EJK or ELK: using A.O. #35 as shield

Whatever the term, it’s murder or homicide under the penal code unless the killing is in self-defense or defense of other persons. Any killing “outside the legal process” is unlawful

Related column: “EJK, ELK, murder: why the confusion,” News Sense, Oct. 9, 2017

Foreign Affairs Secretary Allan Peter Cayetano did it. Philippine National Police, through PNP chief Ronald de la Rosa, did it. Harry Roque, as congressman and now presidential spokesman, did it.

They used the listing under Administrative Order #35, series of 2012, to justify the claim that the country under President Duterte has a zero record on extrajudicial killings (EJKs) or extra-legal killings (ELKs).

And they are right. About the limited definition under A.O. #35. But not about their claim, using that listing, that there have been no EJKs since June 30, 2016.

Their argument runs like this: killings of drug lords, pushers, users, and innocent bystanders are not included in A.O. 35’s listing; therefore they shouldn’t be counted as EJKs or ELKs. The countrys reputation has been tarnished by the killings that were counted as EJKs or ELKs and thus human rights violations.

Order’s purpose

But the listing under A.O. #35:

is only for operational purposes, or as the order puts it, “for purposes of focused management,” to confine the groups resources to politically-related crimes;

merely specifies the ambit of the task force: crimes against (1) members of political, environmental, agrarian, labor or similar groups; (2) people who advocate such causes; (3) members of the media; and (4) those mistaken to be such members or advocates.

excludes other killings because the task force targets a specific crime genre: killings and incidents of torture, forced disappearances and other assaults on the safety and security of persons engaged in lawful opposition.

Not less punishable

Killings of drug traffickers didn’t fit into the task force agenda at the time. But that wouldn’t make the killings less criminal or unlawful.

Then president Noynoy Aquino issued the A.O. to meet the need to solve swiftly and effectively crimes that were aimed to “silence” legitimate “dissent.” It was Aquino’s statement of concern in creating the Inter-Agency Rights Committee in 2012, just as it was in Gloria Arroyo’s Task Force Against Violence in 2007.

Killings of drug suspects then was not as rampant and brazen as they have become in the past 18 months or so. As with other homicides and murders, they were handled by the police as common crimes. They couldn’t be lumped with political violations under Noynoy’s or GMA’s task force but it didn’t mean liquidating or “salvaging” drug traffickers is not EJK or ELK.

Defining terms

“Extralegal” is the specific word used in the title of A.O. #35, not “extra-judicial.” The first, ELK, is broader as it distinguishes the illegal from court-sanctioned executions and from killings in personal defense or in defense of others. An objection in the House to the term EJK was once premised on the absence of death penalty: since that has been abolished, there can be no more EJK, some lawmakers argued.

ELK is the more appropriate word and it’s the word A.O. #35 uses, right in its title. Although neither EJK or ELK is defined by law, the Supreme Court has defined it: “illegal taking of life regardless of motive, summary and arbitrary execution, salvaging of suspects.” And international bodies and treaties are plain and specific say it is “the killing of a human being outside the legal process.”

Roque yesterday (Monday, Dec. 11) called detained senator Leila de Lima and human rights chief commissioner Chito Gascon “hypocrites” for accusing the administration of committing EJKs when they, as members of the task force that operated under A.O.#35, should know what the term means. Still unsolved Just confused over terminology or deliberate distortion of the terms to suit their respective interests?

From where most people sit, it’s clear enough: the killings of drug dealers are not EJKs under A.O. #35 and therefore not under the ambit of the Aquino-created task force.

But still they are EJKs, or more precisely ELKs, under accepted standard definitions. And most of these crimes, punishable under the laws of the land, have remained unsolved.