Determination of

Crimes Involving
Extralegal Killings and
Enforced
Disappearances
BY: Prosecutor Lilian Doris S. Alejo

REPORTERS (GROUP 8)
Mary Jaefredeen Rigor
Chelsea Mae Gomez
Kenneth Villanueva
Aiverlyn Teofilo
Celina Marie Santos
This Topic was delivered at the Multi-Sectoral and Skills-Building Seminar Workshop on Human
Rights Issues: Extralegal Killings and Enforced Disappearances (Seventh Judicial Region, Batch 1)
held on August 7–8, 2008, at the Marco Polo Plaza Cebu, Cebu City. Transcribed. Pros. Lilian Doris
A. Alejo was appointed Senior State Prosecutor at the Department of Justice (DOJ) on April 6, 2004.
Ten years prior to this, she was State Prosecutor from March 16, 1994, to November 1998; and State
Prosecutor II from December 1998 to April 2000. Before her stint as a Prosecutor, she served as a
Public Attorney in the Special and Appealed Cases Division of the Public Attorney’s Office (PAO)
and as a Legal Officer in the Legal and Evaluation Division (LED) of the National Bureau of
Investigation (NBI). As an active child advocate, Pros. Alejo has organized several seminars on child
protection for the Special Committee for the Protection of Children. She has also served as facilitator,
reactor, resource person and lecturer in seminars and workshops on women and children, and as
participant in various seminars here and abroad. Pros. Alejo earned her Bachelor of Arts in
Philosophy and Bachelor of Laws degrees at the University of Santo Tomas. She passed the bar
exams in 1985. Pros. Alejo is, at present, Vice Chairperson of the Department of Justice Task Force
on Extrajudicial Killings.
This session deals with how prosecutors determine, theoretically, extrajudicial or extralegal killings.
According to Hon. Justice Lucas P. Bersamin, political killings’ are characterized by the political
affiliation of the victims, the method of attack, or involvement or acquiescence of state agents in their
commission. The definition is more or less focused on the identity of the victims.
As described by Prof. Cristina J. Montiel of the Department of Psychology of the Ateneo de Manila
University, extralegal killings are:
a. physical punishments without the permission of a court or legal authority;
b. politically motivated, i.e., the victims are usually punished for punishedpunished their political
beliefs and behaviors; and
c. carried out in the context of protracted war, with the more powerful group (State) hitting the less
powerful group or threat to the State.
The definition of enforced disappearances by the International Convention for the Protection of All
Persons as defined in Article 2 is: the arrest, detention, abduction or any other form of deprivation of
liberty by agents of the State or by persons or a group of persons acting with authorization, support, or
acquiescence of the State, followed by a refusal to acknowledge a deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared person, which places such a person outside
the protection of the law.
Now, these are international instruments but the prosecutor works within the framework of our local
laws, specifically, the Revised Penal Code (RPC). The Department of Justice (DOJ) in its Department
Order No. 841, dated October 10, 2007, states that: extrajudicial killings shall refer to cases where the
suspects or perpetrators are members of the military, police, and other law enforcement agencies. By
this definition, the DOJ focuses on the perpetrators only. What we are saying is this technically, if the
offender is not a law enforcer the DOJ will not label it as an extrajudicial killing (EJK) or extralegal
killing (ELK). In the absence of a special law to that effect, we have to work within this parameter.
Earlier, Department Order No. 257, dated March 27, 2007, created a Task Force on Human Rights
and Extrajudicial Killings. The Department of Justice Central Office issued Office Order No. 63,
dated March 27, 2007, addressed to all regional state prosecutors to create a group of state prosecutors
to handle cases of human rights violations and extrajudicial killings. Later on, Department Order No.
451, dated June 18, 2007, created a Task Force Against Media Harassment which covers all victims
who are media practitioners. At this juncture, in the absence of a special law on extralegal killings, we
are left with no choice but to apply the provisions of the Revised Penal Code that classify such crime
as murder. We simply file cases of murder and kidnapping because we usually do not go to courts
invoking violations of international instruments. We have to work within the parameters of the
Revised Penal Code. Recently, the Office of the President (OP) gave us a list submitted by Task Force
Usig and by non-governmental organizations (NGOs) like the Karapatan, and the Asian Federation
Against Involuntary Disappearances (AFAD). Allegedly, these are cases of extralegal killings.
As a Vice Chair of the Task Force on Extrajudicial Killings, she was surprised to see that some of the
cases were robbery with homicide and robbery per se, which is highly amazing. Usually one gets
cases of kidnapping and murder. I wish to point out that murder, under the RPC, more or less covers
extralegal killings already.
Article 248 of the RPC states: ARTICLE 248.
Murder. – Any person, who, not falling – within the provisions of Article 246 shall kill another shall
be guilty of murder and shall be punished by reclusion perpetua to death if committed with any of the
following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing
