Human Rights and Extrajudicial Killings in the Philippines: A Note on the Arroyo Government (2001-2007)

July 2007 is an eventful month for human rights in the Philippines under the Arroyo government. First, after a great deal of debate and delay, an anti-terrorism law or officially known as Human Security Act (Republic Act 9372) has finally been passed. Critics of the new law say that it is subject to the abuse of the government and therefore would lead to more human rights violations. The government, on the other hand, believes that the new law would strengthen the institutions like the courts and police in protecting the human rights of the citizens against terror. Second, just a day after the passage of the Human Security Act into law, a two-day National Consultative Summit on Extrajudicial Killings and Enforced Disappearances: Searching for Solutions was held under the initiative of the Supreme Court and was participated in by stakeholders and duty-bearers of human rights. Third, a concurrent two-day summit of the Association of Southeast Asian Nations (ASEAN) on human rights to look into the creation of a regional human rights commission was also held in Manila. With these events, human rights and security have again taken center stage among the concerns and considerations for our path and vision of the common future of the country, region, and even of the world. Fourth, the State of the Nation Address (SONA) of the president merely mentioned sparingly the state of human rights especially extrajudicial killings. She just urged the Congress to enact laws, but was short of commanding the military and police to stop the killings and other human rights violations.

It would be noted that 48 member-states of the United Nations (UN) including the Philippines ratified the Universal Declaration of Human Rights (UDHR) in 1948. In his book, International Standards and Agreements on Human Rights and Humanitarian Law, Reynaldo Ty (1989) defines a declaration as “a formal statement which refers to the common standard of achievement” (p. 3). Being a declaration, it is not legally binding but it sets a common reference to human rights among the signatories and, in fact, has gained, over time, international acceptance and status as standards against which either compliance or violation of the provisions in the declaration is monitored.

Signatories of the declaration recognize that these standards impose obligations, duties and commitments on them to comply and enforce in their respective territorial state. Donnely (2003), the author of In Defense of the Universal Declaration Model, points out that the states have become the “new exclusive instrument for implementing internationally recognized human rights” (p. 40). In other words, the practice of human rights heavily relies on the political, economic, and cultural dynamics of a certain state. This monism follows the generally accepted principle that the enforcement of human rights is in the hands of the states (Ty, 1989).

Although in principle the declaration is not legally binding, the Philippine state through the doctrine of incorporation has adopted the declaration as part of the law of the land (Ty, 1989). The Philippine Constitution of 1987 expressly states this incorporation in Article II, Section 2; “The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.”

Furthermore, being a signatory of the declaration makes its adoption and incorporation into the national laws more compelling and valid. However, being a signatory does not necessarily guarantee and translate into full compliance and enforcement. Thus, can being a signatory to the declaration make a difference in the protection and respect of human rights?

In his article, Do International Human Rights Treaties Improve Respect for Human Rights, Neumayer (2005) finds out that “the beneficial effect of ratification of human rights treaties is typically conditional on the extent of democracy and the strength of civil society groups as measured by participation in non-government organizations (NGOs) with international linkages”(p. 926). He concluded that the ratification might not have any effect or might even lead to further human rights violations without democratic spaces and presence of strong civil society.

This paper looks at the case of the present Philippine government, as a signatory to the declaration, and how it performs in the field of human rights particularly with regard to the spate of extrajudicial killings by revisiting the reports of Melo commission and UN-designated Special Rapporteur, Philip Alston, on extrajudicial, summary or arbitrary executions. Then, the paper proceeds with a discussion on the effect of ratifying an internationally-accepted declaration on the Philippine government in the hope of an end to the killings.

