TagExtrajudicial Killings

Topping the Impunity Index

Topping the Impunity Index” was first published in the Philippine Daily Inquirer on October 7, 2017. 

Ranking 69 countries, the 2017 Global Impunity Index (GII) gave us first place. This suggests that if you are a criminal, you are safest practicing your occupation in the Philippines. You would be less likely to be arrested; if arrested, prosecuted; if prosecuted, convicted; if convicted, punished. If you had the lofty connections of, say, a senator or a president, you can, after sentencing, hope for pardon.

To be fair, the Duterte administration cannot take sole credit for this dubious distinction. Impunity has plagued us for decades, leading many to favor tough action against suspected criminals and, up to a point, to excuse police violations of due process. The backlash against EJK shows this point may have already been reached. A law-and-order president should want the GII image of the Philippines corrected.

Addressing impunity requires interrogating two factors affecting the framework of security, justice and human rights. First, has the state invested resources to provide enough policemen and jails, judges and courtrooms, and human rights monitors to ensure the rule of law? Bureau of Jail Management and Penology (BJMP) Director Serafin Barretto said the jail congestion rate of 558 percent was the world’s highest in 2015, beating Haiti’s 454 percent.

Looking at the number of judges against population, GII figures showed a global average of one judge overseeing 6,250 people. In Croatia, the least afflicted by impunity, the ratio was 1:2,200 and in Mexico, 1:23,800. The ratio of Philippine lower court judges to population in 2006-2009 was over 1:60,000.

In 2017, the Philippines maintained one police officer for 650, against the global average of 1:315. Mexico surpassed this average number with 280 people for each police officer. But Mexico’s fourth-place finish in the 2017 GII drives home the centrality of the second factor affecting impunity: the operational effectiveness of the security and justice systems. Do the people running these systems possess the requisite knowledge, skills, and values? Consider Caloocan.

Raising the number of police officers and judges to a minimum level is necessary, but not sufficient, to avert the problem of impunity. Law enforcers must also have the necessary qualifications for the job and follow the rule of law in their application. Monitoring their respect for human rights is thus a necessary measure to ensure the proper functioning of the security and justice systems.

The Duterte administration inherited deeply flawed systems—and made problems worse in three ways. It launched the war on drugs without serious planning for the issues of detention and rehabilitation. The BJMP predicts drug arrests this year to approach 200,000. In the urban areas, drug suspects make up 75-80 percent of prison inmates. Will a prison sentence in overcrowded jails, at the 2012 budget cost of P19,345 per prisoner—higher than the P15,000 conditional cash transfer family subsidy—contribute to the rehabilitation of drug addicts?

Second, opinion surveys reflect a widespread concern that a large number of crimes concealed by impunity are now committed by state agents. Consider Caloocan and the killing of Korean Jee Ick-joo in Camp Crame. Senators have recognized that EJK does happen and thousands of “under-investigation” cases remain unresolved. Even more alarming, the President has encouraged, by word and deed, the belief that constitutional guarantees of human rights and due process will not deter the war on drugs. Consider Caloocan and the downgrading of the charges against the 19 killers of Albuera Mayor Rolando Espinosa.

Third, resource constraints that systemically impede the delivery of justice politicize and aggravate the issue of implementation. On the corruption cases, the protest is not that those charged are innocent, but that equally guilty parties have not been prosecuted. If we cannot simultaneously prosecute all “big fish” criminals, do we abandon convicting those we can?

Mr. Duterte gallantly insists that ladies should go first; he should be investigated for hidden wealth only after the investigation of the Chief Justice and the Ombudsman. The ladies have declared their willingness to undergo investigation. Mr. Duterte has rejected investigation by the Office of the Ombudsman. In rejecting constitutional processes to check abuse of power, he gives further substance to the GII judgment giving the Philippines the global prize for tolerating impunity. ###

Edilberto de Jesus
Edilberto de Jesus is a former Secretary of Education. He is also professor emeritus at the Asian Institute of Management.

