AGUILAR, Krystalynne F.

December 4, 2019
2018890203 Human Rights Law

Human Rights: A Failing Commodity

Human Rights in the Philippines is becoming more and more of a loose

concept. After the incumbent President Rodrigo “Roa” Duterte’s assumption
to office, “human rights” has been the outcry of several rallies and protests.
Duterte championed his “War and Drugs” and this was sensationalized in the
country which appealed and favored a specific sector in the society, the
middle-class. I remember vividly his resounding speech during his campaign;
his very words were, “If elected president, give me about three to six months,
I will get rid of corruption, drugs and criminality.” Fast forward to three years
later, corruption is still rampant, the crime rate is at an all-time high and the
drug problem is far from extinguishable. During the first few months of his
“War on Drugs” the body count was becoming more and more alarming each
passing day which furthered the conspiracy that the police were given
“quotas” each day to purport their faithful execution of their job to the public.
The term extrajudicial killings flooded the headlines of the biggest newspaper
publications, names of grown men, teenagers and even children comprised the
body count. According to the administration, the government’s anti-drug
policy is anchored on “national survival” and “accountability of those who
bring the nation to the precipice of destruction.” We are now in 2019 and the
President has expressed his disappointment that he could not eradicate the
country’s drug problem and now even taunted Vice President Leni Robredo
to spearhead his “War on Drugs.”
It is quite apparent that the President has no regard of human rights as
well as due process of law. On the eve of his May 9, 2016 election victory,
Duterte told a crowd of more than 300,000: “If I make it to the presidential
palace I will do just what I did as mayor. You drug pushers, holdup men, and
do-nothings, you better get out because I'll kill you.” “Nanlaban” has been the
term widely used by policemen to justify their killings. They’ll nonchalantly
claim that they only quelled the aggression on the part of the suspect and only
acted by way of self-defense in their part. Notwithstanding this barbaric and
gruesome act sanctioned by the President, the campaign is widely supported
by Filipinos. An independent survey in September 2017 shows 88% of
Filipinos support the Drug War. In 2019, it remains elevated at 82%. More
surprisingly, the number of Duterte apologists remained in huge numbers.
This blatant disregard of human rights by the highest official of the State gives
you an idea as to why the mindset of his countrymen is shaped that way.
In the recent May 2019 senatorial elections, no opposition had
successfully infiltrated any of the twelve seats in the Senate. This favored
Duterte increasingly for his power and influence in the Congress was as sturdy
as steel. With no opposition in check, Duterte is now enjoying the tightest grip
on the Filipino nation that any president has enjoyed since the late President
Marcos. The late dictator was the most notorious human rights violator before
Duterte. During Martial Law, torture was a natural phenomenon,
disappearances was a common thing. Torture during martial law also came in
non-physical forms. Chua noted that the regime also inflicted psychological
and emotional torture to "shake one’s principle." This is done through solitary
confinement and isolation. Some reported mental torture by threats of
imminent death, rape, and harm to their families. Stories of sexual abuse were
also prevalent inside detention centers. Women were stripped naked, made to
sit on ice blocks, stand in cold rooms, and raped and sexually assaulted using
objects such as eggplants smeared with chili peppers (Hapal, 2017). This time
around, we are served breakfast by the headlines of the body count of the
extrajudicial killings in compliance with the administration’s avowed drug
war.
Kian Delos Santos, a name the country could never forget. Kian was
merely 17 years old at the time he was killed. He was suspected as a drug
runner and was cornered and was eventually shot to death. The police claim
he resisted capture, but evidence showed the contrary. A CCTV footage
showed Delos Santos was dragged by two men before he was found dead.
Kian’s death fueled several human rights movements all over the country. The
