2011-027156 Human Rights Law – Atty.

Lope Feble
2A Dec. 15, 2016

EXTRALEGAL KILLINGS AS STATE-INDUCED FEAR TO

ENFORCE CLASS DIVISION

On the sixth month following the campaign promise to remove

all criminality, crime is not eradicated. There is only silence–on the

spot where the latest fatality was shot in the head early in the

morning, on the glum eyes peeping from behind rundown makeshift

houses, at the funeral where the relatives are quietly wailing. The

television is blaring in the living room. But all sounds came off after

the noise of a bullet grazed through the last victim’s forehead and out

through the back of his brain.

The bigger fish, the puppeteers, are smiling behind closed

doors, listening to the silence they created.

President Rodrigo Duterte, the tough-talking no-nonsense

former mayor of Davao for 20 years, has gained popularity in his

presidential campaign through his proposal to shift the Philippines

into a federal country, his supposedly “leftist” stance, his toxic but

validated machismo, his “for the masses” approach, and his

unorthodox, anti-establishment image–but all paled in comparison to

the iron fist he had been bragging to brandish throughout the country

to smite down the drug users and pushers that corrupt the

Philippines–a measure he vowed would eradicate crime in the now

extended period of six months from his assumption to office. “My

God, I hate drugs,” he said during his speech in The Leader I Want
Forum at the De La Salle University. “And I had to kill people

because I hate drugs.”1

Duterte’s hatred of drugs materialized into the nationwide

Oplan Tokhang that first took operation in Davao2, now claimed by

its inhabitants and Duterte supporters to be the 4th safest city in the

world because of it. The portmanteau Cebuano word literally means

to “knock on the door and persuade” alleged drug users and pushers

to surrender to the police. According to the Philippine National

Police 3 in July, the program yielded the surrender of more than

60,000 drug dependents in just two weeks. But drug dependents are

not as equally lucky. While in some communities, those who

surrendered are provided rehabilitation programs by their respective

local government units, others are still relentlessly targeted without

due process–in September, the number of drug-related killings

soared to 3,860.4

The staggering and consistent rise of the numbers left the

Commission on Human Rights and the international community

worried. In October, the United Nations Committee on Economic,

Social, and Cultural Rights released its recommendations 5 to the

Philippines after its periodic review of the country, pursuant to the

International Convention on Economic, Social, and Cultural Rights

(ICESCR), to which the country is a signatory.

The report, which covered the three administrations since

Gloria Macapagal-Arroyo up to the present, stated: "The Committee

1 WATCH: Rodrigo Duterte's speech at the #TheLeaderIWant Forum

https://www.youtube.com/watch?v=6ECj5PNndFk
2 PNP Oplan – Double Barrel Project Tokhang http://www.calambamisocc.gov.ph/index.php/60-capital-

outlay/411-pnp-oplan-tokhang
3 In 2 weeks: 135 killed, 66K ‘surrendered,’ 43K homes ‘visited’ http://newsinfo.inquirer.net/795995/in-2-

weeks-135-killed-66k-surrendered-43k-homes-visited
4 UN Committee to Philippines: Stop extrajudicial killings. http://www.rappler.com/nation/148988-un-

committee-extrajudicial-killings-philippines
5 UN Committee probes state of human rights in PH. http://cnnphilippines.com/news/2016/09/29/un-

committee-probes-state-of-human-rights-in-philippines.html
urges the State to stop and prevent extrajudicial killings and any

form of violence against drug users; to promptly and thoroughly

investigate all reported cases and punish the perpetrators with

sanctions commensurate with the gravity of the crime; and to take all

necessary measures to ensure that the fight against drug trafficking

does not have a discriminatory impact on the poor and

marginalized."6

Even the Office of the Prosecutor of the International Criminal

Court (ICC), where the Republic of the Philippines is a state party,

sternly reminded in a statement that anyone in the country who

“incites or engages in acts of mass violence including by ordering,

requesting, encouraging or contributing, in any other manner, to the

commission of crimes within the jurisdiction of the ICC is potentially

liable to prosecution before the Court.” 7 The ICC–which has

jurisdiction over genocide, crimes against humanity, and war crimes–

may have authority over extra-judicial killings committed as part of a

widespread or systematic attack against a civilian population

pursuant to a State policy to commit such an attack.