EJK: policy and practice

EJK: policy and practice” was first published in the Philippine Daily Inquirer on September 23, 2017. Photo by PCOO.

The messages in the Sept. 21 “Day of Protest” at the UP Chapel Mass and the unveiling of the Jose “Pepe” Diokno statue at the Commission on Human Rights headquarters inevitably focused on EJK. The issue remains cloudy, despite the precious time Senate hearings spent fruitlessly debating what has become almost an academic issue: Is there a government policy to kill drug offenders?

PNP Chief “Bato” dela Rosa insisted that President Duterte has never issued a policy statement or direct order instructing the police to kill drug addicts. Mr. Duterte has maintained the same point. Although he has explicitly warned addicts, “I will kill you if you are destroying my country,” he tirelessly repeats that no law prohibits him from threatening to kill criminals.

Until someone miraculously discovers evidence of high officials prescribing EJK, government authorities can simply stand on their denials. Debating the issue only served to inflict on the public Dela Rosa’s tearful defense of his misunderstood, unappreciated policemen. But, whether explicitly mandated or not, EJK is undeniably taking place, raising legitimate questions about unresolved killings done during police operations or by unnamed vigilantes.

The issue is not policy, but practice. Threats to kill addicts would not themselves be alarming, except that suspects actually end up dead without benefit of due process. The administration has made little progress investigating these thousands of deaths, let alone delivering justice to the victims.

The corollary question revolves around the extent to which Duterte statements contributed to justifying and promoting the practice of EJK. Both BBC and the New York Times have collected some choice items:

“Forget the laws on human rights…. You drug pushers, holdup men and do-nothings, you better go out. Because … I’ll dump all of you into Manila Bay, and fatten all the fish there.”

“[As mayor] I’d go around in Davao with a motorcycle … and I would just patrol the streets, looking for trouble…. I was really looking for a confrontation, so I could kill.”

“Hitler massacred 3 million Jews. Now, there are 3 million drug addicts… I’d be happy to slaughter them.”

He stood by the police charged with the killing of Albuera Mayor Rolando Espinosa, “because they might have really followed my order (Kasi baka nga talaga sinunod yung utos ko).”

Presidential apologists twist their tongues and turn cartwheels to interpret the intent of these statements on EJK and impunity as histrionic, hyperbolic, or humorous. But presidential words matter. At the minimum, the death count in the drug war clearly causes the President little concern. He rejoiced at the one-day record of 32 drug-war deaths established in August: “That’s beautiful (Maganda yun). If we can just kill 32 every day then maybe we can reduce what ails this country.” At that rate, journalist Vergel Santos calculated, it would take Mr. Duterte over 34 years to eliminate his estimated 4 million drug addicts.

We are also familiar with policies and regulations that are routinely violated because they are not enforced and violations go unpunished. We now discover examples critical to the drug war.

Within a year, two shipments totaling nearly 1,500 kilos of “shabu” went through the Bureau of Customs. Sen. Franklin Drilon and Sen. Panfilo Lacson noted that the laws prescribe detailed guidelines on the disposal of captured drug materials and the prosecution of suspects implicated in the capital, nonbailable crime of drug trafficking. Sen. Richard Gordon joined them in denouncing the lax implementation of policy that allowed massive quantities of drugs to flood the country—while the police vigorously hunted down possible peddlers of shabu sachets.

We see, on one hand, clear policies, validated by successful antidrug campaigns in other countries that interdicted the flow of drugs from overseas and targeted the big drug lords, which are not being faithfully enforced. On the other hand, we see piling up suspected and unresolved EJK cases; the administration denies that this is the result of policy, but the suspicious deaths are daily happening in practice, without visible government intervention.

It is a curious and outrageous predicament that has not provoked, but might have justified, the usual presidential expletives. ###

Edilberto de Jesus
Edilberto de Jesus is a former Secretary of Education. He is also professor emeritus at the Asian Institute of Management.