Extrajudicial killings under the Arroyo government

The Philippine government recently has been under intense local and international criticisms for the unabated extrajudicial killings of mostly activists and journalists since Gloria Macapagal-Arroyo ascended to power in 2001. On its 1983 report about Political Killings by Governments, Amnesty International (AI), an international organization that works for the protection of human rights, defines extrajudicial killings as those killings “committed outside the judicial process and in violation of national laws and international standards forbidding the arbitrary deprivation of life” (pp. 5-6). It would be recalled that only in June 2006 that the Philippines repealed its death penalty law. Therefore prior to June 2006, the Philippine government had judicial killings sanctioned by the death penalty law of the state. The extrajudicial killings referred to by AI are also alternatively called political killings because they are deliberate and directed to neutralize or silence opposition members. To substantiate its allegation on the rising extrajudicial killings, AI (2006) documented 51 extrajudicial killings in the Philippines for the first six months of 2006 and 66 killings in the whole of 2005. It estimated that for the whole year of 2006, the numbers of killings ranged from at least 61 to 96 incidents. This disturbing high number of killings in 2006 could be attributed to the Arroyo government’s February 16, 2006 -declaration of an all-out war against the New People’s Army (NPA), the armed wing of the Communist Party of the Philippines. Moreover, on February 22, 2007, a news report from the online edition of The Independent, a newspaper in United Kingdom, revealed that according to a local human rights group, Karapatan, at least 832 people were either killed or declared missing since Arroyo assumed the presidency in 2001. In the weekly Philippine Daily Inquirer’s (PDI) Talk of the Town for July 22, 2007, it quoted Karapatan’s last count of extrajudicial killings which is currently pegged at 863 deaths. These killings captured headlines and international attention in 2005 and 2006 when successive and patterned killings and disappearances of unarmed activists and non-combatants known to be critical of the Arroyo government were reported.

The same 1983 AI report on political killings by government, drawing from the 1982 International Conference on Extrajudicial Executions in the Netherlands, identified the “preconditions” or indicators of political killings and other human rights violations by governments. These possible preconditions are “the imposition of a state of emergency, martial law, or other states of exception; the occurrence of other human rights violations such as irregular arrests and detentions, ‘disappearances’ and torture; the identification of certain groups as ‘enemies;’ claims of ‘encounters’ with armed groups resulting in deaths” (p. 103). Prophetic as the report might be, these preconditions or indicators of the killings existed in 2006.

Incidentally, these extrajudicial killings occurred when the Arroyo government was seriously challenged by a broad coalition of anti-government forces which included some military personnel, recently-resigned cabinet secretaries, former president, sitting senate president, a number of Catholic bishops, and the influential Makati Business Club over the wiretapped conversation of Arroyo and a Commission on Election (COMELEC) commissioner named Garcillano at the height of counting of votes in the 2004 presidential election. The taped conversation which is now known as “Hello Garci” revealed the alleged large-scale manipulation of votes in certain parts of Mindanao in favor of Arroyo. As a result, the Arroyo government was hounded by a legitimacy issue which it avoided to confront and address in both legal and informal processes such as an impeachment proceeding and interviews. This unresolved charge of cheating in the election contributed to its plummeting popularity. In the Social Weather Station’s (SWS) survey of Arroyo’s net satisfaction ratings, double-digit negative net ratings were registered in the whole two years of 2005 and 2006 with negative 33 as the lowest ever satisfaction rating given to a president in the post-Marcos era. In fact, only Arroyo has posted negative ratings in the SWS survey among the presidents, from Aquino to Arroyo. These negative ratings could be the most telling proof of the unpopularity and dissatisfaction of the people on the president.

Previous governments, from Aquino to Estrada, also had a history of extrajudicial killing or “salvaging” during their terms. Muyot (1992) talked about the human rights in the Philippines during the Corazon Aquino government (1986-1992) which was responsible for the restoration of democratic structures after the fall of the authoritarian regime by Marcos. Yet there were 167 cases of salvaging as reported by the Task Force Detainees of the Philippines (TFDP) during the entire Aquino’s term. In the first year of Fidel Ramos government (1992-1998) with which victory was questioned while having the smallest plurality of votes in the Philippine electoral history, the 1993 human rights report of the Philippine Human Rights Information Center (PhilRights) documented 61 salvaging cases. Ramos, a military man and former chief of the Armed Forces of the Philippines (AFP), was endorsed by Aquino, who had experienced nine coup attempts in her term, to succeed her. In 1998, Joseph Estrada was popularly elected by 11 million Filippinos, more than double of his closest rival. On the Estrada government’s last year before EDSA Dos, the PhilRights (2001), citing report from TFDP, pointed to the “extrajudicial killings in the form of salvaging continued to haunt the populace with 8 identified cases of salvaging, all without reports of arrests” (p. 39). Then, EDSA Dos, another people power revolution that ousted Estrada from office due to alleged massive corruption and unexplained wealth, happened where Arroyo as the vice-president of Estrada assumed office in 2001.

There seems to be a relationship between legitimacy and human rights record. Donnely (2003) concedes that “political legitimacy is increasingly judged by and expressed in terms of internationally-recognized human rights” (p. 23). Although the legitimacy issue of Arroyo government stems from its alleged cheating in the 2004 election, the extrajudicial killings and other acts inimical to human rights further erode and put under question its political legitimacy to govern in the eyes of both national and international constituencies. In the report of AI (1983), Political Killings by Governments, most governments that committed these killings were struggling and having problems with legitimacy issues in their own countries.

