Lost in translation

As the incidence of extrajudicial killings (EJKs) in the country escalates, so has the public ire drawn by the Duterte administration’s bloody campaign against drugs. Interestingly, Filipino lawmakers have proved their ingenuity in addressing the problem. Two of their proposed measures are noteworthy.

The first came from Deputy Speaker Gwendolyn Garcia. Arguing before the House committee on public order and safety that “EJK” is actually a misnomer considering the absence of capital punishment in the country, she moved that the term be dropped. She said: “I am really curious what the definition of ‘extrajudicial killing’ is because ‘extrajudicial’ would mean outside of the parameters of a judicial killing. But do we have such a thing as judicial killing in the Philippines?” Voting affirmatively on her motion, members of the House committee agreed to use the phrase “death under investigation” instead.

The second came from the proponents of the death penalty bill seeking to reinstate capital punishment in the country. As Oriental Mindoro Rep. Reynaldo Umali bluntly put it, “Do we not see the reality that compels us to address the challenge ahead of us? Take your pick—death without due process, or death after due process?”

Based on these developments, the lawmakers are apparently under the impression that the growing public outcry against EJKs stems from the absence of a law legitimizing the killings. Never mind that the House committee could have adopted the broader phrase “extralegal killings,” as referred to in the Rule on the Writ of Amparo, if their only concern was a matter of semantics. Never mind that what makes EJKs repugnant is not their being extrajudicial, but the killings per se.

Further, international law bars the Philippines from reinstating the death penalty. As pointed out by Sen. Franklin Drilon during the Senate hearing on Feb. 7, the Philippines ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) in 2007. Under Article 1 of the treaty, “no one within the jurisdiction of a State Party… shall be executed.” Article 6(2) expressly makes this duty “non-derogable”—that is, the duty admits of no exception.

In fact, even without the treaty, the abolition of the death penalty is a norm of customary, if not peremptory, character. By way of background, international law is highly normative. Much depends on the behavior of states, such as their domestic legislation, the treaties they ratify, and the United Nations General Assembly resolutions they sign.

To illustrate, if a significant number of states prohibit an act and the international community of nations shares the same psychological belief about its illegality, then the prohibition ripens into a “customary norm.” This in turn binds all states without need of a treaty.

The same goes for the abolition of the death penalty. According to Amnesty International, in 2015, 140 states, or more than two-thirds of the international community, stopped imposing capital punishment.

Multilateral treaties, such as the Second Optional Protocol to the ICCPR, the Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, provide for the same prohibition. Similarly, resolutions issued by the UN General Assembly, the UN Commission on Human Rights and the Parliamentary Assembly of the Council of Europe affirm the resolve of states to end the practice for being “inhuman” and a violation of the right to life.
Notably, not even the Rome Statute of the International Criminal Court or the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda impose capital punishment. What crimes then, more heinous than genocide, war crimes and crimes against humanity, do Philippine lawmakers contemplate enough to warrant the forfeiture of the right to live?

The death penalty is simply the license to kill, nothing more. By reimposing it, the Duterte administration would officially sanction what it has been persistently denying—that the EJKs in the country are state-sponsored.

Neil B. Nucup is a private lawyer-turned-civil servant.