Despite this, the general public–or perhaps only some of

Duterte’s disillusioned, if not completely blind, supporters–advocates

the incessant killings, often preferring to do away with due process

and “democracy” so that “discipline” can be restored. Most of

Duterte’s rabid followers (paid “trolls,” more often than not 8 ) on

social media celebrate the merciless death of complete strangers

because he or she is an alleged drug addict or user–better that they be

killed than they be the ones to kill innocent lives during their drug-

6 UN Committee to Philippines: Stop extrajudicial killings. http://www.rappler.com/nation/148988-un-

committee-extrajudicial-killings-philippines
7 Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda concerning the situation in

the Republic of the Philippines. https://www.icc-cpi.int/Pages/item.aspx?name=161013-otp-stat-php

8 Money and credulity drive Duterte’s ‘keyboard army’. http://www.businessmirror.com.ph/money-and-

credulity-drive-dutertes-keyboard-army/
induced deliriums. Yes, apparently, the streets are safer where

anyone can be a target of an anonymous bullet.

Trigger-happy impunity

Television and newspapers are bombarded with the same news

everyday, only with different names of victims and locations, of

suspected drug users or pushers shot to death by policemen in a buy-

bust operation where the victim allegedly engaged himself in gunfire

with the authorities, or as often depicted in Filipino, “nanlaban.”

Perhaps the most high-profile case that even reached the Senate

for an investigation in aid of legislation is the killing of Albuera,

Leyte Mayor Rolando Espinosa9, shot four times by members of the

Criminal Investigation and Detection Group (CIDG) Region 8 after

serving Espinosa a search warrant for drugs and firearms in his own

jail cell. His fellow inmate Raul Yap was also killed in the process.

Espinosa was one of the “narco-politicians” which Duterte

publicly named. He surrendered to authorities in August for fear of

his life, promising to testify everything he knows about the illegal

drug trade among politicians.

The National Bureau of Investigation (NBI) found in December

that Espinosa was murdered in a rubout, contrary to claims that there

was a shootout. The findings emphasized the criminal intent of CIDG

in visiting Espinosa solely for the purpose of killing him. 10 The

members thereof are now facing murder and perjury charges filed by

the NBI.

9 Albuera Mayor Espinosa shot dead inside jail cell. http://news.abs-cbn.com/news/11/04/16/albuera-mayor-

espinosa-shot-dead-inside-jail-cell
10 NBI: Espinosa killing a rubout. http://cnnphilippines.com/news/2016/12/06/nbi-albuera-mayor-espinosa-

killing-rubout.html
 Duterte, in August, gave a shoot-to-kill order to policemen in

pursuit of illegal drug users or pushers. “For as long as it is done in

the performance of the duty by the police and soldiers, akin ‘yan (that

is my responsibility), that is my official and personal guarantee,” he

said. “Basta may police diyan na nag engkwentro, huwag na ninyo

imbestigahan ‘yan, order ko ‘yan.”11

Duterte, who is proud of being a lawyer and following the law

only when it is convenient for him, deliberately and expressly

allowed authorities to disregard due process with the assurance that

he will shoulder the responsibility. The lawyer-president himself

forgot about Sec. 1 Art. III of the 1987 Constitution, that “No person

shall be deprived of life, liberty, or property without due process of

law, nor shall any person be denied the equal protection of the laws.”

Justice Peralta said in Yapyuco v. Sandiganbayan that “A shoot

first, think later disposition occupies no decent place in a civilized

society. Never has homicide or murder been a function of law

enforcement. The public peace is never predicated on the cost of

human life.”12 A policeman in the performance of duty is justified in

using such force as is reasonably necessary to secure and detain the

offender, overcome his resistance, prevent his escape, recapture him

if he escapes, and protect himself from bodily harm.13 A policeman is

only allowed to use force when he is attacked or is the subject of

resistance, and finds no other means to comply with his duty or cause

himself to be respected and obeyed by the offender.14 In case injury or

death results from the policeman’s exercise of such force, the

11 Duterte, Palace defend shoot-to-kill order. http://newsinfo.inquirer.net/803274/duterte-palace-defend-

shoot-to-kill-order
12 Yapyuco v. Sandiganbayan G.R. Nos. 120744-46
13 People v. Oanis G.R. L-47722, Cabanlig v. Sandiganbayan G.R. No. 148431, Yapyuco v. Sandiganbayan G.R. Nos.

