Problem Rationale: San Sebastian College Recoletos-Manila
Problem Rationale: San Sebastian College Recoletos-Manila
Chapter 1
PROBLEM RATIONALE
1.1 Introduction
question is now posed, "how will the State adopt necessary legislative and other
legal remedies against violations, and bring perpetrators of gross human rights
violations to justice"?
While the effect of withdrawal from the International Criminal Court may
necessary to study its role in resolving crime against humanity such as massive
1
Human Rights Watch. (2017). License to Kill. Human Rights Watch. Available at:
https://www.hrw.org/sites/default/files/report_pdf/philippines0317_insert.pdf
2
The Philippine Constitution declares that the State values the dignity of
every human person and guarantees full respect for human rights. 2 Also, the State
is obliged to promote human rights and secure such not only for victims, but for
the society as a whole. By principle of erga omnes, the State has the obligation
adequate protection of human rights, the State has an obligation to investigate the
facts surrounding every killing and punish those who are responsible for doing
SAN SEBASTIAN COLLEGE RECOLETOS-MANILA
unlawful acts against another person. The very purpose of the said obligation is
for every State party to ensure, within its legal system, the rights and freedoms
so called, “drug war,” this paper provides an analysis and data as to whether
Philippine courts, sans the ICC. The study will determine the effectiveness of
2
Section 11, Article II, 1987 Philippine Constitution.
3
Garrido Y. Baigorria v. Argentina, 27 August 1998, Series C No 39, Para 72.
3
killing?
victims the rights and safeguards that they ought to be guaranteed of?
Do these laws comply with the standard human rights set by other
SANCovenant
International SEBASTIAN COLLEGE
on Civil RECOLETOS-MANILA
and Political Rights and other international
agreements?
extrajudicial killings’ victims, how will they be able to receive adequate legal
remedies?
evaluative method. As to the sources, the researcher will use relevant laws,
extrajudicial killings in the Philippines and the power of the ICC to prosecute
such crime. Also, jurisprudence decided by the Supreme Court which deals with
extrajudicial killing are provided for thorough discussion. All pending bills and
4
1.3 Objectives
cases are prosecuted in the Philippines. The paper desires to critically determine
whether there is really a need for the extrajudicial killings’ victims to seek help
SAN SEBASTIAN
from the international body COLLEGE RECOLETOS-MANILA
like the International Criminal Court. Hence, the
problem of resolving human rights violations with and without the International
withdrawal to the ICC, provides plausible suggestions whether there is a need for
For lawyers, in case they have clients who need to receive justice because
the benefits of actively bringing justice for extrajudicial killings’ victims and
the effect of the State’s withdrawal from the International Criminal Court, its
plausible effect in the future massive crimes and who will answer for the crimes
for justice on their behalf, to be educated on how to fight for their claims,
the Universal Declaration of Human Rights, and other treaties to which the
observe how the unilateral power of a President is withdrawing from a treaty and
international law, legal concepts and practical application to their daily lives.
To limit and define the scope of this study, the following considerations
United Nations Covenant on Civil and Political Rights, the UNCRC and other
killing. As to depth, practical application, and extent, this study will solely cover
the rights of the extrajudicial killings’ victims using the analysis acquired from
For purposes of this study, the following terms, words or phrases shall be
citizens;"
4
Administrative Order No.35 s.2012, Creating the Inter-Agency Committee on Extra-legal
killings, Enforced Disappearances, Torture, and other Grave Violations of the Right to
Life, Liberty, Security of Persons. November 12, 2012.
5
United Nation. (1948). Universal Declaration on Human Rights.
Available at: https://www.un.org/en/universal-declaration-human-rights/
8
rights include the right to life and liberty, freedom from slavery and torture,
investigates and, where warranted, tries individuals charged with the gravest
SAN SEBASTIAN
“Domestic COLLEGE
Laws” refers RECOLETOS-MANILA
to laws enforced in the Philippines;
killings’ victims;
whole; and
6
Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998,
ISBN No. 92-9227-227-6.
9
Chapter 2
RESEARCH LITERATURE
instruments such as laws, treaties, and jurisprudence. Also, there will be a section
every citizen8. It protects the right of the accused to a fair trial, including the
opportunity to be heard.9 The protection of the right to life and liberty of all
extralegal killings are “killings committed without due process of law, i.e.,
7
Art. X, Sec. 2. 1987 Philippine Constitution.
8
Id., Art. III, Sec. 2.
9
Id., Art. XIV, Sec. 2.
10
Id., Art. III, Sec. 1.
10
nature and purpose, constitute State or private party violation of the constitutional
rights of individuals to life, liberty and security.12 In a 2008 ruling, the Supreme
nature and purpose, constitute State or private party violation of the constitutional
SAN SEBASTIAN
rights of individuals COLLEGE
to life, liberty RECOLETOS-MANILA
and security.” 13
First, the Rule on the Writ of Amparo 14 was released "in light of the
for the first time of the Court’s expanded power to promulgate rules to protect the
people’ s constitutional rights. Said power made its maiden appearance in the
regime. As the Amparo Rule was intended to address the intractable problem of
11
G.R. No. 180906, Oct. 7, 2008.
12
G.R. No. 182498, Dec. 3, 2009.
13
Roque. Police can’t define EJKs. Philstar. 1 November 2017. Available at:
https://www.philstar.com/headlines/2017/11/01/1754593/roque-police-cant-
define-ejks
14
The Rule on the Writ of Amparo of 2007, A.M. No. 07-09-12-SC. 25 September 2007.
11
are ‘killings committed without due process of law, i.e., without legal safeguards
or judicial proceedings."
Other Grave Violations of the Right to Life, Liberty and Security of Persons is
chaired by the Department of Justice (DOJ), was formed. The rationale of this
SAN SEBASTIAN
law is to assure full support ofCOLLEGE RECOLETOS-MANILA
the Philippine National Police, National Bureau of
Investigation and the National Prosecution Service to see the spirit of A.O. No. 35
prosecutors all over the country, not only to secure the paradigm shift in our ranks
that will encourage our prosecutors to take a more proactive approach at the
implementation of A.O. No. 35, the extrajudicial refers to killings wherein: (a.)
15
Id.
16
Department of Justice. Operational Guidelines of A.O. No. 35 Inter-Agency Task Inter-
Agency Committee (IAC) on Extra-Legal Killings, Enforced Disappearances. 19
April 2013. https://www.doj.gov.ph/news_article.html?newsid=178
17
Ibid
12
The victim was: i.) a member of, or affiliated with an organization, to include
mistaken or identified to be so. (b.) The victim was targeted and killed because of
responsible for the killing is a state agent or non-state agent; (d.) The method and
Third, Republic Act Number 9851, an act which defined crimes against
SAN
international SEBASTIAN
humanitarian COLLEGE
law, genocideRECOLETOS-MANILA
and other crimes against humanity, and
Humanitarian Law (IHL) as well as human rights in the Philippines. It is the first
national statute which defines and penalizes "the most serious crimes of concern
acts and omissions of State actors that constitute violation of the general
Rights, the United Nations Covenant on Civil and Political Rights, the UNCRC,
18
Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other
Crimes Against Humanity of 2009. Republic Act Number 9851 (2009).
13
and similar other human rights treaties to which the Philippines is a state party"
noted that it is in the context of law on children in armed conflict. Thus, there can
be no certainty if it can be applied to the war crime, “drug war killings” until
tested in a court.20
Civil and Political Rights and is duty-bound to address the spate of summary
19
Section 5, Republic Act No 11188. Special Protection of Children in Situations of
Armed Conflict of 2019.
20
Buan, Senate Bets Push for Body Cams, Anti-EJK Law to Stop Killings, Rappler News.