Commission on Human Rights called out Duterte’s “war on drugs” for the
killings lacked due process and human decency. In 2017, Duterte delivered
his State of the Nation Address, he sideswiped the Commission on Human
Rights (CHR). He threatened to abolish the said Commission.
The CHR is the oldest NHRI in Southeast Asia, created and enshrined
in the 1987 constitution following the People Power revolution that ousted the
Marcos dictatorship. If the oldest NHRI in the region, one that is
constitutionally enshrined, can be so vulnerable to the threat of abolishment,
this is a warning siren that cannot be ignored in a region with increasingly
authoritarian leaders looking to adopt similar policies to Duterte’s war on
drugs. Tough choices need to be made to fight back. Those who care about
defending human rights have to admit two things. First, Duterte has succeeded
to a significant degree in making human rights a dirty word, lacing it with his
anti-Western and anti-imperialist rhetoric. According to him, the concept of
human rights is to blame for protecting the drug lords and causing the
country’s other problems. Second, Duterte has faced neither a strong enough,
nor a large enough opposition to his crusade against human rights. This second
admission is a bitter pill to swallow. Many Filipino and international human
rights groups have fought hard in the past year to reclaim the political space
that the human rights agenda works within (Smith, 2018). Duterte’s iron-clad
administration garnered a huge condemnation not only from the local scene
but from international organizations. Public outcry was instigated by the
recent killing of a 3-year old victim who was merely caught up in the fiasco
(Human Rights Watch, 2019).
In March, Duterte announced that the Philippines would withdraw from
the International Criminal Court (ICC) “effective immediately” in response to
the ICC’s move in February to launch a preliminary examination of “drug
war” killings to determine whether to open a full-blown investigation. Duterte
sought to silence his critics via various means. His most prominent critic,
Senator Leila de Lima, remained in detention on politically motivated drug
charges. In May, the Philippine Supreme Court took unprecedented action to
remove Chief Justice Maria Lourdes Sereno, apparent reprisal for her
criticism of Duterte’s “drug war” and other abusive policies. In September,
Duterte revoked the amnesty given to Senator Antonio Trillanes IV, another
Duterte critic, by the previous administration for leading mutinies in 2003 and
2007 when he was a naval officer; in October, a Manila court denied a
Department of Justice petition to issue a warrant for his arrest. In November,
in a rare triumph of accountability in the Philippines, a Manila court found
three police officers guilty for the murder of 17-year-old Kian delos Santos in
August 2017. The killing, which was caught on surveillance camera, sparked
outrage against the “drug war” (ibid).
The Rome Statute of the International Criminal Court (often referred to
as the International Criminal Court Statute or the Rome Statute) is the treaty
that established the International Criminal Court (ICC). The Rome Statute
covers four core international crimes: genocide, crimes against humanity, war
crimes, and the crime of aggression. Chief prosecutor Fetou Bensouda already
declared that the ICC would be closely monitoring incitements for mass
murder. Duterte has expressed his intention to withdraw from the ICC for this
very reason. He can be held liable under the doctrine of command
responsibility. As commander-in-chief, President Duterte can be held liable
under Section 10 (Responsibility of Superiors) of RA 9851. It provides that
“a superior shall be criminally responsible as a principal for such crimes
committed by subordinates under his/her effective command and control, or
effective authority and control as the case may be, as a result of his/her failure
to properly exercise control over such subordinates, where:
(a) That superior either knew or, owing to the circumstances at the time,
should have known that the subordinates were committing or about to commit
such crimes;
(b) That superior failed to take all necessary and reasonable measures
within his/her power to prevent or repress their commission or to submit the
matter to the competent authorities for investigation and prosecution”
(Caparas, 2017).

