappearance for acts committed by him or her that shall have led, assisted, abetted or allowed, whether directly or indirectly, the commission thereof by his or her subordinates. If such commanding officer has knowledge of or, owing to the circumstances at the time, should have known that an enforced or involuntary disappearance is being committed, or has been committed by subordinates or by others within the officer’s area of responsibility and, despite such knowledge, did not take preventive or coercive action either before, during or immediately after its commission, when he or she has the authority to prevent or investigate allegations of enforced or involuntary disappearance but failed to prevent or investigate such allegations, whether deliberately or due to negligence, shall also be held liable as principal.
SEC. 10. Responsibility of Superiors. – In addition to other grounds of criminal responsibility for crimes defined and penalized under this Act, a superior shall be criminally responsible as a principal for such crimes committed by subordinates under his/her effective command and control, or effective authority and control as the case may be, as a result of his/her failure to properly exercise control over such subordinates, where:
(a) That superior either knew or, owing to the circumstances at the time, should have known that the subordinates were committing or about to commit such crimes;
(b) That superior failed to take all necessary and reasonable measures within his/her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
Such adoption of a similar provision in this bill is important to not exonerate higher officials from culpability for failure to prevent extrajudicial killings despite his/her knowledge of the operations.
E. Remove the provision in SEC. 9 on Presumption of Administrative negligence which states:
“Except in areas declared by the proper government authority as areas of conflict or combat zones,” any public officer in charge of public order and safety and the local chief executive are presumed administratively negligent if there is an increase in the number of extrajudicial killings in their area of responsibility, as determined by the CHR, despite the continuous allocation and disbursement of peace and order, intelligence funds or other similar allocations to such public officer. Public officers in charge of investigating or prosecuting cases who fail to prevent, investigate, or file necessary actions in court against those suspected of having committed an EJK shall be administratively liable under applicable laws.” (Emphasis supplied)
KARAPATAN notes that there is increased military deployment in areas which the government believed to be strongholds of the NPAs, which are also considered areas of conflict or combat zones. In these remote areas, most of the killings and other human rights violations happen, especially among civilians. The exclusionary clause “except in areas declared by the proper government authority as areas of conflict or combat zones” will only render this law futile as the government can easily claim that the area where the EJK happened is an area of conflict or combat zone. As mentioned most of the killings are committed against the peasant sector in the rural areas.
Therefore, to protect the civilians, we opine that it is important to include Republic Act 9851 suppletorily to address deaths resulting from armed encounters.