February 24, 2019. Available at: https://rappler.com/nation/elections/senate-
bets-police-body-cameras-anti-ejk-law-stop-killings
21
U.N. 6th Congress of the United Nations on the Prevention of Crime and the Treatment
of Offenders, (1980), Resolution No. 5 concerning Extrajudicial executions, ¶¶2,
5, A/CONF.87/14/Rev.1 (1981); Case of Barrios Altos v. Peru, Series C No. 75,
IACHR Judgment (Mar. 14, 2001); Case of the Rochela Massacre v. Colombia,
Series C No. 163 (May 11, 2007); Case of Almonacid Arellano et al. v. Chile,
Series C No. 154 (Sept. 26, 2006); Case of The Massacres of El Mozote and
nearby places v. El Salvador, Series C No. 252 (Oct. 25, 2012); International
Crimes, 20 October 2000, OAS/Ser./L/V/II.111, doc. 20 revs. 16).
14
situations involving the arbitrary deprivation of life. While its application will
official or other person acting in an official capacity; 2.) whose acts were
intentional or negligent; 3.) and resulted in one or more deaths; 4.) and who knew
or should have known that death may result from their acts; 5.) and who failed to
SAN
comply with SEBASTIAN
any COLLEGE
relevant standards RECOLETOS-MANILA
regarding the use of force, including the
acts were not authorized by legal process or complied with the rule of law.22
established that the state action requirement can be implicated when non-state
violations.”26 When a state knows or should know that an unlawful killing has
investigation.27 This obligation “gives practical effect to the duties to respect and
SAN SEBASTIAN COLLEGE RECOLETOS-MANILA
protect the right to life, and promotes accountability and remedy where the
caused unlawfully, the State must ensure that identified perpetrators are
Law 454 (Andrea Bianchi ed., 2009) (noting that the state actor requirement can
be fulfilled when the state acquiesces to human rights violations by private
actors).
26
United Nations. (2016). Report of the Special Rapporteur on Extrajudicial, Summary
or Arbitrary Executions, ¶ 20, U.N. Doc. A/71/372.
27
Minnesota Protocol, supra note 103, at 7–8. See generally MELZER, supra note 140,
at 431.:
“All major human rights bodies have held that the obligations flowing
from the right to life necessarily entail a duty of the State to investigate
deprivations of life on the part of its agents, and that non-compliance with this
duty may in and of itself amount to a violation of the right to life.”(citation omitted);
see also Burgorgue-Larsen & Amaya Ubeda De Torres, supra note 158, at 345–
47
28
Minnesota Protocol, supra note 103, at 4.
29
Id.
16
2.1.4 Jurisprudence
2.1.4.1 Domestic
it stands, the writ of amparo is confined only to cases of extrajudicial killings and
30
Id. p.104
31
G.R. 184379-80, April 24, 2012.
32
Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other
Crimes Against Humanity of 2009. Republic Act Number 9851 (2009).
17
the Amparo Rule is now a procedural law anchored, not only on the constitutional
rights to life, liberty and security, but on a concrete statutory definition as well of
2.1.4.2 International
SANaSEBASTIAN
acknowledged violation of COLLEGE RECOLETOS-MANILA
the procedural component when Paraguay failed to
actors. In this case, the National Police attacked a group of demonstrators who
force, including tear gas, water cannons, and firearms, to disperse the crowd. The
decedent was shot and killed at point blank range by the police. While the
government opened an inquiry into the death, it made little progress and reached
government had an obligation to protect the lives of the demonstrators.35 But, the
Article 6.” For these reasons, the Committee concluded that a violation “may
them.38 Several shots ricocheted and struck the victim while walking near the
SANarea.
demonstration SEBASTIAN COLLEGE
Despite the victim’sRECOLETOS-MANILA
death, the government failed to conduct
existed no procedure either for reviewing the lawfulness of the use of lethal force
36
Id. See also Joseph & Castan, supra note 158, at 176–79
(summarizing various cases before the HRC in which the Committee affirmed
that states have positive obligations to investigate and provide redress for
violations of human rights).
37
Mocanu and Others v. Romania, ECHR/10856/09.September 14, 2014
38
Aceves, W.J., (2018) When Death Becomes Murder: A Primer on Extrajudicial Killing,
California Western School of Law. pp.153-154
39
Id., p. 155
19
independent nor thorough. Accordingly, the Court held that Romania had violated
First, House Bill No. (HB) 9199,41 the Human Rights Defenders Protection
SAN SEBASTIAN COLLEGE RECOLETOS-MANILA
bill, aims to prevent human rights violations against defenders. This bill is based
on the UN Declaration on Human Rights Defenders and the Model National Law
on the Recognition and Protection of Human Rights Defenders that articulates the
United Nations Declaration on Human Rights Defenders into national law.42 The
bill will enter into force if passed by the Senate and approved by the
President. The passage of this bill aims for recognition and protection of human
rights defenders like human rights advocates and activists. According to Front
Line Defenders, the Philippines has the highest rate of killing of human rights
40
Id., p. 156
41
House Bill No. 1911 18th Session (1st Regular Session)
42
International Service for Human Rights. (2016). Model National Law on the Recognition
and Protection of Human Rights Defenders/ Available at:
https://academy.ishr.ch/upload/resources_and_tools/ishr_Model_Law_for_the_re
cognition_and_protection_of_human_rights_defenders_en.pdf.
20
between 2001 and 2018. Also, the bill provides for the right to effective remedy
Second, Senate Bill (SB) No. 371 44, the Anti-Extrajudicial killing Act of 2019,
acts which constitute extrajudicial killings (EJKs) and ensure accountability over
the suspicious deaths recorded under the Duterte administration, seeks to define
SAN
extrajudicial SEBASTIAN
killings COLLEGE
as an unlawful andRECOLETOS-MANILA
deliberate killing of targeted individuals
or groups by agents of the State and under its order or acquiescence in lieu of
own or in the context of vigilantism, campaign or policy of the State." The bill
and the PNP, to look into extrajudicial killings. The unique feature of this bill is,
services from government agencies in carrying out of its mandate. PNP, for its
part, should follow minimum standard for Police Intervention Operations all the
43
Id.p.14
44
Senate Bill No. 371, 18th Congress, (1st Regular Session).
21
time, including ensuring the safety of the arresting team and innocent bystanders,
tool for arrest." Meanwhile, NBI is required under the measure to make its
services available to the CHR and PNP in their inquiries and investigation of
extrajudicial killings cases and observe human rights standards and procedures
SAN
communities SEBASTIAN
beset COLLEGE
by armed conflict. 45 RECOLETOS-MANILA
Under the 1987 Constitution, international law can become part of the
Every State, by reason of its membership in the family of nations, is bound by the
45
Ismael, J., De Lima Refiles EJK Bill, Seeks Accountability for Abusers, Manila Times.
2019, July 16. Available at: https://www.manilatimes.net/2019/07/16/news/latest-
stories/de-lima-refiles-ejk-bill-seeks-accountability-for-abuses/585018/
46
G.R No. 173034, October 19, 2007.
47
Cruz, I.A & Cruz, C.L. (2014) Philippine Political Law, Quezon City, Central Book
Supply.
22
greatly hinges on the constitutional framework of the state in which its provisions
until they are incorporated or transformed into the domestic legal system. 50 In the
case of incorporation, the treaty becomes part of domestic law through a specific
extrajudicial killing. This norm is codified in every major human rights treaty and
International human rights law lays down obligations which States are
obligations and duties under international law to respect, protect and fulfill human
48
Agabin, P. (2011) Mestizo: The Story of The Philippine Legal System, University of the
Philippines, College of Law, U.P. Law Centennial Textbook Project.
49
Id.
50
Art. II, Sec. 2; 1987 Philippine Constitution.
