Is EJK OK?

Two basic elements define extrajudicial killing (EJK), as it is globally understood: 1) the killers are agents of the state or acting for them; and 2) the killing takes place without benefit of judicial proceedings.

The Philippine National Police and the Department of Justice insist that no EJK has happened during the Duterte administration, citing Administrative Order No. 35, issued when EJK apparently targeted specific groups of victims: political dissidents, cause-oriented activists, investigative journalists. Even by AO 35 criteria, the killing of Zenaida Luz, Oriental Mindoro anticrime crusader, must qualify as EJK. Nevertheless, her killers, Sr. Insp. Magdalino Pimentel Jr. and Insp. Markson Almeranez, allowed to post bail, are now back on the PNP payroll.

But AO 35 was meant to focus government efforts on stopping crimes against the most prominent EJK targets then, not to exclude other classes of victims. To argue that Kian delos Santos was not an EJK victim because he was not an activist, journalist, or dissident, insults the common sense of the public. Even if Kian were only a drug pusher, his execution, while on his knees begging for mercy, was not justified, as even President Duterte has conceded.

Denying the reality of EJK simplifies matters for the PNP. To acknowledge even one case of unlawful EJK opens up the possibility of similar cases in its inventory of “deaths under investigation.” But the blanket denial of EJK undermines government credibility and is self-defeating, since not all EJKs are illegal.

Without capital punishment, there is no judicially sanctioned killing. By definition, all killings done by state agents are extrajudicial, but not all such killings are unlawful. Self-defense against clear and mortal danger justifies killings committed by law enforcement agents while performing their duties. But the claim requires proof. Hence, law enforcement agencies themselves must investigate all EJK cases to determine that these were not summary executions that violated constitutional and human rights.

The “presumption of regularity,” when deaths result from legitimate police operations, provides a necessary but not sufficient condition to excuse the killings; these must still undergo investigation. Despite patient coaching by Sen. Panfilo Lacson in the Senate hearings, PNP chief Ronald dela Rosa refused to accept this point.

When law enforcement agencies prove unwilling or unable to complete credible investigations, the Commission on Human Rights must intervene. The CHR has neither the resources nor the mandate to investigate all cases of violence inflicted on the public. This is the task of law enforcement agencies and the CHR must focus on their performance.

CHR oversight is important to ensure public trust in the institutions given the resources and the license to apply lethal force against citizens. The government needs police and military forces to protect the public. But the key question, especially in democratic states, remains: Who will guard the guards?

Recent surveys on EJK are troubling because they deliver an ambiguous message. Seventy-three percent of respondents believe that unlawful EJK is taking place, doubting claims that police were compelled to kill suspects in self-defense. Sixty-five percent reject the notion of a cash bounty for drug war kills. Ninety-five percent believe that drug suspects should be apprehended alive. But 88 percent support the Duterte war on drugs. This support and the President’s good approval and trust ratings lead his spokesperson Harry Roque to speculate that people are OK with the killings.

Do Filipinos really believe there is nothing wrong with summary executions? The question must be asked, though we may not like what the responses might reveal about the depth of people’s faith values, the formation of their conscience, and their regard for the moral order and the rule of law.

The question must also be carefully formulated and explained.

Respondents must understand that the question critically measures their confidence in the police forces. To tolerate summary executions means to entrust to police officers the authority to decide whom to spare and whom to kill.

President Duterte has effectively delivered this power to the police, despite his suspicion that 40 percent of the force are complicit in corruption. Is this responsibility a burden police officers want to embrace? Is this is a right that the public is prepared to yield to them?

Edilberto C. de Jesus (edcdejesus@ gmail.com) is professor emeritus at the Asian Institute of Management.