On March 30, the Chamber of Deputies approved the draft of the Regulatory Law for Article 29 of the Constitution, which refers to the conditions under which a government can order the restriction or suspension of rights. These types of articles, which are found in almost all constitutions, are not only a contradiction, in the sense that they give legal form to what, by virtue of destroying any law, cannot be legal, but they have also allowed for the establishment of totalitarian States.
The best known case is that of Nazi Germany. Before the rise of Hitler to power, Article 48 of the Constitution of the Republic of Weimar, like Article 29 of the Mexican, said that "when the German Reich has been severely altered or security and public order are threatened, the President of the Reich may take the necessary measures for the restoration of security and public order", using even "armed forces" and suspending "in whole or in part, fundamental rights." In 250 cases the governments of the Republic (1918-1933) proclaimed a state of exception, among other things, to imprison thousands of communist militants and institute courts empowered to apply the death penalty. In 1929, it even used the article--with one of the powers also given to our president in the regulation for Article 29 in relation to the economy--to deal with the fall of the mark.
Immediately after the Republic handed power to the Nazis, Hitler, echoing the same article, proclaimed the Decree for the Protection of the People and the State, suspending articles of the Weimar Constitution concerning personal freedoms, and this was never revoked during the 12 years of Nazism. In both the democratic Weimar Republic and the Nazi dictatorship, such items made possible, as Giorgio Agamben says, a totalitarian reality, understood
"as the establishment, by means of the state of exception, of a legal civil war, which allows for the physical elimination not only of political adversaries, but of whole categories of citizens who, for whatever reason, may not be able to be integrated into the political system."Mexico's case is, however, different and unprecedented in modern history. Although Article 29 and its recent regulation is in line with the tradition of constitutions since, after the French Revolution, the Constituent Assembly, on July 8, created the legal concept of l'état de siège (state of siege), the state of exception to which this Article refers is not something that can happen, but:
1) has been happening, de facto, without any decree, since 2006, when Felipe Calderon declared the war on drug trafficking and brought the military into the streets;
2) it has intensified with the administration of Enrique Peña Nieto;
3) it has not been directed, as was the case of the German example, just against political opponents and whole categories of citizens who are in oppostion or unassimilable to the interests of the political system. On the contrary, it is directed against the entire population.While Article 29 has never been used in Mexico and, therefore, within the legal system our constitutional guarantees are intact, in fact, they do not exist. The State does not guarantee our security and hence our rights. It can arrest, torture, murder and disappear us, and agencies dedicated to delivering justice will do nothing for us, or pretend they do it or will do the minimum. They can also slander us and even, as in the emblematic case of Emilio Alvarez Icaza, fabricate crimes against us and, at the same time, maintain impunity for the real criminals.
As in states of exception, all of us, in one way or another, have become dispensable for the State and susceptible to becoming its enemies. We are, in this sense and in general, the Communists against whom the Weimar Republic used Article 48, and also the Jews, gypsies, the mentally ill and Catholics and Protestants who opposed the interests of the Nazi state. Not one of us escapes the state of exception by which the Mexican state and its partyocracies, in collusion with the interests of the market, --whether that of organized crime or the large multinational predators-- hopes not to save democracy, not to establish the hegemony of one race or the dictatorship of the proletariat--ideologies that belong to a past that no longer exists--but to maximize profit and do business using our lives and our territory.
This de facto state of exception, disguised as the rule of law and democratic freedoms, is, in its self-- and I haven't stopped repeating this--a new form of totalitarianism, or its antecedent, which seeks, by means of the Regulatory Act, to give a legal basis for making it necessary and, therefore, more frightening. In Mexico, as Walter Benjamin [German Jewish philosopher who died fleeing the Nazis] noted in his eighth thesis, the tradition of the oppressed again returns to teach us that the state of exception in which we live is the norm and we are obligated to combat it. Spanish original
*Javier Sicilia is a well-known activist, poet, essayist, novelist and Mexican journalist, contributing to such Mexico publications as La Jornada and Proceso. Following the murder of his son, Juan Francisco, and six friends, by drug gang members on March 28, 2011, he founded the Movement for Peace With Justice and Dignity, which organized Caravans to the North and South of Mexico in 2011 and to the United States in 2012 and 2013, in order to give voice to victims’ stories and protest the war on drugs.