51
Eide, A. (2011). Economic, Social and Cultural Rights: A Textbook, Martinus 2nd Ed.,
cited in Pangalanan, R. (2017). Enforcing Liberty and Prosperity Through the
Courts of Law: A Shift in Legal Thought from Juridification To Judicialization, A
Paper for The Foundation for Liberty and Prosperity.
52
Supra
53
Aceves, W.J., (2018) When Death Becomes Murder: A Primer on Extrajudicial Killing,
California Western School of Law
23
rights. The obligation to respect means that States must refrain from interfering
requires States to protect individuals and groups against human rights abuses. The
obligation to fulfill means that States must take positive action to facilitate the
54
United Nations. The United Nations High Commissioner for Human Rights the
Core International Human Rights Treaties.
https://www.ohchr.org/Documents/Publications/CoreTreatiesen.pdf
55
Ibid.
The International Covenant on Civil and Political Rights
The Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
The International Convention on the Elimination of All Forms of Racial
Discrimination
The Convention on the Elimination of All Forms of Discrimination against Women
The Convention on the Rights of Persons with Disabilities
The International Convention for the Protection of All Persons from Enforced
Disappearance
The International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families
The International Covenant on Economic, Social and Cultural Rights
The Convention on the Rights of the Child and its Optional Protocols.
56
Feyter, K.D., (2005) Human Rights Social Justice in the Age of the Market, Antwerp,
Intersentia.
57
Supra.
24
SAN
ICCPR, held SEBASTIAN
that COLLEGE
‘States should RECOLETOS-MANILA
establish effective facilities and procedures to
which may involve a violation of the right to life.’ 61 A year later, it held in the
case of Almeida de Quinteros that the state must ‘establish what has happened’ to
a person who disappeared and secure her release. It later subsumed this obligation
and ill-treatment, and stated that “complaints must be investigated promptly and
Allegations of excessive use of force by the police must also be investigated. The
Human Rights Committee regularly recalls the duty of states to investigate human
Although the Committee has never discussed in general the nature and scope
SAN SEBASTIAN
b) Bringing to justice theCOLLEGE RECOLETOS-MANILA
perpetrators
c) Paying compensation
The ICC is the first permanent tribunal established with the express goals
of putting an end to ‘impunity for the perpetrators of the most serious crimes of
concern to the international community’ and the prevention of these crimes.64 The
62
Ibid p.42
63
Id. p.46
64
The Rome Statute, at the Preamble.
26
filed before the ICC can adjudicate it. 65 However, an exception is when ICC finds
a case admissible despite domestic action if the court determines that the “state is
Court “shall have the power to exercise its jurisdiction over persons for the most
SANof
serious crimes SEBASTIAN
internationalCOLLEGE RECOLETOS-MANILA
concern, as referred to in this Statute, and shall be
complementary to national criminal jurisdictions.” The ICC must have three types
jurisdiction, (2) jurisdiction over the situation through the nationality of the
defendant or the territory in which the alleged crimes occurred unless the situation
is referred by the U.N. Security Council (UNSC) and (3) jurisdiction in time. In
other words, “the Court must have jurisdiction over the crime itself, over either
the location of the crime or the nationality of the perpetrator (but both are not
necessary) and over the period of time in which the crime was committed.”67
65
The Rome Statute, at the Preamble.
66
Id. Article 17(1) (a)
67
Smeallie. A.N., (2019) Punishing the Punisher: The Role of The International Criminal
Court in Ending Duterte’s “War on Drugs” University James E. Beasley School of
Law. Available at: https://sites.temple.edu/ticlj/files/2019 /05/33.1_ Smellier_
Article6.pdf
27
drugs” fits well within the ICC’s definition of the widespread requirement as an
gravity threshold of Article 17(1)(d) requires that the ICC find a case inadmissible
where “the case is not of sufficient gravity to justify further action by the Court.”69
SAN SEBASTIAN COLLEGE RECOLETOS-MANILA
This gravity threshold ensures that the Court is only involved when the alleged
crimes are of the type that “deeply shock the conscience of humanity,” and are so
grave that they “threaten the peace, security, and well-being of the world.”70
The ICC will prosecute crime if and when national criminal systems fail.
decisive basis of the entire ICC system. The office of the Prosecutor focuses on
68
Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Decision Pursuant to Article 61 (7)
(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-
Pierre Bemba Gombo, ¶ 83 (June 15, 2009)
69
The Rome Statute, supra note 46, art. 17, ¶ 1(d).
70
Id. at Preamble. (offering overarching principles as part of the Preamble of the Rome
Statute).
28
prosecution.71
due process: he may not act arbitrarily or discriminatorily, and cannot abuse his
investigation under Article 15, the Prosecutor must establish a “reasonable basis
to proceed,” which is the lowest evidentiary standard the Rome Statute provides.
SAN SEBASTIAN
Upon a finding that there isCOLLEGE RECOLETOS-MANILA
a reasonable basis to believe the jurisdiction and
admissibility requirements are satisfied, the Prosecutor must submit a request for
systems; it prosecutes cases only when States do not are unwilling or unable to do
so genuinely.72
be found in many international legal instruments and has been further developed
71
Phooko, Moses Retselisitsoe (2011). "How Effective the International Criminal Court
Has Been: Evaluating the Work and Progress of the International Criminal Court,"
Notre Dame Journal of International & Comparative Law: Vol. 1: Iss. 1, Article 6.
Available at: http://scholarship.law.nd.edu/ndjicl/vol1/iss1/6
72
The Rome Statute of the International Criminal Court, How the Court Works; Art.52
Available at: https://www.icc-cpi.int/about/how-the-court-works
29
SAN SEBASTIAN
Torture (the so-calledCOLLEGE RECOLETOS-MANILA
Istanbul Protocol). The UN Principles on Extra-
75
Inter-American Court of Human Rights: Case Velázquez Rodríguez v Honduras,
Judgment of 29 July 1988, Series C No 4, para 176; Case Tibi v Ecuador,
Judgment of 7 September 2004, Series C No 114 para 159; ECtHR, Case Aksoy
v Turkey, Judgment of 18 December 1996, Reports 1996-VII, para 99; Case
Hugh Jordan v the United Kingdom, Judgment of 4 May 2001, Reports 2001-III,
para 141.
76
Id., p.142
77
United Nations. (1993) Report of the Working Group on Enforced or Involuntary
Disappearances. E/CN.4/1994/26, para 45f).
31
that death.78
testify.79
SAN SEBASTIAN COLLEGE RECOLETOS-MANILA
78
United Nations Principles on the Investigation of Torture, Principle 9 of the UN
Principles on Extra-legal Executions; Principle 3 (a); AfrCmHPR, Case Amnesty
International et al v Sudan, (26th and 27th Ordinary Sessions, May 2000), para
51; Case Hugh Jordan v the United Kingdom, Judgment of 4 May 2001, Reports
2001-III, para 127; EcrHR, Case McKerr v the United Kingdom, Judgment of 4
May 2001, Reports 2001-III, para 124.
79
Article 13 (2) of the Declaration on the Protection of All Persons against Enforced
Disappearance; (1992). Principle 10 of the United Nations Principles on Extra-
legal Executions;
32
and the evidence upon which such findings were based, and
protection.85
82
Id., Art.16
83
Id. Principle 15
84
Article 13 (4) of the 1992 Declaration on the Protection of All Persons against Enforced
Disappearance.
85
Principle 17 of the UN Principles on Extra-legal Executions; Principle 5 (b) of the UN
Principles on the Investigation of Torture; I/ACtHR, Case Juan Humberto
Sánchez v Honduras, Judgment of 7 June 2003, Series C No. 99, para 186.
