Philippine President Rodrigo Duterte’s rhetoric toward the US has vacillated in recent months, swerving between outright rebuke, tepid conciliation, and, after Donald Trump’s election, affection.
Amid that zigzag, Duterte has also flirted with altering central tenants of the rule of law in his country: habeas corpus and martial law.
Deadly violence in the Philippines has increased since Duterte took office on June 30, when he launched the crackdown on drugs and the drug trade he had promised throughout his campaign.
Official records put the number of dead in official police operations at about 2,500, while other estimates put the total number well above 4,000.
In early August, after being criticised for his war on drugs by the country’s chief justice, Maria Lourdes Sereno, Duterte asked if Sereno would rather he declare martial law.
In early September, Duterte put the country “under state of lawless violence” after a nighttime bombing at a market in his hometown of Davao City. The president said the declaration would increase military and police presence around the country to address terror threats as well as to support his campaign against drugs and combat the spike in extrajudicial killings.
The next day, an administration official said Duterte had mulled a declaration of martial law immediately after the bombing, put ultimately “decided that is was not necessary.” Unlike martial law, the lawlessness declaration has no expiration date, and it remains in effect.
About two weeks after that declaration, Duterte said that even though he thought the drug trade had seeped into the government bureaucracy and local administrative leaders (barangay captains) had gotten involved narcotics, he did not want to declare of martial law in relation to the war on drugs
In early October, however, Duterte appeared to waffle.
During a speech in which he apologised to a Jewish community for comparing himself to Hitler, the Philippine president said, “There are 6,000 barangay captains doing their own thing, manufacturing shabu. How am I supposed to deal with — sometimes I am tempted really to declare martial law.”
Duterte said he had been told that martial law was “not feasible,” and that he had settled a declaring a state of lawlessness instead.
He again broached possible extraordinary legal measures this month. On November 12, he said he may suspend the writ of habeas corpus — which gives an arrestee the right to contest their detention before a court — in the southern province of Mindanao if lawlessness there doesn’t relent.
He went on to say the country was in “narcopolitics” and that his powers were limited to bring all those involved in drugs to account, but did say he could “declare a suspension of the writ of habeas corpus” in order to pick up those responsible for lawlessness.
A senator who met with Duterte after that speech said he thought the president “was not seriously considering suspending” habeas corpus, calling it “just a passing thought.”
But on Wednesday, Duterte again referenced martial law as an option in his anti-drug campaign.
In response to concerns that the potential suspension of habeas corpus could lead to martial law, Duterte said, “I am not a fan of martial law … But if ever, martial law is a contingency to meet widespread violence.” (That was just a day after he said human-rights consideration would go out the window if ISIS became active in the Philippines.)
Duterte has sent mixed signals about his attitude toward martial law and the rule of law in general for some time.
In March, when then-President Benigno Aquino said Duterte’s campaign promises would put him a step away from being dictator, Duterte defended himself by invoking his mother, an activist who protested during a period of martial law declared by dictator Ferdinand Marcos.
“The president forgot that my mother was one of the 3 or 4 or 5 marching down the streets of Davao during martial law,” Duterte said. “So I will dishonor the memory of my mother by following the person she helped put down? The president is exaggerating.”
But Duterte did say during his campaign that he would govern “like” a dictator, in that he would work to bring discipline and order back to the country. And his election and policies appear to fit with a regional trend in governance referred to as “democracy against disorder.”
“What is distinctive about democracy against disorder is that it emphasises order over law, yet its proponents seek legitimation through elections rather than through some alternative method of achieving political power,” writes Cornell professor Thomas Pepinsky.
Though, Pepinsky writes, democracy against disorder doesn’t necessarily seek to abrogate democratic procedures, like elections, “it does threaten freedom, civil liberties, and popular representation.”
Duterte has repeatedly said he would avoid declaring martial law.
But his repeated references to his country’s drug-driven crisis seem to have laid a rhetorical basis for such a declaration. He has already said he wanted “a little extension of maybe another six months” to pursue his narcotics crackdown.
Duterte heaped criticism on the US until Trump’s election brought about a change in tune. There may yet be some development that ends his avoidance of martial law as well.
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