Benigno Aquino III, the former president, was wrong to say last month that the killings that have characterized the Duterte administration’s campaign against illegal drugs could not be called extrajudicial. His reasoning is pedantic. “If you say there is extrajudicial killing, then it means there is judicial killing. But I remember, we do not have the death penalty, so there is no judicial killing. Therefore, there is no extrajudicial killing. No judicial, no extrajudicial,” he said in Filipino.
He was not ignoring the bloodbath that is drowning the country; he was merely trying to be precise about terms. But I’m afraid his understanding of judicial killing is too narrow. The “judicial” in extrajudicial does not refer to capital punishment alone, but to the legal exercise of the violence that, in modern societies, is supposed to reside with the state alone.
The troops fighting the Maute Group in Marawi, the police units involved in the raid on Mamasapano, the National Bureau of Investigation agents pursuing kidnap-for-ransom gangs — they and others like them had or have the legal sanction to kill, if necessary. (The more accurate term then is “extralegal.”)
On the other hand, when then Chief Justice Reynato Puno created special courts in 2007 to handle extrajudicial killings, the administrative order he issued may have defined EJKs too broadly. The order proposed three elements of a definition: the political affiliation of the victim, the method of attack, and the involvement of state agents in the crime.
I was among the many who welcomed the initiative. At that time, many of the EJKs were politically motivated. Militant leftists were being killed. Lawyer Al Parreño’s “Report on the Philippine Extrajudicial Killings (2001-August 2010)” noted that “thirty-two percent (32 percent) out of the total three hundred ninety (390) victims of extrajudicial killings are officers or members of activist groups such as Bayan Muna and Anakpawis.”
In retrospect, it is easy to see why political affiliation was considered a key factor in determining whether a homicide or a murder was also an extrajudicial killing.
Between Aquino’s definition and Puno’s, we can perhaps find a more realistic definition of an EJK. It is, simply, an unlawful killing using the state’s means of violence. The thousands of “deaths under investigation” (or DUI) are extrajudicial killings if they are proven to have been instigated or assisted by the police (or by other government agencies). The thousands of people killed in police operations (or KIPO) are victims of extrajudicial killings if the police violated mission orders or the rules of engagement.
In this framework, the deaths of Albuera Mayor Rolando Espinosa and his cell mate Raul Yap must be considered extrajudicial because, as both the NBI and the Senate concluded, too many rules were violated: the securing of warrants under false pretenses, the disabling of closed-circuit television cameras, the disarming of jail guards, and so on. The raid was an execution.
The template for this kind of unsanctioned state execution was first set in 1968, when Ferdinand Marcos ordered the infamous Jabidah Massacre. Marites Vitug and Glenda Gloria quote the lone survivor:
“[Jibin] Arula’s memory … remains vivid: ‘We went to the airport on a weapons carrier truck, accompanied by 13 [non-Muslim] trainees armed with M-16 and carbines. When we reached the airport, our escorts alighted ahead of us. Then Lt. Eduardo Nepomuceno ordered us to get down from the truck and line up (Nepomuceno was later killed in Corregidor under mysterious circumstances). As we put down our bags, I heard a series of shots. Like dominoes, my colleagues fell. I got scared. I ran and was shot at, in my left thigh. I didn’t know that I was running towards a mountain …”
This pre-martial-law template was put to heavy use after military rule was imposed. How many people were extrajudicially killed by the Marcos regime? The now widely accepted answer is 3,257. (Read scholar Rachel A. G. Reyes’ retracing of historian Alfred McCoy’s calculations.)
Compared to the number of EJKs in the so-called war on drugs, that total now seems small, but it is proof that Marcos pioneered and perfected the murderous art. He was the true father of EJKs.
On Twitter: @jnery_newsstand