34
SAN SEBASTIAN
linked COLLEGE RECOLETOS-MANILA
to a specific cause or violation, but applies to all
jurisdiction."
2.4.3 Responsibility
86
Principles 7 and 34 of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment; Principle 57 of the United Nations Rules
for the Protection of Juveniles Deprived of their Liberty; (1990) Principle 23 of the
UN Basic Principles on the use of force and firearms by Law Enforcement
Officials.
35
SANof
SEBASTIAN COLLEGE RECOLETOS-MANILA
persons at risk.
disclosure of the truth to the extent that such disclosure does not
disappeared and for the bodies of those killed, and assistance in the
human rights violations when it applied pressure to the case of Marcos. The case
SAN SEBASTIAN
evidently shows COLLEGE
that international RECOLETOS-MANILA
treaties have a great influence in achieving
the “systematic and severe torture” handled by the Fifth Constabulary Security
and the absence of judicial oversight. Evidence reveals that not only was he aware
of tortures and murders enacted by his military and police force, but that he was
condoned and at times arranged for it. This caused tensions between the United
States and the Philippines, pressuring Marcos to admit human rights violations
88
Mccoy, Alfred (2009). Policing America’s regime: The United States, the Philippines,
and the rise of the surveillance state. Madison, Wis.: University of Wisconsin Press.
89
Id.
37
he proclaimed in a televised address that “No one, but no one was tortured”. But
Manila that “there have been, to our lasting regret, a number of violations of the
rights of detainees”.
Right to Life
Reparation &
Remedy
International
Standards
Security &
Well-being
Right to Investigation
Witness
Protection
90
Pumipiglas: Political Detention and Military Atrocities in the Philippines, 1981-1982
Task Force Detainees of the Philippines, Association of Major Religious
Superiors in the Philippines.
38
with the different international legal instruments for all extrajudicial killings’
victim, which ought to be observed. This is mainly hinged on the United Nations
which lays out the basic principles, and minimum standards here categorized as
follows: (1) Right to Life; (2) Right to Investigation; (3) Witness Protection; (4)
Chapter 3
RESEARCH METHOD
can be done through the use of numerous technical and coordinated legal rules to
groundwork for this thesis. First, to check the adequacy of domestic proceeding
provided for extrajudicial killing cases, one legal international instrument, the
criterion. A criterion was selected to meet the objective of this research which is
to identify the international guiding principles, and compare this criterion with the
To answer the problem, two model instruments are selected. Models are
SAN SEBASTIAN COLLEGE RECOLETOS-MANILA
used to determine the effectiveness of administration of justice through
Philippines with or without the international body like ICC. Thus, for the purpose
documents that identifies certain legal remedies which the extrajudicial killings’
Criminal Court, how will the extrajudicial killings’ victims be afforded with
Nations.
SANGathering
3.3 Data SEBASTIAN COLLEGE RECOLETOS-MANILA
Procedure
compare the legal rules and to provide a comparative analysis on the significance
of the authoritative legal sources wherein rules particularly the laws and
The basis for selection is primarily the relevance of the instrument to the
topic which determines the legal measure and remedies available for extrajudicial
killings’ victims. Hence, the contents of the documents were the primary basis for
selection.
41
DOMESTIC
LAWS on
INTERNATIONAL prosecuting
STANDARDS EJK
Figure 3.4. Theoretical Framework which shows the bodies of legal instruments –
discrepancy between the two, thus shows the inadequacy of domestic proceedings
42
which should afford the extrajudicial killings’ victims the rights and remedies that
affording these rights as can be culled from the review of related literature from
Chapter 2.
Chapter 4
domestic and international proceedings. Content and data analysis were employed
in summarizing the rights that these laws afford to extrajudicial killings’ victims
accordingly.
One of the critical stages in criminal law is prosecution. Thus, this section
posits the ideal prosecution which meets the international standards by the
international treaties. First, the research lays down the distinction of prosecution
process between domestic law and international law provided by the United
Nations.
domestic spheres. In the former, prosecutions were conducted not only as part of a
SAN
wider social andSEBASTIAN COLLEGE RECOLETOS-MANILA
economic rehabilitation program concerned with more than the
judicial determination of guilt and innocence of the perpetrators but was also
United Nations, the research recommends a plausible solution to address the issue
To finally provide a solution, the research proposes that the State consider
a) Theory on Investigation
The law enforcement consists of the officers and men of the PNP, the
NBI, and other agencies. 91When they learn of the commission of crimes or
which may take the form of surveillance and observation of suspects, other
otherwise);SAN SEBASTIAN
arranging COLLEGE
for entrapment; RECOLETOS-MANILA
searching premises and persons subject to
constitutional and statutory safeguards; and examining public and other available
records pertaining to the persons involved and getting copies of pertinent entries.92
The police officers, in other words, collect evidence for use in the
prosecution of the suspects in the court. This may consist of the testimony of
question-and-answer form writings and objects, e.g., gun, knife, other weapons
used in the commission of the crime, clothing of the victim, etc. Arrest suspects
91
Corpuz, M.V. The Roles and Function of the Prosecution in the Criminal Justice
System, retrieved at: https://www.unafei.or.jp/publications/ pdf/RSNo53
No5327PACorpuz.pdf
92
Id. p.272
93
Id. p.273
45
b) Theory on Prosecution
penal laws are lodged with the Department of Justice (DOJ) through its National
The prosecution process starts the moment the law enforcer, the
SAN
complainant or SEBASTIAN
public officerCOLLEGE
in charge RECOLETOS-MANILA
of the enforcement of the law alleged to
have been violated files a case against a suspected criminal.96 With such filing,
preliminary investigation will set in and the second stage in the life of a criminal
Lastly, the reparation afforded for extralegal killings’ victims and families is
generally provided under the Revised Penal Code,99 such as reparation, restitution,
98
Ibid.
99
Art. 104, Republic Act 3185, Revised Penal Code of the Philippines of 1930.
100
Art. 104. What is included in civil liability.--- The civil liability established in Articles
100, 101, 102, and 103 of this Code includes:
1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.
47
The Department of Justice, the Philippine’s principal law agency and legal
(DOJ) prosecutors have only investigated at least 76 “murder and homicide cases
It gathered from all prosecutors’ offices from July 2016 to August 2018.
The statistics exclude numbers from Manila, Quezon City, and Taguig. Of the at
SAN SEBASTIAN
least 76 investigations, COLLEGE
38 were RECOLETOS-MANILA
dismissed, five are pending before prosecutors,
evidence have already been gathered by law enforcement officers who then file
before prosecution service the relevant complaint and submit their evidence in
prosecutors do not need a complaint for them to act on it. Section 16 of DOJ
dead body is found and there is reason to believe that the death resulted from foul
play, or from the unlawful acts or omissions of other persons and such fact has
101
Gavilan, Buan, Talabong, Duterte Gov’t Allows Drug War Deaths to Go Unresolved.
Rappler. 14 January 2019. Available at: https://rappler.com/newsbreak/in-
depth/duterte-government-drug-war-deaths-unsolved
48
inform first the inquest prosecutor of these matters for the inquest prosecutor to
There are inconsistencies on the part of the police whenever they perform
their persistent claim that they are investigating each and every death
known as SAN
KianSEBASTIAN COLLEGE
delos Santos. RECOLETOS-MANILA
Judge Rodolfo Azucena Jr of Caloocan even
dismissed charges of planting of evidence against the convicted cops.102 This case
was decided in favor of the victim. All three will serve a sentence of reclusion
the family. which prompted police to review or modify their anti-drug operation
guidelines.
What can be observed in this case is that the police who investigated the
incident said that Delos Santos was killed during an anti-drug operation, after he
allegedly resisted arrest and opened fire. Camera footages, however, showed that
102
People vs. Oares, Criminal Case No. C-10295-27, November 29, 2018.
