Extrajudicial killings: Police self-

defense?
The government's over-emphasis on the right of the person with the gun over the
right to life and due process of presumed innocent civilians can easily be abused
and misused

Joy Aceron
Published 2:06 PM, August 06, 2016
Updated 2:06 PM, August 06, 2016

Based on a research being conducted by a major media company, about 770

Filipinos have already died allegedly due to the Duterte administration's "War
Against Drugs." As of May 2, at least 470 were killed in police operations.
One of those killed is Jefferson Bunuan, a 20-year old criminology scholar of a
foundation. The said foundation later on protested the killing of its scholar, who it
said is neither a drug pusher nor a user.

The justification for these high number of killings committed by police authorities,
which include Jefferson, is "self defense." There is only one storyline common to
all the killings: the targets tried to fight back when the police was about to arrest
them, so the police had no choice but to defend themselves.

This raises the question of legitimacy. Are these killings, premised on the police's
right to self-defense, acceptable given the legal-institutional framework of the
country?
The question of legitimacy is beyond legal. Legitimacy involves the design and
substantive content of a country's overall legal-institutional framework that is
defined and accepted in the course of a country's political history. It can also be
referred to as the "political consensus" over a period of time on what is
permissible in a given polity following the laws of the land.

Operationalizing self-defense

The Philippine National Police (PNP) is invoking provisions in the Revised Penal
Code of the Philippines (RPC) to justify their use of self-defense in the anti-drug
campaigns. The RPC provides justifying circumstances that do not incur criminal
liability (Article 11). These are as follows:

 Unlawful aggression
 Reasonable necessity of the means employed to prevent or repel it
 Lack of sufficient provocation on the part of the person defending himself

Only when a person acts in defense of his person or rights under these
circumstances that the person will not incur criminal liability.

The immediate question is whether the operations being conducted by the police
on its anti-drug campaign that comes with a threat from the President himself
delivered on national TV is not by itself a sufficient provocation.

In the operations that resulted to killings, were all the possible means to repel
any form of aggression and resistance explored? Were these circumstances
present in the case of the killing of Jefferson Bunuan?

Limits in the use of force

Our legal-institutional framework under the 1987 Constitution is a democratic

state under a civilian rule. It gives primacy to human rights and limits the powers
of the state through checks-and-balances.

All our laws, hence, especially those that are security-related or that involve the
use of force and violence, are to be implemented following our broader legal
institutional framework that (1) observes human rights, (2) assumes one is
innocent until proven guilty (right to due process), and (3) defers to political and
democratic processes over violent or armed means.
Image by Raffy De Guzman / Rappler

This, then, indicates that in a police operation, for instance, maximum tolerance
must be observed and the use of violence shall only be a last resort to neutralize
the suspect (not to kill them). This means that the force to be used by the
authorities in a police operation involving civilian suspect must commensurate (or
must be even lesser than) the provocation.

Section 11 of the RPC on self-defense is clear on this.

Again, this is because innocence is presumed in our laws and due process is
non-negotiable. The police are supposed to be the protectors of the citizens, not
their assailant. That is the pledge of honor a police officer takes.

Limits fortified by history

Such consensus on limiting the powers of the police (and military) became even
stronger in post-EDSA 1 Philippines given the excesses of police and military
during the Martial Law years that resulted to numerous human rights violations.

In recent years, human rights have been mainstreamed in the security sector
with human rights education becoming part of the trainings being required to
police and military officers. Human rights are also incorporated in the operational
procedures manual of the police and the military.

Further, our legal-institutional framework is clear in giving primacy to the right to

life. Given the strong influence of Christian faith in what is legal in the country,
the state is expected to give the highest regard to life.

This is affirmed by the abolition of the death penalty in the country in 2006. The
absence of death penalty in our legal system means that the power of the state is
limited by the right to life.

The right to life is not for the government to take for any reason. It is the person's
inalienable right not only as a Filipino, but as a human being. This also gives the
mandate to the international community to protect and defend the life of citizens
under governments that threaten persons' right to life.

Dangers in contesting the limits

As evidenced by the high incidence of killings (the highest recorded in post-

Martial Law Philippines) and the framing of the defense of these killings in less
than 3 months, the way the RPC is being implemented and operationalized in
Duterte's anti-drug campaign points to a pretext different from what is the
historically-defined boundaries of the country's institutional-legal framework.

The restraint to the use of violence is not being emphasized. The right of the
police to self defense over the right of civilian to due process and the right of the
state to enforce its will over the right to life of citizens are becoming the preferred
framing.

The seeming lack of priority given to the investigation of the killing of Jefferson,
despite the protests, also indicates that the government is taking Jefferson's
death as a permissible "collateral damage" to its war on drugs, a clear break-
away from what is expected from authorities in the past.

The government's over-emphasis on the right of the person with the gun (the
police) over the right to life and due process of presumed innocent civilians can
easily be abused and misused. The staggering number of people already dead
due to anti-drug police operations is an indication of that.
Those holding instruments of violence are supposedly subject to relatively more
controls because in a given context, a gun itself could be the absolute power
over another person's life.

This is the basic idea behind the principle that civilian authority is superior over
military or security forces in a democracy, why institutional processes or political
solution is preferred over violent means and why the right to life is inalienable or
beyond any state authority.

The Duterte administration is pushing the boundaries of what is the legal-

institutional in this country using force and mass propaganda. However, we are -
and remain - a government of law and not of men; and beyond power, there is
truth and history behind the democratic gains that hold this country together. -
Rappler.com

Joy Aceron is Program Director at Ateneo School of Government directing

Political Democracy and Reforms (PODER) and Government Watch (G-Watch),
programs that aim to contribute to the deepening of democracy in the country.