120744-46
14 US v. Campo 10 Phil. 97, 99-100
policeman could be justified in inflicting the injury or causing the

death of the offender if the policeman had used necessary force.15

The following was quoted in the Yapyuco decision:

The right to kill an offender is not absolute, and may be used only as a

last resort, and under circumstances indicating that the offender cannot

otherwise be taken without bloodshed. The law does not clothe police officers

with authority to arbitrarily judge the necessity to kill. It may be true that

police officers sometimes find themselves in a dilemma when pressured by a

situation where an immediate and decisive, but legal, action is needed. However,

it must be stressed that the judgment and discretion of police officers in the

performance of their duties must be exercised neither capriciously nor

oppressively, but within reasonable limits. In the absence of a clear and legal

provision to the contrary, they must act in conformity with the dictates of a

sound discretion, and within the spirit and purpose of the law. We cannot

countenance trigger-happy law enforcement officers who indiscriminately

employ force and violence upon the persons they are apprehending. They must

always bear in mind that although they are dealing with criminal elements

against whom society must be protected, these criminals are also human

beings with human rights.16 (Emphasis mine)

Notwithstanding this lawful pronouncement by the Supreme

Court, police officers have taken to heart Duterte’s order as the power

that would make their jobs easier and a tool to take the law into their

hands. Police could easily use “nanlaban” as the magic word to justify

their killings, and no one would bat an eye. Thus, all victims have

remained to be accused, and not even convicts. The very example is

the unfortunate fate of Mayor Rolando Espinosa.

The police have often washed their hands by saying that most

of the killings under Duterte’s regime were committed by vigilante

killings and not under police operations. But this fact is actually the

most alarming. Duterte has enabled not only the police but also

15 US v. Mojica 42 Phil. 784, 787

16 People v. Ulep G.R. No. 132547
civilians in circumventing the justice system with the use of a gun, a

cardboard, and a pen.

What the people do not realize is that this supposed drug war

could as easily be used to be the cause of any killing, whatever the

motive, and it would seem the element that the victim was a drug

user or a pusher justifies a gruesome murder.

‘Class justice’

With the use of government power and police authority,

Duterte is oppressing the very people he pledged to champion

during his presidential campaign.

The killings in the news are mostly located in shantytowns,

among the poorest of the poor. Oplan Tokhang, in practice, has

primarily targeted the masses, almost as if denying them of the equal

protection of the law, even if not on paper. People from the lower

class in the slums are met with bullets while the rich behind the

protective walls of their exclusive subdivisions get a knock on their

doors with flyers handed to their maids, informing them of the anti-

illegal drugs campaign,17 quite different from the shoot-to-kill policy

the authorities employ in the ghetto. Due process, it would seem, is

only afforded to those who, well, can afford it.

The anti-drug campaign, with its good intentions but

questionable execution, has also narrowed the drugs issue without

considering its socio-economic implications. The Duterte

administration seems to have overlooked the fact that crime is closely

intertwined with immense poverty, lack of basic education, and

almost no employment opportunities. That would, of course, be the

17PNP conducts ‘reinvigorated’ Oplan Tokhang in Forbes Park, Magallanes.

http://www.rappler.com/nation/145250-pnp-reinvigorated-oplan-tokhang-forbes-park-magallanes
tendency for an anti-poor campaign where crime is immediately

associated with the poor without asking why they were poor in the

first place. Thus, while the rich get flyers and daily reminders, the

less fortunate in life are gunned down almost immediately to erase

not the poverty, but the people in poverty, which in turn is expected to

erase the drug-related crimes.

In fact, Oplan Tokhang has already been used to file false

charges against activists and peasant leaders. In Bulacan, six farmer-

activists were arrested for supposedly violating the Comprehensive

Dangerous Drugs Act of 2002.18 They were arrested despite finding

no sign of drugs or firearms in their home, but only a flag of the

Kilusang Magbubukid ng Pilipinas. It had also been used as a tool to

hunt suspected members of the New People’s Army.19 And much like

the way Tokhang is conducted in the cities, the police threaten the

communities using their bent appreciation of the law.