49
which is arguably less if compared to actual statistic. The current setup of the
investigations, especially with the high number of killings which have been
recorded since the start of the anti-drug campaign. Though mandated by the
With the absence of cooperation from PNP, the CHR shows that
SAN
investigation SEBASTIAN
cannot be done.COLLEGE RECOLETOS-MANILA
It is thus evident that the domestic law, as enforced
the Philippines. Since 2016, UN bodies and experts, including the UN High
Commissioner for Human Rights (UNHCR) have reported gross and systematic
Rights Council (Council).103 The Philippines has failed to “uphold the highest
Treaty Bodies, Universal Periodic Reviews (UPR)105 and Special Procedures. The
Philippines has failed to respond to communications 106 or requests for visits from
Special Procedures concerned with civil and political rights, vilified the Special
threatened the International Criminal Court (ICC) Prosecutor with arrest after she
context of the “war on drugs.”108 On 24 June 2019, the UNHCHR welcomed 109 a 7
June 2019 statement of eleven UN Special Procedures mandate holders calling for
104
United Nations. Human Rights Council: Resolution / adopted by the General
Assembly, 3 April 2006, A/RES/60/251. Available at:
http://www.refworld.org/docid/4537814814.html.
105
United Nations. Report of the Working Group on the UPR, Philippines: Addendum,
View presented by the State under review, 19 September 2017,
A/HRC/36/12/Add, para 8 (a). Available at:
https://undocs.org/en/A/HRC/36/12/Add.1
106
United Nations. Report of the Special Rapporteur on Extrajudicial, Summary Or
Arbitrary Executions, A/HRC/41/36/Add.1, para 14. Available at:
https://undocs.org/A/HRC/41/36/Add.1.
107
OHCHR. Press briefing note on Attacks/threats by States against UN human
rights experts. www.Ohchr.Org. Available at
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?
NewsID=22421&LangID=E.
108
OHCHR. Visit request by the Special Rapporteur on Human Rights. Human Rights
Defender. Available at:
https://www.ohchr.org/EN/Issues/SRHRDefenders/Pages/CountryVisits.aspx.
109
UNHRHC. Opening statement. 41st session of the Human Rights Council. 24 June
2019. Available at:
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?
NewsID=24724&LangID=E%E2%80%AC.
51
police killings in the context of the so-called war on drugs, as well as killings of
human rights defenders,” noting that UN experts had raised these concerns with
Philippines “to take all necessary measures to prevent extrajudicial killings and
mechanisms by “facilitating country visits and preventing and refraining from all
SAN SEBASTIAN
acts of intimidation COLLEGE
or retaliation.” RECOLETOS-MANILA
Resolution 41/L.20 directed the UNHCHR to
110
OHCHR, UN human rights experts call for independent probe into Philippines
violations, 7 June 2019. Available at:
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?
NewsID=24679&LangID=E.
111
Id.
112
Promotion and Protection of human rights in the Philippines, 5 July 2019. United
Nations Human Rights. A/HRC/41/L.20. Available at:
http://ap.ohchr.org/documents/E/HRC/d_res_dec/A_HRC_41_L_20.docx.
113
Tijjani Muhammad-Bande (General Assembly President) on the 75th
anniversary of the bombing of Hiroshima and Nagasaki. United Nations. United
Nations Web TV. Available at: http://webtv.un.org/search/ahrc41l.20
114
Human Rights Council, Statement by Philippines after the vote on Resolution 41/L.20.
Available at: http://webtv.un.org/search/ahrc41l.20 vote-item2-37th-meeting-41st-
regular-session-human-rights-council/6057882637001/#t=8m20s.
52
“Any probe resulting from the narrow vote for Resolution 42/L.20 will not be
began.”116 Such defiant responses to Resolution 41/L.20 demonstrate the need for
Resolution 41/L.20.117
Through the data given, there are signs of ineffective protective measure
SAN SEBASTIAN
or implementation of laws COLLEGE
to address RECOLETOS-MANILA
extrajudicial killing cases. The State’s
alleged human rights violations committed by the police or military. The State’s
national and international human rights law. In the small number of cases where
115
Teddy Locsin Jr., Probing the Killing. Twitter. 14 July 2019. Available at:
https://twitter.com/teddyboylocsin/status/1149665318165291013/.
116
Corrales, N. (2018, July). Duterte: Drug war to remain ‘relentless and
chilling.’ INQUIRER.Net. https://newsinfo.inquirer.net/1013351/duterte-drug-war-
will-be-relentless-and-chilling.
117
Id.
53
limited, and no reports are made. The number of suspects is very minimal
EJK Cases
EJK Cases
7
6 6
5
4.5
4
2
1.5
1
0
Y e a r 20 1 6 2 0 18 2020 2 0 22
number of 1.5 potential EJK cases which remain unresolved, data show that it can
118
United Nations. (2019). Annual Report of the United Nation High Commissioner for
Human Rights and reports of the office of the High Commissioner and the
Secretary-General.42nd session, Geneva. Joint written statement* submitted by
Lawyers' Rights Watch Canada, Lawyers for Lawyers, International Association
of Democratic Lawyers (IADL), nongovernmental organizations in special
consultative status, and Asian Legal Resource Centre, non-governmental
organization in general consultative status. Available at:
https://www.lrwc.org/ws/wpcontent/uploads/2019/09/Philippines.HRC42.Written.
G1924809.pdf
54
result to 6.0 number of cases in 2022. This means that there will be repetition of
the same crime resulting in a great number of gross human rights violations.
In sum, this Prosecution Game shows that no adequate remedies are given
SAN SEBASTIAN
4.3 Minnesota ProtocolCOLLEGE RECOLETOS-MANILA
on Investigation of Extralegal, Arbitrary and
Summary Execution119
which include situations where: (1) “the death may have been caused by acts or
omissions of the State, its organs or agents, or may otherwise be attributable to the
State, in violation of its duty to respect the right to life;” (2) “the death occurred
when a person was detained by, or was in the custody of, the State, its organs, or
agents;” or (3) “the death occurred where the State may have failed to meet its
SAN SEBASTIAN
what constitutes COLLEGE
an unlawful death. 121 RECOLETOS-MANILA
The Minnesota Protocol aims to protect the right to life and advances
and guidelines for States, as well as for institutions and individuals who play a
role in the investigation.122 Along with the Principles, it has been used by national,
121
Aceves, W.J., (2018) When Death Becomes Murder: A Primer on Extrajudicial Killing,
California Western School of Law. p.134
122
The Minnesota Protocol on The Investigation of Potentially Unlawful Death.
56
The Protocol outlines States’ legal obligations and common standards and
It sets out the duty of any individual involved in an investigation to observe the
including police and other investigators, medical and legal professionals and
SAN
step-by-step SEBASTIAN
handbook COLLEGE RECOLETOS-MANILA
for practitioners, it does contain detailed guidelines on key
sketches and forms for use during autopsies. States should take all appropriate
steps to incorporate Protocol standards into their domestic legal systems and to
promote its use by relevant departments and personnel, including, but not limited
to, prosecutors, defense lawyers, judges, law enforcement, prison and military
xxx
123
Id
124
Id.
57
Investigative mechanisms
xxx
38. The duty to investigate does not necessarily call for one
particular investigative mechanism in preference to another.
States may use a wide range of mechanisms consistent with
domestic law and practice, provided those mechanisms meet the
international law requirements of the duty to investigate.
Whether a police investigation, a coronial inquest, an
investigation by an independent police oversight body, an
investigation by a judge, special prosecutor or national human
rights institution, or any other investigation, complies with the
60
both international laws and domestic laws provide for valuing of dignity of every
human person and guarantees full respect for human rights. However, the
domestic laws on the right to investigation process did not provide a rule that it
must conduct an accountability process, aiming for immediate and speedy trial.