According to the Philippine Supreme Court in the Boac v. Cadapan en

banc decision dated May 31, 2011, RA 9851 enunciated “command
responsibility as a form of criminal complicity in crimes against international
humanitarian law, genocide and other crimes.” In this case, the Supreme Court
underscored, “It bears stressing that command responsibility is properly a
form of criminal complicity, and thus a substantive rule that points to criminal
or administrative liability” (ibid).
Although by virtue of being a state party to the International Criminal
Court, Duterte can be held liable, said treaty admits of several lapses that blurs
the possibility of conviction of Duterte during his incumbency. The provision
on Provisional Arrest of the Rome Statute is vague as it lacked the specifics
regarding the time to make the arrest and the qualifications surrounding the
arrest. Article 92 merely states that:
1. In urgent cases, the Court may request the provisional arrest of the person sought,
pending presentation of the request for surrender and the documents supporting the
request as specified in article 91.

There are no procedure or qualifications that were laid down in order

to determine when or how provisional arrest can be made. With this gray area,
Duterte is still at the seat of power and human rights and basic human decency
is at his mercy. One would think that since Duterte was formerly an attorney,
he should know due process of law however this is proven to be an
impossibility because he is still undertaking extreme measures to stop drugs
by the only way he thinks to be the most successful.
The status of our Human Rights can be said to be imputable to President
Duterte. His iron-clad governance has greatly influenced the state of our
human rights today.
The Philippine human rights situation is not however limited to the issue of
extrajudicial killings and disappearances. The country faces problems
related to its political, economic, social and cultural conditions that breed
many more human rights problems (HURights Osaka, 2010).

Although the issue of extrajudicial killings and enforced

disappearances traces way back even before President Duterte’s assumption
to office, it is undeniable that these cases ballooned during his incumbency.
In a public speech, he even said at point blank that he did not care about human
rights and expressly gave shoot-to-kill orders to the policemen. This utter
disregard to humanity placed him in a bad light in international communities
and are in direct violation of several treaties such as the Universal Declaration
of Human Rights to which our country is a signatory.

Effective March of this year, the country has officially withdrawn from
the International Criminal Court, after the country’s highest court declined to
overrule President Rodrigo Duterte’s decision to leave the world’s only
permanent war crimes tribunal. Although Duterte has announced said
withdrawal in 2018, under the court rules, it is only to take effect within 12
months. The court has been conducting a preliminary inquiry into accusations
that Mr. Duterte and other Philippine officials committed mass murder and
crimes against humanity in the course of the drug crackdown. That inquiry
stemmed from a complaint filed by a Filipino lawyer representing two men
who said they had been assassins for Mr. Duterte in Davao, the southern city
where Mr. Duterte became mayor in the late 1980s. A second complaint was
filed in August by relatives of eight people killed by police officers in the drug
war; they also accused Mr. Duterte of murder. In their Supreme Court motion,
the rights activists said that withdrawing from the court would deprive
Filipinos of “effective remedies” against genocide and other crimes against
humanity. The petitioners argued that “those who kill with impunity will only
be further emboldened.” When Mr. Duterte took office in 2016, he vowed to
end the scourge of drugs and dump the bodies of slain addicts and dealers in
Manila Bay. Over 5,000 people have been killed by the police in what are
often described as drug raids. Rights groups say many more have been killed
by unofficial militias (Gutierrez, 2019).

Aside from this, President Duterte threatened to cut off relations with
Iceland when the 48-member UNHRC adopted an Iceland resolution, which
urged the human rights body to investigate alleged violations of human rights
in the Philippines amid the killings linked to the Duterte administration’s war
on drugs. Also an offshoot of the withdrawal from the ICC, he recently
threatened the country’s withdrawal from the United Nations. Under the UN
membership, Duterte can be sanctioned from the lapses and impunities rooted
from his drug war.

Article 3 of UDHR “Everyone has the right to life, liberty and security of
the person.”
Article 9 of UDHR “No one shall be subjected to arbitrary arrest, detention
or exile.”
Article 9 (1) of ICCPR “Everyone has the right to liberty and security of
person. No one shall be subjected to arbitrary arrest or detention. No one
shall be deprived of his liberty except on such grounds and in accordance
with such procedure as are established by law.”