What makes Callamard ‘scary’?

What makes Callamard ‘scary’?” was first published in the Philippine Daily Inquirer on September 2, 2017. Photo by CMFR.

On the day of Kian delos Santos’ interment at La Loma Cemetery, Agnes Callamard, the United Nations’ special rapporteur on extrajudicial killings, said in a tweet: “My heart-felt condolences to #Kian family and to all families victimized by this cruel war.” The tweet carried the hashtags #Makehisdeaththelast and #Philippines.

Asked for his reaction to the Callamard tweet, President Duterte could have responded in several different ways. Perhaps he could not honestly commit to a war on drugs that did not result in casualties. But he could have reassured Callamard that his administration did not condone the extrajudicial killing of Kian and would take the necessary steps to avoid adding to the list of EJK victims.

He had already arrived at the same conclusion—emerging from surveillance cameras, the testimony of witnesses, the autopsy conducted by the Public Attorney’s Office—that the Filipino public and Callamard reached: Police operatives had murdered Kian. After seeing the CCTV footage, he reportedly called PNP chief Ronald dela Rosa to order the arrest and detention of the policemen involved.

In many of his public speeches, Mr. Duterte routinely repeats his standing orders to the police: In the performance of their lawful duties, they can kill suspects who offer violent resistance and he will defend them against potential charges of human rights violations. But the Kian killing prompted an explicit warning against going beyond the bounds of their mandate: “You are not allowed to kill a person who is kneeling down, begging for his life. That is murder.”

Kian was not the first EJK victim in the war on drugs. But his was the first EJK that Mr. Duterte has tacitly acknowledged. Accordingly, Mr. Duterte does not consider himself obliged to spare the killers from the legal consequences of their crime. The incident might also explain the candid confession: “I promised that I will do away with shabu. Now I know it won’t be fulfilled, that this really will not end.”

A response to Callamard based on his public response to the Kian case would have helped improve the government’s relations with UN human rights officials. Instead, Mr. Duterte reverted to what appears to be the presidential default option when confronting perceived criticism; he cursed Callamard and warned her not to “scare” (takutin) him. This allowed Callamard to take the moral high ground: “Kian and others like him deserve dignity and justice … our respect and empathy. Not expletives.”

A couple of earlier Callamard tweets perhaps explain why Mr. Duterte went ballistic. One claimed Kian was the “latest symbol of a massive, government-led, human rights crisis,” and the second said “all unlawful deaths must be investigated. To stop all murderers.” While the first was clearly critical, it would be difficult to disagree with the second, and it is not clear why the President should find either tweet scary or threatening.

Mr. Duterte also criticized the French legal system as based on the presumption that the accused is guilty and bears the burden of proving innocence. The French Embassy quickly responded, asserting that the presumption of innocence is “enshrined in the French Declaration of Human and Civic Rights of August 26, 1789,” and adding that “France strongly believes in the importance of the rule of law, due process, and respect for human rights in all countries, including the Philippines.” Unfortunately, the French correction will probably fail to reach most of the people who listened to Mr. Duterte and who will remain victims of fake news.

By speaking out against the Kian killing, meeting with the parents and giving assurances that justice will be served, Mr. Duterte has managed to temper the public outrage against EJK. But the immoderate reaction to Callamard raises questions about how differently the war on drugs will be waged. Will there be greater supervision and control of antidrug operations to prevent EJK? A faster pace to the investigation of drug war deaths, now that the Kian killing has prompted collaboration between the PNP and the Commission on Human Rights?

If these are genuinely new objectives in a war he insists must continue, Mr. Duterte will need the public’s assistance in monitoring its conduct, to avert more Kian killings or ensure that the killers are punished. ###

Edilberto de Jesus
Edilberto de Jesus is a former Secretary of Education. He is also professor emeritus at the Asian Institute of Management.