Domestic proceedings did not elaborate its investigation process nor provided a
special mechanism for serious crime like international crime. Second, as to the
witness protection, domestic proceedings did not provide for a special witness
SAN
extrajudicial SEBASTIAN
killing, COLLEGE
the possible solutionRECOLETOS-MANILA
suggested is to seek for the intervention
This section evaluates whether the ICC indeed has a capacity to reduce
serious crimes, promote greater respect for human rights, uphold peace and bring
perpetrators to justice.
Many law scholars have identified that ICC lacks the necessary
crimes under its jurisdiction. Thus, for purposes of discussion, this chapter
traditionally have scant authority. Its goal is said to be simple: to reduce egregious
Whether ICC can deter serious crimes by raising the risk of punishment,
criminal act out of fear of sanctions resulting from legal prosecution. People are
SAN
increasingly SEBASTIAN
likely COLLEGE
to be deterred from RECOLETOS-MANILA
violating the law when the chances and
the risk of more severe penalties is perceived to work via anticipated legalized,
costs associated with law violation. These channels were used as a framework that
caught and the cost of punishment, broadly understood, and whether that potential
perpetrators are aware of and can risks, costs, and benefits and update their
125
Jo, H., & Simmons, B. (2016). Can the International Criminal Court Deter Atrocity?
International Organization, 70(3), 443-475. Available at:
www.jstor.org/stable/24758127
126
Id.
127
Ibid., p.446
64
The first model that the researcher utilized is Nada Ali’s Game Theoretic
approach. She used tools of game theory to formulate propositions about the
in the field.128 Ali’s asymmetric leniency programs can be utilized in the fight
against atrocities and war crimes not just to promote deterrence but also to
event the retaliation punishment meted out by the leader for betraying the
SAN
organization is SEBASTIAN
severe, the COLLEGE
reduction RECOLETOS-MANILA
in punishment offered to cooperating
She suggests that pre-arrest bargaining may be a viable option for securing the
arrest of political spoilers. Leaders may choose to approach the Court to self-
surrender whenever the possibility of insider reporting makes regime change more
likely. The thesis, if empirically verified, suggests that ICC should refrain from
deterrence is only possible only if the court’s existence and actions raise the
the ICC’s power to investigate is dependent on State’s willingness to carry out the
ICC’s prosecutorial deterrence to the extent that it creates incentives for states to
129
strengthen their own legal capacities. Social deterrence, on the other hand,
when community norms are challenged in a clear way, i.e., ICC’s actions or
deterred from violating the law more as a result of the anticipated social response
that the likelihood of prosecution and punishment by formal legal processes. The
study shows that law violation in the presence of ICC authority crosses a fairly
interest in maintaining.
showed that when states ratify human rights treaties that require them to prosecute
violators, states are in fact more likely to hold domestic trials. Moreover, it is
possible that some states adopt ICC-statutes in their national laws without
deterrence empirical analysis, study shows that ICC interventions are powerful
because they are part of a package of efforts to rally support for ending impunity.
129
Office of the Prosecutor. 3rd Report of the Prosecutor of the International Criminal
Court to the UN Security Council Pursuant to UNSCR 14539 (2005). The Hague,
The Netherlands: ICC.
130
Grammer 2004; Kleffner 2008; and Dancy and Sikkink 2012 show that states that
ratify international treaties related to criminal responsibility, including the Rome
Statute, tend to initiate human rights prosecutions, compared with those without
such ratification. Dancy and Montai 2014 provide evidence that ICC
investigations led to more domestic human rights prosecutions and guilty verdicts
in forty-six African states between 1999 and 2011.
66
Evidence shows that the ICC’s determination to investigate and issue warrants has
At present, ICC enjoys 123 member countries. Scholars said that the court
SAN SEBASTIAN
and conducting COLLEGE RECOLETOS-MANILA
quality fact-finding but its willingness to prosecute has
a diminishing option. The evidence suggests that this role has potential to save at
least few lives in some of the most violent settings in recent decades.131
Using the model, the effectiveness of the International Criminal Court can
be measured based on how they carry out its task to resolve international crime. 132
the pending warrants of arrest, their investigations have successfully targeted state
actors.133 The ICC has prosecuted many international crimes. It is thus submitted
that this one-sided investigation and prosecution hugely impacts on the execution
131
Ibid., p.470
132
Ford, S., (2014) Complexity and Efficiency of the International Criminal Court, Emory
International Law Review. Available at: https://law.emory.edu/eilr/content/volume-
29/issue-1/articles/complexity-efficiency-international-criminal-
courts.html#section-4438cd33e814626b1cfb3832fd4d7b87
133
Uganda Army Accused of Karamoja Torture Abuses, BBC NEWS AFRICA, Aug. 17,
2010, http://www.bbc.co.uk/news/world-africa-10996764.
67
of the warrants of arrest to state actors, government officials who are perpetrators
of international crime.134 The investigation in Kenya, DRC and Sudan shows the
many challenges surrounding it.135 Thus, ICC has the potential to fight against
4.5 Summary
demonstration, a test has been made to check the potential of international court to
deterrence, it suggests that ICC has the potential to fight against atrocities and war
crimes.
134
Id.
135
Phooko, Moses Retselisitsoe (2011) "How Effective the International Criminal Court
Has Been: Evaluating the Work and Progress of the International Criminal Court,"
Notre Dame Journal of International & Comparative Law: Vol. 1: Iss. 1, Article 6.
Available at: http://scholarship.law.nd.edu/ndjicl/vol1/iss1/6
68
Chapter 5
adequately afford the extrajudicial killings’ victims the rights and safeguards that
SAN SEBASTIAN COLLEGE RECOLETOS-MANILA
they ought to be guaranteed of in conformity with international standards, with
the proposition for the negative. This chapter includes a discussion of major
governing laws and recognized principles. Finally, this study concludes with a
recommendation and discussion of the limitations of the study, areas for future
5.1 Evaluation
The adequacy of the laws which afford extrajudicial killings’ victims their
rights was examined by determining and comparing the existing international and
killing?
69
victims the rights and safeguards that they ought to be guaranteed of?
agreement?
In SAN
case SEBASTIAN COLLEGE
of inadequacy RECOLETOS-MANILA
in legislative and other measures available for
extrajudicial killings’ victims, how will they be able to receive adequate legal
remedies?
Rights (1981).
The United Nations has set international guidelines for the investigation of
Aceves, W.J., (2018) When Death Becomes Murder: A Primer on Extrajudicial Killing,
136
legal killing are: Rule on the Writ of Amparo, R.A. 9851 or the "Philippine Act
investigation mechanism.
Revised Penal Code, were consulted to compare with Minnesota Protocol. The
72
rights guaranteed per existing domestic laws are thoroughly summed to three
reparation. These are enumerated in Chapter 4 and were examined to identify the
perpetrators of the extra judicial killings. However, Human rights lawyers must be
able to prepare well the basis for the production order to ensure that specific
documentsSAN
that SEBASTIAN COLLEGE
may lead to the identity RECOLETOS-MANILA
of the perpetrator are unearthed through
amparo.137 Section 17 requires that the public official must prove “that
regularity, the respondent public officials must prove through evidence that their
acts were indeed regular rather than placing the burden of proving the
Another domestic law which deals with extrajudicial killing is the R.A
9851. It is said that this is the first national statute which defines and penalizes
namely, war crimes, genocide, and other crimes against humanity. It generally
137
Colmenares, N., June 6-10 2009. The Writ of Amparo as Mechanism to Curb impunity,
IADL Congress, Hanoi.