The above-mentioned articles were transgressed by the President in his

recent controversy regarding his order to arrest vape users even without a law
punishing it. It was also unclear how this will be implemented such as whether
the PNP will also arrest vape users who get their nicotine fix in allotted
smoking areas. This is in violation of the UDDHR and the Constitutional
mandate against arbitrary detention. Following the legal doctrine in criminal
law, Nullum crimen sine lege which means there is no crime when there’s no
law punishing it. If this were to be carried out, those who are to be arrested
will suffer imprisonment without just cause this is in direct constraint with
their liberty. This also amounts to abuse of power, with the president’s abuse
of his authority, its delirious effects are experienced from minute to large-
scale changes. The human rights situation in our country is an ecosystem, the
issues branch out from one another and so would result to a domino-effect
once one has been violated or neglected. As a result of these extrajudicial
killings, the human rights of the prisoners as well as the poor is equally
violated. Extrajudicial killings is deeply associated with poverty or should I
say, it is utterly anti-poor. Those who cannot avail of the services of an
attorney are not afforded due process and are killed on the spot and are only
be said to have fought the police as a justification of the police brutality. A
great number of those who fell victim to Duterte’s drug war or those who
comprise that body count are those who belong to the poorest regions in our
country. 44% of those killed by assailants were killed on the street or alley
while 23% of those killed in police ops were killed in or near a house. The
research indicated the jobs of only around 15.7 percent of the victims but it
showed that most of them were poor. Two-hundred twenty three (223) of the
victims--whose jobs were identified in the study--were either tricycle,
pedicab, or jeepney drivers, barkers, construction workers, vendors, farmers,
or garbage collectors. There were also 38 victims who were reported as
unemployed. The research also showed 130 local government officials—
mostly barangay level—and 127 uniformed personnel killed in the drug war.
"Based on their place of residence or their occupation, it is clear that most of
the victims were poor," the research noted. Of the 1,149 people alleged to be
in drug watch list, 50% were killed by unknown assailants and 46% in police
ops. Authors of study raise questions as to veracity and who has access to drug
watch lists (Quintos, 2018).

One of the trademarks of the ‘war on drugs’ is the release of drug watch
lists. These are lists of names of individuals alleged to be involved in the drug
trade. In February 2018 for example, the Philippine National Police (PNP)
released 11,000 names which, according to them, was validated by the
agency’s Directorate for Intelligence (DI). These watch lists are questionable
because the methods in coming up with the lists have been arbitrary, not
evidence-based, and at times, dictated by the whims or caprices of authorities
at the local level. Armed with these dubious lists, police authorities then visit
those in the watch list to convince them to stop their drug use or involvement
in the drug trade and to surrender to the authorities. According to the Ateneo
Policy Center, 22.9% of the EJK cases reported online involved persons who
were also known to be in the local watch lists. Police operations and under
police custody – Police operations, including serving of warrants and sweep
searches, constitute lethal and non-lethal activities of police forces. Under
PhilRights’ documentation, alleged EJKs are categorized as ‘having occurred
during police operations’ if:
 a) Police authorities, whether in official uniform or not, introduce
themselves as such during the course of the operation
b) The police authorities acknowledge (to the media or in official
records) that the incident was a police operation

Incidents involving such directly allege the police officers who

conducted the operations as the perpetrators. Interestingly, there are
contradictions between what the police reports state and what the families say
about the conduct of the operations. For example, a case may be reported as a
buy-bust operation while the family would assert that the police entered their
house without any warrant or sufficient acceptable cause except to kill their
target.

Operations believed to be conducted by the police as alleged by our

informants – Apart from police operations, many killings were also committed
under operations by unidentifiable perpetrators believed to be police officers
as alleged by the informants. The informants, being the witnesses themselves,
claim that the perpetrators are police officers based on their physical attributes
and on the witnesses/informants’ familiarity with police authorities operating
within their communities.
Operations conducted by unidentifiable assailants and riding-in-tandems
assassins – Another group of perpetrators involves vigilantes and killers
riding in tandem. The perpetrators of these cases are usually masked and
dressed in black or dark-colored clothing. There are also non-police
perpetrators who wear civilian clothes and/or do not hide their faces. The
alarming surge in the occurrence of such operations, especially those that have
been conducted against those suspected of involvement in drugs, has led most
informants to conclude that these unidentifiable killers could be working
under the auspices of the government (PhilRights, 2018).

