When the exception becomes the rule

Solicitor General Jose Calida, the government’s lead counsel in the Supreme Court hearings on the validity of imposing martial law in Mindanao, has taken the interesting view that Proclamation 216 does not give the President additional powers beyond the right to call out the troops. As my fellow columnist, Oscar Franklin Tan, pointed out in a short piece he recently wrote for the Inquirer online, this admission practically makes the cases before the high court moot.

Why declare martial law if it serves no legal purpose? Solgen Calida argued that while technically there’s no difference between the calling out power and martial law, the latter carries a bit more drama. He said: “It’s like a sentence; instead of a period, there’s an exclamation point. It’s psychological, an exclamation point—you better listen to me now because I imposed martial law.” Changing metaphors, he further characterized martial law as “the calling out power on steroids.”

Calida has convinced himself that Proclamation 216 is so harmless that, at one point during the hearings, he admonished Justice Antonio Carpio to help assure the public that there’s really nothing to worry about in the President’s declaration of ML in Mindanao. But that’s not the impression one gets when one listens to his principal. On May 26, three days after declaring ML in Mindanao, Mr. Duterte told the troops in Iligan City: “During martial law, your commanders, you, can arrest any person, search any house, wala  nang  (no need for a) warrant.”

Maybe the President was exaggerating, and, as his spokesmen have explained a number of times, he didn’t mean what he actually said. But the impact of such statements on those who are charged with enforcing martial law on the ground cannot be underestimated. As the sociologist W.I. Thomas famously warned, “when men define their situations as real, they tend to be real in their consequences.”

People who have not read the 1987 Constitution’s restrictive provisions on ML may have no understanding of this coercive instrument apart from what they went through, or heard, under the Marcos martial law regime. Accordingly, they might quietly submit to any form of abuse if it’s done in the name of martial law. They would not be aware that, when the framers of the 1987 Constitution rewrote the ML provisions in the light of what happened during the Marcos regime, they virtually nullified martial law as a tool of exceptional state powers.

So long as the argument remains at the level of the law, therefore, there is simply no way Solgen Calida can argue these cases for his client except by conceding that a martial law declaration confers no additional constitutional powers on the president.

But, this is not the concept of ML that evolved in political and legal theory. Martial law powers emerged in the context of war, when the very survival of the state itself necessitated the use of extraordinary powers and the suspension of normal liberties and individual rights. The widespread nature of lawlessness prompted the sovereign to take drastic measures that in normal times would be subject to strict regulation.  Like all state powers, the power to declare martial law could be abused. A state of emergency could be concocted, expanded, or prolonged beyond what is necessary. This is what the power to review and to revoke given to Congress and the Supreme Court by the 1987 Constitution seeks to prevent.

But, these days, what worries political theorists like Giorgio Agamben is not so much the abuse of martial law powers as the normalization of a state of emergency without a formal declaration of the need for special powers. Here, the executive invokes public safety to justify adopting “a paradigm of security as the normal technique of government”  (G. Agamben, “State of Exception,” 2005). There is a whole branch of political theory that deals with what is called the normalization of this “state of exception” — when, on the pretext of protecting the public, the state effectively suspends normal legal processes, strips human beings of their normal legal and political rights, and anything becomes possible.

In this regard, it is important to remind ourselves that, as the war in Marawi rages and the entire city is reduced to ruins, we have barely noticed that the killings in the long-running war on drugs have continued unabated in the rest of the country. Dead bodies bearing the telltale marks of vigilante-style execution continue to pile up on our streets. There are easily more casualties in the war on drugs than in the Marawi war. Yet, the level of public alarm over the drug-related killings seems to have waned, as though the nation has finally reconciled itself to their necessity and inevitability.

Without minimizing the senseless loss of innocent lives and the forced displacement of hundreds of thousands of Marawi residents, one cannot help noticing how the formal declaration of martial law has quickly catalyzed the formation of a civil liberties movement and triggered the filing of cases challenging ML. In contrast, the attention paid to the routine violation of rights in the ongoing war on drugs seems to grow less by the day.

We have great reason to be vigilant when the government invokes the need for extraordinary powers in order to deal with emergency situations. But we should worry even more when, without having to invoke special powers, the state routinizes the use of violence and coercive means in dealing with social problems like drugs, and the public falls silent.