138
Id., p. 7
73
brings this national law into conformity with international standards as well as up-
to ably prosecute war crimes, genocide, and crimes against humanity for the
simple reason that there is no domestic law defining and penalizing these serious
international crimes. However, nowhere in the said statute did specifically define
monitoring the progress of all inventoried cases and thus not suffice the adequate
In sum, the totality of the domestic laws on investigation process did not
investigation process nor provided a special mechanism for serious crime like
extent of each category as provided in domestic laws result from the manifest
scope such as the proper enforcement and administration of these existing rules.
5.2 Recommendation
139
See discussion in (Chapter2)
75
the United Nations, or other treaty, the State needs to comply with its obligation
cannot be done within the domestic sphere alone. Considering the gravity and
the Philippine criminal justice system for extrajudicial killings cases, the
SAN SEBASTIAN
Democratic COLLEGE
Lawyers RECOLETOS-MANILA
and concerned agencies that the State should
fully cooperate with the United Nations and its Council mechanisms to
140
United Nations. (2019). Annual Report of the United Nation High Commissioner for
Human Rights and reports of the office of the High Commissioner and the
Secretary-General.42nd session, Geneva. Joint written statement* submitted by
Lawyers' Rights Watch Canada, Lawyers for Lawyers, International Association
of Democratic Lawyers (IADL), nongovernmental organizations in special
consultative status, and Asian Legal Resource Centre, non-governmental
organization in general consultative status. Available at:
https://www.lrwc.org/ws/wpcontent/uploads/2019/09/Philippines.HRC42.Written.
G1924809.pdf
Aceves, W.J., (2018) When Death Becomes Murder: A Primer on Extrajudicial Killing,
141
and should comply to international standards. The Congress should consider Anti-
EJK specifically defining and providing penalty for extrajudicial killing cases.
Furthermore, this study attempts to at least address the chasm between the
effect of prosecuting international crime with the ICC and being outside its
SAN SEBASTIAN COLLEGE RECOLETOS-MANILA
jurisdiction. The study shows that there is indeed a negative implication when the
State is a party to treaty, sans ICC. The study enumerated the following
advantages of being a State party to the ICC: a) potential decrease in the number
courts and tribunals of a duty to protect individual fundamental human rights, and
The theoretical model advanced in this thesis is that ICC should be allowed to
a crime has been committed. The researcher has developed a model which can
for extrajudicial cases by adopting a leniency program proposed by Ali and the
has jurisdiction. This crime has reported a killing of not less than 1,000
defined in Chapter 2.
complainant.
address the initial complaint filed by the government agency, such as but
and other group, thereby took no action and did not make any report, shall
SAN SEBASTIAN
Indeed, COLLEGE
laws for extrajudicial RECOLETOS-MANILA
killing may be enacted, but if there is no
continue. Data show that deaths due to extrajudicial killings are approaching
13,000 and a projected body count of 60,000 or more are to be expected at the
close of the Duterte administration in 2022, 142 thus preventing future bloodshed
142
Murdoch, L., It’s Unacceptable Children are Deemed Collateral
Damage in Duterte’s War on Drugs, Sydney Morning Herald, 2017 August
27Available at: https://www.smh.com.au/world/its-unacceptable-children-are-
deemed-collateral-damage-indutertes-war-on-drugs-20170824-gy305e.html.
79
BIBLIOGRAPHY
Primary Sources
Constitution
Administrative Order
Jurisprudence
Domestic jurisprudence
Legislative Documents
Secondary Sources
Publications
Agabin, P. (2011) Mestizo: The Story of The Philippine Legal System, University
of the Philippines, College of Law, U.P. Law Centennial Textbook
Project.
Corpuz, M.V. (n.d.) The Roles and Function of the Prosecution in the Criminal
Justice System, retrieved at:https://www.unafei.or.jp/publications
/pdf/RS_No53/No53_27PA_Corpuz.pdf
Feyter, K.D., (2005) Human Rights Social Justice in the Age of the Market,
Antwerp, Intersentia.
Human Rights Watch. (2017). License to Kill. Human Rights Watch. Available
at:https://www.hrw.org/sites/default/files/reportpdf/philippines0317
insert.pdf
Miscellaneous
Newspaper Articles
Thesis
Ali, N. (2014). The Effects and Effectiveness of the International Criminal Court:
A Game-Theoretic Analysis. University of East Anglia, UEA Law School
Social Media
Locsin Jr. T., Probing the Killing. Twitter. 14 July 2019. Available at:
https://twitter.com/teddyboylocsin/status/1149665318165291013/.
86
Annex A
SENATE
Sec. 3. Objectives. —
87
a) Define and provide penalty for acts that qualify as extrajudicial killings,
to ensure accountability of state and non-state actors.
f) Non-state actors — refer to those who are not formally part of any
agency of government but commit EJK at the behest or
acquiescence of state actors. These include paramilitary groups,
private armed groups and death squads.
g) Police intervention — refers to arrest with or without warrant, raid,
search and seizure. Seizure protocols of the NBI and the PNP, to
ensure that these embody the minimum standards for the
prevention of extra-judicial killing or its investigation.
h) State actors — refer to members of the national police or armed
forces, including government officials and employees in law
enforcement agencies or the military.
dies as a result of the police operation. Copies of the report and/or its
latest inventory of cases shall be submitted to the CHR on a quarterly
basis and shall be available whenever the CHR requests or demands it.
5) Except in cases of warrantless arrest, the arresting officers shall
document the arrest with the use of body cameras and similar devices,
which shall be immediately turned over to representatives of the Anti-
EJK Council, as provided in Section 6 of this Act.
The Council shall constitute itself within one (i) month or sooner when this law
takes effect, at the call of the Chairperson.
The CHR, with an observer status, shall participate in all meetings of the Council
for policy development and reform.
a) Develop plans and programs to achieve the objectives set forth in this law and
coordinate with member-agencies including the CHR for purposes of public
information and advocacy, policy implementation, monitoring, and reportorial;
90
b) Engage with human rights mechanisms here and abroad, including Mandate
Holders, and Special Procedures of human rights organizations for purposes of
developing or strengthening cooperation in the areas of human rights education,
law enforcement, investigation, and access to justice;
d) Function as a clearing house for investigation modules, arrest, search and Sec.
8. Secretariat to the Council. — There shall be a Secretariat to the Council which
shall be headed by an Executive Director to be appointed by the Secretary of
Justice from the list of nominees of the Council.
Sec. 9. Prohibited Acts. — It shall be unlawful for state actors to resort to EJK as
herein defined in furtherance of campaign for public order or in the enforcement
of laws. Killings perpetrated by non-state actors and paramilitary groups in
furtheranceSAN
or SEBASTIAN
in support ofCOLLEGE RECOLETOS-MANILA
government campaign for public order is also
unlawful and prohibited. The Anti-EJK Council shall establish programs and
promulgate measures to ensure that non-state actors who committed EJK are
brought to justice.
Sec.12. Penalty. The penalty of life imprisonment without the benefit of parole
shall be imposed upon any public officer, person in authority, agent of a person in
authority, or private individual found guilty of EJK as defined herein. Public
officials who fail to prevent, investigate, or file necessary actions in court against
those suspected of having committed EJK shall be administratively liable
according to applicable laws.
Sec. 13. Imprescriptibility. — The prosecution for EJK shall not prescribe.
91
Sec. 14. Compensation for Victims. - The family of the victim of EJK shall have
the right to claim for compensation as provided for under Republic Act No. 7309
or "An Act Creating A Board of Claims Under the Department of Justice for
Victims of Unjust Imprisonment or Detention and Victims of Violent Crimes and
For Other Purposes." Provided, that in no case shall compensation be any lower
than Ten Thousand Pesos (P10,000.00).