Who’s afraid of Sergei Magnitsky?

Who’s afraid of Sergei Magnitsky?” was first published in the Philippine Daily Inquirer on July 22, 2017. 

He is, after all, dead. He died in 2009, according to Russia’s Presidential Human Rights Council, after severe beatings while detained in a Russian prison for abetting tax evasion. But the circumstances of his death led to US legislation carrying his name. Meanwhile, current international concerns over human rights violations and the US election controversy have suddenly thrust to new prominence the laws he inspired.

An auditor in a Moscow legal firm, Magnitsky exposed a $230-million tax fraud scheme that he discovered while engaged as legal adviser for the London-based Hermitage Capital Management (HCM), one of the largest private equity firms investing in Russia. Human rights groups and HCM blamed his arrest and death on government officials who wanted to silence him. The government also subjected the whistle-blower to a posthumous trial to undermine his credibility. The investigators, who included parties implicated in the tax fraud case, concluded that he had been legally arrested and had not been tortured.

Undeterred, Magnitsky’s supporters compiled a list of some 60 officials from the interior ministry, police and tax authorities whom he had identified as involved in the corruption. In 2012, as retribution for Magnitsky’s death, the US Congress passed the Magnitsky Rule of Law Accountability Act. With rare bipartisan support, Congress expanded the scope of the law in 2016, by enacting the Global Magnitsky Human Rights Accountability Act.

The law empowers the president to deny entry into the United States and to freeze the assets of any foreign person or entity found responsible for torture, EJK and other gross violations of internationally recognized human rights, and anyone acting as agent in such activities. Explicitly covered also are government officials and their senior associates responsible for, or complicit in, committing these violations and other acts of significant corruption.

These laws have not been widely enforced, even against Russians; the earlier, narrower law had resulted in action against 18 Russian individuals. But the ongoing investigation of possible collusion between Donald Trump’s presidential campaign organization and Russian government agents to discredit Hillary Clinton has focused attention on these laws. The mission of the Russian group that met with Donald Trump Jr. was apparently to lobby against the Global Magnitsky Act. Two factors may explain why this law would concern Vladimir Putin and why its repeal or weakening would become an important foreign policy priority.

First, President Trump, writing to Congress last April, said his administration was “actively identifying persons and entities to whom the Act may apply and collecting the evidence necessary to apply it.” He also expressed the intent to “fulfill our commitment to hold perpetrators of human rights abuses and corruption accountable.” While there is no assurance that Trump can deliver on this promise, the issue of Russian meddling in the US election will make it difficult for him to take a stance that appears to soften the law.

Second, other countries have begun the process of passing their own versions of the Global Magnitsky Act. During the third reading of the Criminal Finances Act in the Commons, UK Security Minister Ben Wallace stressed the need, in an increasingly global marketplace, to “make the UK a hostile environment for those seeking to move, hide and use the proceeds of crime and corruption.” In 2015 then Canadian Justice Minister Irwin Cotler tabled a unanimously adopted parliamentary resolution for a Magnitsky Act to protect international human rights as a key foreign policy goal of Canada and the expression of its principles and core values.

In deploying the Magnitsky Act or its equivalent as a weapon against cross-border corruption and human rights violations, governments can apply punitive measures on specific individuals implicated in these crimes without imposing sanctions that indiscriminately punish an entire country. This targeted response sends a clear signal that the rejection of corrupt business practices and respect for human rights have emerged as values shared worldwide.

Those whose current control of political institutions enjoy impunity at home for gross human rights violations, such as complicity in EJK, enjoy no assurance that this control is permanent. Their world will shrink into an increasingly smaller place as more countries reject granting them impunity for their crimes abroad. ###

Edilberto de Jesus
Edilberto de Jesus is a former Secretary of Education. He is also professor emeritus at the Asian Institute of Management.

Pardon for the Albuera 19?