From the foregoing, it can easily be said that even the implementation
of the Oplan: Tokhang is problematic. According to the above-stated
statistics, some of the victims were killed by unknown assailants. Not only
were the constitutional rights of these victims were violated, the act of singling
them out was also tainted with impropriety. The so-called hit list was not even
evidence-based, it was arbitrary to say the least. Going back with the concept
of domino effect, in killing one victim, you deprive a family of a father,
mother, sister or a brother. Killing of a father would mean depriving a family
of their financial support. One thing leads to another and that is the very
danger why a lot of human rights advocates seek to put to a stop.

Right to Health
One of the most palpable consequences of extrajudicial killings is its impact
on the overall health of the families left behind. All those interviewed were
one in saying that the killings have had a direct adverse effect on both the
physical and psychological health of the members of the family. Of particular
concern is the immediate and long-term psychological impact on the children
and other family members of victims, especially those who witnessed the
actual killings. One interesting insight dealt with how the killings have
affected even the reproductive health choices of young people who opted to
marry at a young age as a way of dealing with their situation.

Right to Education
Another consequence of extrajudicial killings is the impact on the education
of children. With the sudden loss of parents or family members who used to
support their studies, some children had to quit school temporarily while
others were forced to stop schooling altogether.

Right to Livelihood
With the heads of the family or the economically productive members of the
family mostly being the victims of extrajudicial killings, the capacity of the
family to address even its most basic needs become compromised. In turn, this
has a direct consequence on the family’s ability to meet their minimum
nutritional needs, support the continued schooling of their children, and have
the capacity to pay their regular utility bills.

Right to Shelter
Shelter is one of our most basic needs. Everyone has a fundamental human
right to housing which ensures access to a safe, secure, habitable, and
affordable home with freedom from forced eviction. Right to shelter has
always been a thorny issue among urban poor communities as well as for
families living in relocation sites. These are the same demographic groups that
are most affected by extrajudicial killings.

Indeed, human rights violations occurring in the context of this false

war can be described as systemic, coordinated, sequential, and
comprehensive. The brutality of killings have sent shockwaves that
reverberate across sectors and geographies. The systemic effects of these
violations have helped create a climate of fear, resulting in social paralysis.
Many victims and families have been kept silent, by choice or by desperate
circumstances, thereby depriving the public of a full understanding of the
scope and breadth of violations. This, in turn, has paved the way for the
unimpeded adoption of more anti-human rights and anti-democractic policies.
The violations appear to be coordinated among these institutions of State
power, resulting in interrelated violations that are made possible either by
alleged outright collusion of other government agencies and local government
units and officials or by looking the other way so that these violations can
continue. The violations can be described as sequential in that an initial
violation, by way of an extrajudicial killing, for example, subsequently
exposes the family left behind to a host of other violations of their civil and
political rights (CPR) and economic, social, and cultural rights (ESCR). The
violations can be described as comprehensive given that the many interrelated
CPR and ESCR violations have effects that manifest across most, if not all
members of the family left behind, often also unfolding over time to
worsening degrees, especially if without the intervention of civil society
organizations, religious organizations, and other support groups (PhilRights,
2019).

The human rights situation in the Philippines is at a stand still especially

when during the incumbency of the President, he cannot be held liable to these
acts of impunity. The Rome Statute is vague as to the grounds of provisional
arrest of the heads of states as well as when it could be implemented. This
lapse defeats the very purpose of said provision which means that at this point
of time, Duterte can tiptoe around said treaty until a fully comprehensive and
exhaustive provision has been produced. Until then, there is no concrete way
to arrest Duterte which is institutionalized by the advent of the country’s
withdrawal from the International Criminal Court.
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