Sec. 15. Implementing Rules and Regulations. - Within ninety (90) days from the
effectivity of this Act, the Council shall finalize and promulgate the rules and
regulations for the effective implementation of this Act.
Sec. 16. Separability Clause. - If for any reason, a provision is declared invalid,
other provisions not affected thereby shall remain in full force and effect.
Sec.17. Repealing Clause. - All laws, decrees, executive orders, rules and
regulations contrary to or inconsistent with the provisions of this Act are hereby
repealed orSAN SEBASTIAN
modified COLLEGE RECOLETOS-MANILA
accordingly.
Sec. 18. Effectivity. - This Act shall take effect fifteen (15) days after its
publication in the Official Gazette or in two (2) newspapers of general circulation.
Approved,
92
Annex B
Republic of the Philippines
HOUSE OF REPRESENTATIVES
Quezon City
her affairs or to otherwise act on his or her behalf; (iv) a family member or
relative of the human rights defender up to fourth degree of consanguinity
or affinity, and includes common law relations; (v) a group,
association, organization, community or network, whether formal or
informal, with which the human rights defender is associated; (vi) or the
home, property or possessions of the human rights defender or any of the
other persons or entities in items (ii) to (vi).
CHAPTER II
Everyone has the right, individually and in association with others, to promote
SAN
and to strive forSEBASTIAN COLLEGE
the protection RECOLETOS-MANILA
and realization of human rights and fundamental
freedoms at the local, national, regional and international levels.
(1) Everyone, individually or in association with others, has the right to solicit,
receive and utilize resources, from domestic and international organizations,
including governmental, intergovernmental, philanthropic and private sources, for
the express purpose of promoting and striving for the protection and realization of
human rights and fundamental freedoms.
(2) In pursuance of the right in subsection (1), subject to the provisions of existing
laws and consistent with provisions of this Act, freezing, sequestration or seizure
by any bank or financial institution of the fund solicited from and released by the
source is hereby prohibited.
a. To know, seek, access, obtain, receive and hold information about all human
rights and fundamental freedoms, including information regarding how these
rights and freedoms are given effect in the legislative, judicial and administrative
systems;
b. To know, seek access, obtain, receive and hold such information from
business enterprises and other private actors as may be necessary for
exercising or protecting, or assisting to exercise or protect human rights or
fundamental freedoms;
c. To freely publish, impart or disseminate to others views, information and
knowledge on all human rights and fundamental freedoms;
d. To study, discuss, form and hold opinions on the observance, both in law
and in practice, of all human rights and fundamental freedoms and,
through these and other means, to draw public attention to these matters.
(2) The right in subsection (1) may be exercised orally, in writing, in print, in the
form of artSAN SEBASTIAN
or through COLLEGE
any other RECOLETOS-MANILA
media, whether online or offline.
(2) A person whose rights have been violated or who has been adversely affected
by a breach of obligations has the right to obtain such effective remedy and full
reparation from the appropriate government agency or court of competent
jurisdiction.
(3) A complaint with the competent court or tribunal relating to the violation of
rights under a breach of obligations under Chapter III of this Act may be filed by
the following:
However, the consent of the victim must first be obtained as much as possible. In
the absence of such consent, the human rights organization or association may
proceed with filing the complaint or petition unless the lack or absence of consent
is based on the threat to the life, liberty or security of the victim or his or her
family.
SAN SEBASTIAN COLLEGE RECOLETOS-MANILA
SEC. 23. Limitation on the Rights of Human Rights Defenders. - In
exercising the rights in Chapter II of this Act, a human rights defender,
individually or in association with others, shall be subject only to limitations that
are prescribed by law, in accordance with international human rights obligations
and standards, are reasonable, necessary and proportionate, and are solely for the
purpose of securing due recognition of and respect for the human rights and
fundamental freedoms of others and meeting the reasonable requirements of
public order and general welfare in a democratic society.
CHAPTER III
SEC. 24. Obligation to Respect, Promote, Protect, and Fulfill the Rights
of Human
human rights and fundamental freedoms in Chapter II of this Act are effectively
guaranteed and
protected; (2) that all laws, policies and programs of government are consistent
with the rights in
101
Chapter II of this Act; and (3) that human rights defenders are able to undertake
their activities and
— Public authorities shall take all necessary measures to ensure the prevention of,
and protection from any intimidation or reprisal by any other public or private
actor. These shall include protection measures established under pertinent laws.
(2) Public authorities shall immediately expunge or rectify such labeling as part of
the non-monetary reparation to victims referred to in Section 22 (2) of Chapter II
and Section 34 of Chapter III of this Act.
CHAPTER IV
(5) The Committee shall organize itself within thirty (30) days from the
completion of the selection process of the Chairperson and Members of the
Committee as herein provided in Subsection (1), and shall thereafter organize its
Secretariat.
(2) Of known independence in making decisions and taking stances on issues and
concerns pertaining to the protection and promotion of human rights and
fundamental freedoms;
SAN SEBASTIAN COLLEGE RECOLETOS-MANILA
(3) Must have a deep, thorough and enlightened knowledge and understanding of
human rights and fundamental freedoms and the role, work, and protection needs
of human rights defenders; and
(4) At least two (2) members, including the Chairperson must be members of the
Philippine Bar, who have been engaged in the practice of law for at least seven (7)
years.
SEC. 45. Training and Vetting. — All persons involved in the work and
activities of the Committee, including security and law enforcement officials,
shall be appropriately vetted and shall receive training on human rights and
fundamental freedoms, the situation and protection needs of human rights
defenders prior to the commencement of the involvement, and continuing training
designed to ensure full and effective implementation of the Act.
CHAPTER V
PENALTIES
SEC. 48. Penalty for Any Other Violations of this Act — The penalty of
prison mayor in its minimum period or a fine of One hundred thousand pesos
(Php 100, 000.00) or both, at the discretion of the court, shall be imposed upon
any individual who violates any other provisions of this Act.
SAN SEBASTIAN COLLEGE RECOLETOS-MANILA
SEC. 48. Violations of this Act as Aggravating Circumstances. - Any
violation of any provision of this Act committed during the commission of a
crime defined in any penal laws shall be considered an aggravating circumstance
in the imposition of the penalty in said crime.
CHAPTER VI
FINAL PROVISIONS
SEC. 50. Implementing Rules and Regulations. - (1) Within sixty (60)
days from the effectivity of this Act, the Commission on Human Rights, Member
of the House Committee on Human Rights, Member of the Senate Committee on
Justice and Human Rights, in consultation with PAHRA, Karapatan, FLAG, and
NUPL, and other human rights organizations and individual human rights
defenders of known probity, shall jointly promulgate the Implementing Rules and
Regulations (IRR) for the effective implementation of this Act and shall ensure
the full dissemination of the Act and the IRR to the public.
h. Risks and challenges faced by women and lesbians, gays, bisexuals and
transgenders (LGBT) human rights defenders and those working on women's and
LGBT rights and gender issues demand special attention.
j. Open access to the United Nations and international human rights bodies
contributes to a safe and enabling environment for human rights defenders to
work in.
SEC. 53. Separability Clause. If for any reason any part or provision of
this Act is declared unconstitutional or invalid, the other parts or provisions
hereof which are not affected thereby shall remain and continue to be in full force
and effect.
SEC. 54. Repealing Clause. — All laws, decrees, executive orders, rules
and regulations and other issuances or parts thereof, inconsistent with the
provisions of this Act are hereby repealed, amended or modified accordingly.
SEC. 55. Effectivity Clause. - This Act shall take effect fifteen (15) days
after its publication in the Official Gazette, or in a newspaper of general
circulation.
CURRICULUM VITAE
I. EDUCATIONAL ATTAINMENT