Dark days that were 2006

In its effort to hold on to power despite its growing unpopularity and legitimacy issue as narrated in the running account by the online PDI, the Arroyo government issued controversial executive and administrative orders, and proclamations which were later found by the Supreme Court as unconstitutional. One of which is Proclamation No. 1017 which put the whole country into a state of emergency by which the AFP was mandated to suppress lawless violence. This proclamation was issued in February 2006 after the Arroyo government had allegedly discovered the collusion among elements of the broad spectrum of the political actors – from extreme left (communists) to extreme right (disgruntled soldiers) and in between a sector of civil society and middle ground forces – to topple the government. With Proclamation No. 1017, the Arroyo government undertook actions which further eroded its human rights record down the sink. It raided and closed down one national newspaper, issued a prescribed guideline and standard for media practitioners in reporting the news, had the six leftist party-list representatives arrested without preliminary investigation on the charge of rebellion, and arrested a former cabinet secretary and her group for organizing a public assembly without a permit. It was at this time when the government banned protests and demonstrations and in the process, undermining the country’s democratic values of free speech and citizens’ right to assembly and express their sentiments and grievances. Then, the killings and disappearances started to be reported in the news. Many people likened those dark days and the present circumstances similar to the Marcos dictatorial years. The impression sent to the people by these blatant violations of human rights particularly the killings and disappearances is that there is a price to be paid for being vigilant and assertive of rights.

The victims as “enemies of the state” (Melo Commission report)

To denounce this growing impression, the Arroyo government, as posted on its website, officially created an independent commission under Administrative Order (AO) 157 on August 21, 2006 to investigate these extrajudicial killings. A retired justice of the Supreme Court, Jose Melo, headed the commission with the National Bureau of Investigation (NBI) director, chief state prosecutor, an academician from University of the Philippines, a lawyer, and a Catholic bishop as members. Many critics and skeptics of the Melo commission pointed out that the commission would find itself in a bind because all members of the commission were handpicked by the government which is charged of masterminding these killings. Citing the impartiality, credibility and effectiveness problems the commission needs to address to be able to perform its mandate, families of the victims and even the survivors decided to boycott the proceedings.

For a time, the Melo commission report was unavailable to the public. The government which received the report and was keeping it had said that the report was incomplete and unfinished to be released to the public. However, after strong public pressure, the government finally released the report to the media.

The investigation revealed that the victims of these killings who were mostly activists and journalists were often tagged as “enemies of the state” by the elements of the military. There was no hard evidence though directly implicating the military establishment having an official policy sanctioning the extrajudicial killings. However, it was found out that there were some rogue officers in the military who endorsed these killings.

The commission, on its official report as posted on the website, reminded the government that “in a democratic and civilized state such as ours, one must uphold and observe the rule of law, the principles of justice, and the system and rules of how it is dispensed – from investigation to arrest, to inquest, and to trial” (p. 2). In other words, extrajudicial killings are not to be sanctioned and tolerated. The commission also clarified the concept of command responsibility. The concept does not only apply to the acts authorized and known by the superiors, rather it also includes the instances when the superior fails to stop and investigate the acts committed by his/her subordinates.

In short, the Melo commission acknowledged the increasing number of the killings of people who were classified to be “enemies of the state” and the culpability of some rogue elements in the military who perpetrated and sanctioned these killings.

“Order of Battle” against groups and individuals (Alston report)

The spate of extrajudicial killings in the Philippines has raised alarm and concern in the international community including the UN, European Union, United States, and Japan. At the invitation of the Arroyo government, Philip Alston, a Special Rapporteur of the UN on extrajudicial killings, visited the Philippines and conducted his own investigation from February 12-21, 2007. On his preliminary note for the UN General Assembly-Human Rights Council on March 22, 2007 which is available on the internet, Alston acknowledged a number of “institutional response at the national level,” such as the creation of Melo commission, Task Force Usig, special courts tasked to hear and try cases of extrajudicial killings, Presidential Human Rights Committee as distinct from the Commission on Human Rights (CHR), and the augmentation of fund of the CHR to better handle cases of the killings.

Similar to the Melo report, Alston also characterized the killings as product of tagging the victims as enemies of the state. He also mentioned about a leaked copy of a document signed by senior military and police officials describing the “order of battle” drawn by the AFP against groups and individuals who were to be neutralized.