Pardon for the Albuera 19” was first published in the Philippine Daily Inquirer on April 1, 2017. Photo by PNP-PIO

Two events last week raised extrajudicial killing (EJK) as an urgent concern for our political leaders and the public. No April Fool’s joke.

On March 27, PNP Director General Ronald “Bato” dela Rosa launched his personal drive to “disprove” claims of 7,000 EJKs. On March 29 in Oriental Mindoro, Du30 said he would advise the policemen charged with the killing of Albuera Mayor Rolando Espinosa to plead guilty, and then grant them absolute pardon.

The government has tried various ways to counter claims about EJKs in the country. One attempt was to redefine it away. Assistant Interior Secretary Epimaco Densing III argued that, without a death penalty, there is no judicial killing: “If a country has no judicial killing, there’s no extrajudicial killing.” Another approach was to decline the search for evidence of its existence.

Whistle-blowers Edgar Matobato and Arturo Lascañas offered testimony on EJKs based on personal knowledge, under oath and against self-interest. Detecting mistakes in details, the Senate inquiry dismissed Matobato’s veracity; EJK victims, for instance, were wrapped in “packaging,” and not “masking,” tape, as he had claimed. But masking tape was the common generic term in the region, the way Colgate once stood for toothpaste.

Senators deemed Lascañas untrustworthy. He had fooled them once in denying that “death squads” operated in Davao; they refused to be fooled a second time. As appropriate reflection for Holy Week, one wonders if our bible-thumpers in the Senate would disqualify Peter as a witness because he thrice lied knowing Christ.

Dela Rosa took a slightly different tack. That over 7,000 killings have taken place under Du30’s watch was not really in dispute. The controversy was over the classification of these killings. Which ones were EJK?

From Dela Rosa’s perspective, none of them. At a Camp Crame briefing, he asked the media to “forget about EJK, don’t use that term,” challenging them to cite any instance when the PNP used it. For him, EJK meant “state-sponsored killing.” But a meaningful response to EJK allegations must take the term as it is generally understood.

The essential element of EJK is not state-sponsorship but the participation of state security forces or their agents in the killing of any person without sanction of a judicial or legal process. Rogue police can commit EJK. Both Dela Rosa and Du30 have publicly denounced widespread police corruption that required the suspension of “Tokhang” operations.

To assert that the government has not ordered, has opposed and has punished EJK is not sufficient. International law binds states to “take effective action to prevent, combat and eliminate [EJK] … in all its forms and manifestations.”

As Dela Rosa intended, the criterion of state sponsorship for EJK sets a high bar for proof. But Du30 has undermined his intent by intervening in the case that comes closest to meeting the standard: the killing of Albuera Mayor Espinosa. In the dark of dawn, avoiding security cameras and keeping eyewitnesses at bay, 19 police agents, including high-ranking officers, killed Espinosa in his jail cell. A confessed drug criminal and father of a drug lord, Espinosa had surrendered to Dela Rosa, believing that he would be safe in prison.

The NBI and several senators concluded that Espinosa’s death was a “rubout.” No official, written order for the Espinosa killing has yet surfaced. But the careful planning and the involvement of so many PNP and state agents give the case the odor of a premeditated state operation. Du30’s insistence from the beginning that the killing was justified and that he would give them absolute pardon may supply the final stamp of state sponsorship of murder.

Many may believe that Espinosa deserved to die because he was a drug-addict bastard. But Du30 has a rather broad list of bastards he considers deserving of death. Who is to say who will land on that list?

Senators Antonio Trillanes, Panfilo Lacson, Grace Poe and Bam Aquino have opposed Du30’s plan, which would effectively transform the police into a private presidential force vested with impunity. They need the support of their colleagues in the government and of the public. #####

Edilberto de Jesus
Edilberto de Jesus is a former Secretary of Education. He is also professor emeritus at the Asian Institute of Management.

© 2017 Second Thoughts

Theme by Anders NorénUp ↑