In his paper in the Philippine Law Journal, Pangilinan cited the

case of Velasquez Rodriguez v. Honduras as the landmark case that said

States are obligated to investigate and bring to justice those

responsible for human rights violations. 20 The case also had an

important pronouncement that enforced disappearances affect both

the individual and the community at large, which led to the

acknowledgement by subsequent decisions that extrajudicial killings,

at par with enforced disappearances, are crimes committed by the

State with the same characteristics. He said:

18 Duterte urged to free 4 Bulacan farmers nabbed in the guise of anti-drug war.
http://bulatlat.com/main/2016/10/26/duterte-urged-free-4-bulacan-farmers-nabbed-guise-anti-drug-war/
19 Militants: Police, military using ‘tokhang’ to go after activists. http://newsinfo.inquirer.net/850151/militants-

police-military-using-tokhang-to-go-after-activists
20 Christian D. Pangilinan, The Dispute Over Extrajudicial Killings: The Need to Define Extrajudicial Killings as

State-Sponsored Acts, 86 PHIL. L.J. 811, (page cited) (2012).

 Disappearances, explained the Court, were now being used systematically

‘not only for causing certain individuals to disappear, either briefly or

permanently, but also as a means of creating a general state of anguish, insecurity

and fear.’ This was certainly a characteristic shared by extrajudicial killings,

which Amnesty International described as occurring often ‘as part of an overall

policy of ruling by intimidating and breaking down independent social

movements and political opposition by the most extreme means.’ 21 (Emphasis

mine)

Notwithstanding the fact that politicians and celebrities have

been targeted as well, it cannot be denied that they receive better

treatment in the Tokhang campaign.

Instead of aiming the campaign to all walks of life, authorities

have unjustly used it to terrorize the poor communities and for other

purposes not within the scope of the presidential directive, which in

itself is already contrary to law.

Inhumane for ‘sub-humans’

The Philippines had been one of the trailblazers in ratifying

international conventions on human rights such as the ICESCR,

Universal Declaration of Human Rights, and the International

Convention on Civil and Political Rights. The Supreme Court has also

strengthened its duty to provide provisional remedies to ensure that

human rights are upheld through the judicial writs of amparo and

habeas data. Our 1987 Constitution also provides a whole article for

the Bill of Rights that upholds one’s rights to an opportunity to be

heard, a fair trial, writ of habeas corpus, and custodial investigation,

among many others.

The problem, in the end, is that human rights in the Philippines

look good on paper, but the government itself is the perpetrator for
21Christian D. Pangilinan, The Dispute Over Extrajudicial Killings: The Need to Define Extrajudicial Killings as
State-Sponsored Acts, 86 PHIL. L.J. 811, (page cited) (2012).
its violations. And extralegal killings, though they are not new under

the Duterte administration, have evidently worsened, especially since

it is state-sanctioned. The doctrine of state responsibility recognized

in Philippine jurisdiction22 has been overlooked because the head of

state himself says he “does not care about human rights” and that he

would even kill the human rights activists if the drug problem

worsens.23 The people, in turn, spit on human rights as some kind of

poison, which we can ignore just as the president does.

The Philippines have receded backwards to the point where

lawlessness is used as a method to re-establish the law, despite the

blatant loss of faith (due to ignorance, perhaps?) in the justice system.

What many are so prone not to recognize is that the anti-drug

campaign is unfair, all the same. It twists the law for its self-serving

purpose.

As mentioned earlier, the anti-drug campaign is primarily

focused on the lower class. Which would leave us to ponder, is it a

measure to uproot crime, or is the deprivation of human rights a tool

for people to beg for an anti-democratic society that would further

subjugate the poor in the guise of a vision of a crime-free community

or, as what the sympathizers of the killings are so inclined to call–in a

euphemism with a spoonful of sugar on top–“discipline”?

22 Summary & Extrajudicial Killings in the Philippines. A Submission to the United Nations Human Rights Council
for the Universal Periodic Review of the Philippines (3rd Cycle, 27th Session, 2017) Submitted by Ateneo Human
Rights Center (AHRC).
23 Duterte threatens to kill human rights activists if drug problem worsens.

http://newsinfo.inquirer.net/848933/duterte-threatens-to-kill-human-rights-activists-if-drug-problem-
worsens