means to weaken the defense or of means or persons to insure or afford impunity.
2. In consideration of a price, reward or promise.
3. By means or inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or
assault upon a railroad, fall of an airship, or by means of motor vehicles, or with the use of any other
means involving great waste and ruin.
4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake,
eruption of a volcano, destructive cyclone, epidemic or other public calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or
scoffing at his person or corpse. (As amended by RA No. 7659).
Murder under Article 248 of the RPC is an unlawful killing of another with any of the attendant
circumstances enumerated DETERMINATION OF CRIMES INVOLVING 161 EXTRALEGAL
KILLINGS AND ENFORCED DISAPPEARANCES 2008] therein. Treachery, of course is when
somebody kills another, taking into account that the perpetrator can escape, and then in consideration
of a prize, reward or promise. One will never know why these people are killed by means of
inundation, fire, shipwreck, stranding of a vessel, derailment or assault upon a railroad, falling off an
airship or off any motor vehicles; or under circumstances bringing about great waste and ruin caused
by any of the calamities enumerated; or by an earthquake, the eruption of a volcano, manmade
destructive cyclone, an epidemic or any other public calamity, sometimes with evident premeditation
and with deliberate cruelty by inhumanely augmenting the suffering of the victim or outraging or
scoffing at his person or corpse. That is already amended by Republic Act No. 7659, the Law on
Heinous Crimes.
As to Kidnapping, Article 267 of the Revised Penal Code also more or less covers enforced
disappearances. It states:
ARTICLE 267.Kidnapping and serious ille Kidnapping and serious illegal detention. – Any private
individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall
suffer the penalty of reclusion perpetua to death:
1. If the kidnapping or detention shall have lasted more than three days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or
if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents,
female or a public officer.
THE PHILJA JUDICIAL JOURNAL - The elements of course include the offender being a private
individual, because if the offender is a public officer, the crime is arbitrary detention where the officer
detains another or in any other manner deprives the victim of his liberty. The act of detention must be
illegal if the kidnapping or detention lasts for more than three days; or committed simulating public
authority; or inflicting serious physical injuries; or threats to kill are made, or the person kidnapped or
detained is a minor, female, or a public officer. So more or less looking at the provisions of the
Revised Penal Code, we can see that the elements of the ELK under the various international
instruments are already there. Here, as in reports given to us by the Office of the President, the
offenses are murder, attempted and frustrated; robbery with homicide, is questionable, robbery,
kidnapping, and physical injuries.
There is appropriate punishment, of course, provided for by the Revised Penal Code and by special
laws especially Republic Act No. 7659, the Law on Heinous Crimes. The challenges to prosecution
include forensic capability and technology which is not yet sufficiently developed or utilized so that
the prosecution depends so much on witnesses. In my more than 13 years of being a prosecutor, I
have not seen any scene of the crime investigation report. I have seen police reports, transmittal letters
to the prosecutor, post-mortem examination reports, autopsy reports. I have only seen a description of
a dead person inside a morgue as stated in the report of the police, but never a report of the scene of
the crime, for example, where bullets were found on the scene of the crime. I am sure none of the
prosecutors have seen a specific SOCO report either; I mean, the technical one. So that is why we
depend so much on witnesses. We have deoxyribonucleic acid (DNA) testing, here in the Philippines
but no specific DNA report made by the police or the investigator.
And because we depend so much on witnesses, we have difficulty when the witnesses refuse to come
forward or are unwilling to cooperate for fear of reprisal. We also have difficulty because of
ineffective investigations. I do not know why sometimes the investigations are so inefficient or
lacking. Of course, the element of corruption is also another factor; allegedly, the perpetrators are
from the military or police personnel. How will they fairly investigate their comrades or their
colleagues? That is a problem for the prosecutor. Then there is the serious intimidation of witnesses
and apparent lack of an effective witness protection program. Other difficulties are offers of financial
compensation to victim’s family which lead to settlement of the case and eventually to desistance; and
lack of positive identification of the perpetrator by the witnesses, which in effect results to lack of
having someone to indict. The absence of a special law aggravates the problem of prosecutors. Law
enforcers have different definitions of the concept of ELK from the NGOs, that is why we do not have
the same statistics.
Percentage of EJK/ELK Cases Per Region

Region VII – ELK Cases

Thus, the absence of a special law, has made the concept of ELK dependent on the application by
individual prosecutors concerned. The norm is to consider it as murder, arbitrary detention, or
kidnapping.