The term EJK or extrajudicial killing means the killing of a person outside the bounds of law. “Judicial killing” happens courts impose the death sentence. In 2006, the penalty of death was prohibited by Republic Act (RA) No. 9346 (An Act Prohibiting the Imposition of Death Penalty). 

At present, there is no legal or state-sanctioned killing.

Killing as a crime can take many forms — parricide (i.e. killing of parent or spouse), infanticide (killing of any child under three days old), etc. It is murder when committed by ‘with treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity,’ or ‘in consideration of a price, reward,’ or with ‘evident premeditation.’

It means that the killing was planned and the victim targeted. It is not some random attack. Knowing how EJKs are carried out — suddenly, usually in the night, by a group of armed men with or without insignia, sometimes in the process of serving a warrant or during the transport of arrested persons — all EJKs are murders. EJK is a heinous crime because it is in essence murder which is a heinous crime. (RA No 7659 and RA No 11928)

Law enforcement agencies are well-versed in the investigation, prosecution and public defense of the crime of murder. It is a common index crime proven by a combination of testimonial, documentary, or forensic evidence. The usual defenses are likewise well-known. 

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The filing of murder charges will immediately address the concern that it is hard to prosecute and convict perpetrators of EJK. Existing law and procedure can secure a conviction in two years or less. In fact, for each EJK, a case can already be lodged against certain John Doe, detailing the circumstances of death. For each EJK, a crime is committed and there is every right to take this course of action. Justice will be done if any one or more of the killers is found guilty.

There is no thin line between EJK and murder: EJK is murder, and murder in the context of state impunity will make it an EJK. It is clear that if a public officer hires a killer, both parties are liable for the crime of murder — the public officer as a principal by inducement and the hired gun as a principal by direct participation. A public officer is not government. In this case, it is not EJK. It is fallacious to state that when a public official kills in his official capacity, “it might be considered an EJK.” 

Definition needed

Is there a need then to specifically define and penalize the crime of EJK?

Yes, there is because in EJK, there is the color of authority or the imprimatur of the state. EJK is an impunity killing because the state actors cannot be effectively held to account — investigating themselves as suspects.

By the way, the present definition of EJK in Section 5(l) of RA No. 11188 that provides special protection of children during armed conflict is not a criminal law definition but a political one consistent with the country’s commitment to human rights. It defines it as “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 UN Covenant on Civil and Political Rights, the UN Convention on the Rights of Children xxx to which the Philippines is a State party.”

Thus, this provision cannot be used in the criminal prosecution of EJK and legislation can provide for a criminal law definition.

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In defining EJK, it must be able to solve the three challenges in the investigation of EJK.  One, it must be undertaken by a higher or empowered authority to gather and secure evidence. Two, it must be led by seasoned and dedicated investigators and prosecutors who intimately know the organizational structure of the police. Third, there must be consistency in the efforts to build cases one by one starting with an initial list of 10 unsolved killings.

Ten cases is set as an estimate to establish a pattern of state authorization or support for a finite number of state actors with the same modus of operation who went beyond the call of duty and outside the rule of law. The implication is that when there is “enough” evidence in court, those who were in positions of power and authority during the EJK can and ought to be held to account. It is not merely an aggravating circumstance to murder because it is by typology a “systemic killing” carried out by persons who in the first place were swore to honor and to protect and yet used government resources and the semblance of law to literally get away with murder.

In practical terms, there is no difference between a conviction for murder or for EJK as both are to be penalized by reclusion perpetua. Consistently under criminal law, any principal or conspirator who took part in the killing are liable. For the victims and their families, any judgement against the killers is the ultimate test of a working justice system. – Rappler.com

Geronimo L Sy is a career justice worker.