From the perspective of President Duterte and his advisers, there’s probably no better time than now to determine what else he can do, or how far he can go, as president of this country. Declaring martial law in Mindanao is his way of testing the outer limits of his political prerogatives. This course of action, as I’ll try to show, will put a stress on political legitimacy rather than on strict legality—on what the people appear to be willing to accept, rather than on what the law says.

Our current political milieu, I’m afraid, favors the populist language of willful leadership, of final solutions to festering problems, and of abiding trust in those who are prepared to break the rules in order to destroy the status quo once and for all. Accordingly, it sees the legal system as the last refuge of a dysfunctional Establishment. It regards all assertions of individual freedoms, and of civil and political rights, as selfish, mistaken, unpatriotic, and delusional.

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The detested “Establishment” includes everything and everyone Mr. Duterte and his followers have mocked since the 2016 electoral campaign: the political oligarchy led by the Aquinos that came to power after Edsa 1, the business elites that benefited from and supported the latter, the Catholic bishops, the mainstream media, the Western press, the global advocates of democracy and civil liberties, the United States, the European Union, and the United Nations.

As a legal instrument in the hands of the chief executive, martial law itself is no longer what it used to be. The framers of the 1987 Constitution essentially stripped it of extraordinary powers by explicitly subjecting it to review by coequal branches of the state, namely the legislature and the judiciary.

But, as a political concept, ML draws its considerable sting not so much from its constitutional basis as from the remembrance of its past uses and abuses—its rationalization as a tool of last resort, memories of the unspeakable brutality it brought out among its enforcers, and the enduring terror it instilled in our people.

Was it a coincidence that the very first thing Mr. Duterte conjured after announcing ML in Mindanao was the image of martial law under Marcos? That, instead of assuring ordinary Filipinos of the continuing protection of their liberties in the face of a perceived threat against the state, he chose to warn them that he will be “harsh”? Hardly.

Speaking to the troops in Iligan City on May 26, three days after declaring ML in Mindanao, he said: “I am here to say to you, fight and I will pray for you, and I will answer for everything. Wag na kayo magalala. (Don’t worry.) During martial law, your commanders, you, can arrest any person, search any house, wala nang (no need for a) warrant.”

I am not a lawyer but, as far as I know, the 1987 Constitution does not give the President such powers under martial law. Nor does it free soldiers and police officers who act illegally—whether on orders of their superiors or not—from criminal liability. Martial law does not suspend the Bill of Rights, nor does it replace civilian courts with military courts. It obligates the President to report to Congress, and the latter to assess ML’s factual basis.

We have been assured that the guidelines issued by the Armed Forces of the Philippines are more mindful of the restrictive provisions of the new Constitution. Still, I am alarmed by the AFP spokesperson’s warning that they reserve the right to “censure” (sic) published material and restrict the freedom of expression. I don’t think the law allows them.

But, this is nothing compared to the way Mr. Duterte himself talks about martial law powers. Ironically, his portrayal of ML powers stands in sharp contrast to the careful legalistic language in which the 1972 proclamation of martial law is couched. Unlike Marcos, Mr. Duterte doesn’t seem to care what the rest of the world thinks. Who will dare check him if the Filipino public thinks he’s doing the right thing? Every opinion survey seems to confirm his continuing popularity, almost as if the public has given him blanket approval for every cause he chooses to champion.

He has sufficiently intimidated the Church, the mainstream media, the political opposition, and the business community. He has tamed the police and the military, charmed the armed Left by inviting its nominees to sit in the Cabinet while they resume peace talks, and silenced the organized Moro liberation groups by dangling the prospect of concluding a peace agreement with them. As the US and the West signal their gradual disengagement from world affairs in the face of their own domestic problems, Mr. Duterte basks in his newfound friendship with the powerful rulers of China and Russia.

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What better time, indeed, can there be for a Filipino autocrat to measure the metes and bounds of his actual powers?

It is wonderful to hear Ombudsman Conchita Carpio Morales, Chief Justice Maria Lourdes Sereno, and Justice Antonio Carpio speak up boldly on crucial issues of law. But, as influential as they may be, their voices constitute only a small particle in a still evolving legal system. And, as I said, the prevailing political climate is not exactly hospitable to legal arguments. What is to be done?

Let Congress and the high court debate the justification for martial law. But, as citizens of this republic, let us not waste our breaths supplying the reasons for why we need martial law. That is how we get accustomed to losing our freedoms. Let us remain focused instead on what we need to do to defend what remains of our democracy.

public.lives@gmail.com

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