Moreover, Alston pointed out why the responses made by the Arroyo government to mitigate these human rights violations were ineffective, and sometimes of little use because of the accountability problem which could have checked the abuses of authorities. For example, the executive branch of the government limited the performance of the legislative branch in its oversight function in the execution of laws by the military by requiring those invited to the legislative inquiry to ask permission from the president through the executive secretary. And normally, permission is not granted except for budget hearings. Likewise stated on Alston’s preliminary note, another example is that there seems to be “a passivity, bordering on an abdication of responsibility, which affects the way in which key institutions and actors approach their responsibilities in relation to such human rights concerns” (p. 5).

Among his recommendations to address these killings and halt the further killings of activists are the termination of military officers from issuing public statements that relate groups or individuals to the armed struggle waged by the Communist Party of the Philippines – New People’s Army (CPP-NPA), restoration and respect of the oversight function of the Congress, and the call for the Supreme Court to make use of its “constitutional powers over the practice of law” to remind the prosecutors of their duty to the public to respect and protect human rights and to speed up the investigations and cases involving the killings. The last recommendation was realized when a summit on extrajudicial killings was conducted under the initiative of the Supreme Court.

Conclusion

As a signatory to the UDHR, the Philippines has accepted the obligations, duties and commitments that the declaration entails. States that ratified it and are strong in respecting human rights and other international organizations that are concerned with human rights have put pressure on the Philippine government to abide by the principles of the declaration which are fundamental to living as human beings. Signatories or parties to an agreement “generally aspire to comply in the spirit of ‘pacta sunt servanda’ (agreements are to be kept and honored)” (Neumayer, 2005, p. 928). When there are grave human rights violations anywhere in the world, “the community for protecting human rights seems to be becoming the society of states” (Donnely, 2003, p. 41). In this so-called society of states, there are states more than equal than the others. In short, among the sovereign states, the powerful ones have leverage over the weaker ones in terms of trade, aid, labor migration, investment, and among other things. Donnely (2003) noted that the international immunity that sovereign states used to enjoy has been undermined by unrelenting and strong pressures and demands from the powerful states over the weaker ones.

Examples of these pressures and demands from the powerful states are the actions of the United States (US), European Union (EU), and Japan. According to the official website of the United States Senate, its Committee on Foreign Relations held a hearing on Extrajudicial Killings in the Philippines: Strategies to End the Violence on March 14, 2007. The EU Ambassador to Manila, Alistair MacDonald, made a comment that the Arroyo government is “not doing enough on killings amid outcry” after an EU assessment team finished its mission to look how EU could help solve the killings, as quoted in the Channel News Asia website on June 30, 2007. The Asian Human Rights Commission (AHRC), on its website on January 16, 2007, lauded the appeal of a group of 14 Japanese non-government organizations (NGOs) to Japanese Prime Minister Shinzo Abe to act more on the extrajudicial killings in the Philippines than just speaking about the killings with the Arroyo government when the Prime Minister visited the Philippines. Some of the influential international organizations that raised concerns about the killings in the Philippines are the AI, New York-based Human Rights Watch, and AHRC. As fellow signatories, powerful EU countries, US, and Japan continuously put pressure on the Arroyo government that led to the creation of Melo commission and invitation of UN Special Rapporteur by the Arroyo government to look into and shed light to these killings.

These pressures were borne out of the lobbies and advocacy campaigns of the civil society groups with effective networks globally which brought the extrajudicial killings to the attention of the international community. Neumayer (2005) earlier indicated that the positive impact of human rights treaties depends on the kind of democracy and participation and effectiveness of civil society with international linkages. Philippine democracy as measured in terms of press freedom and independence of judiciary is vibrant, particularly in the judiciary where policies of the Arroyo government that hampered and infringed human rights were found to be unconstitutional by the Supreme Court. Ferrer (1997), in the book Civil Society Making Civil Society, describes the Philippines “as a strong civil society type” because of the participation of NGOs in the significant part of the country’s history like the two EDSA revolutions (p. 1). The two criteria cited by Neumayer, extent of democracy and strong and active civil society, are both present and dynamic in the Philippines. Clearly, these positive signs give hope for an end to the killings.

Aside from these factors, the declaration of the Arroyo government, as posted on its website, that its last three years in power will be for “legacy-building” phase is welcome and good news for human rights advocates. Certainly, the government does not want to be remembered for the human rights violations and extrajudicial killings. As the president said in the 2007 SONA taken from the inquirer’s website, “We must wipe this stain from our democratic record.” Vulnerably, the people will have to believe and take those words from the president who has the power to stop the extrajudicial killings and, at the same time, has a recent history of taking back her own words. God bless the Philippines!