This article is written by Satyaki Deb, a LL.M. (IP) candidate from the Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur. This article provides an exhaustive overview of martial law and its related concepts from an analytical viewpoint.
It has been published by Rachit Garg.
Table of Contents
Introduction
In today’s modern world, where most countries in the world have become a welfare state from a police state, the term ‘martial law’ at times appears to be a relic of the past. Common public perception around the world about martial law is unfortunately pretty vague, because presently, only a miniscule of the most unfortunate people are cursed to live and survive under the heavy yoke of martial law.
In periods of peace, the civil authorities are in charge of the administration and other agencies of the state. The armed forces remain under the control of the civil administration in these periods of peace. But in times of armed rebellions, insurgencies, natural disasters and / or wars, when the civil machineries in the whole state or in a portion of the state fail to maintain law and order, then the armed forces are empowered to take control of the affected area. All civil administration becomes subordinate to the appointed (sometimes self-appointed) Martial Law Administrator (MLA), who is usually the military commander and he dictates the Martial Law Regulations (MLR) which contains the list of martial law offences and their punishments upon violations. The Martial Law Administrator virtually enjoys unlimited powers and can do almost anything to restore peace and order. This is when martial law is said to be in force.
What is martial law
Before delving into the details of what martial law is, let us first have a look at what the term ‘martial law’ means loosely to the common people. In general, the term ‘martial law’ signifies the following four systems of military authorities, viz-
i) Law for the governance of the armed forces of a state, which is called military law. This is a type of statutory law and is used to govern military personnel only, thus making it of little concern to the civilians.
ii) Law for the governance of conquered territories and affected regions at home state during times of war by military commanders as per established customs of public law.
iii) Law for the suppression of internal rebellions or armed insurgencies and this is perhaps the most significant form of martial law as this relates to maintenance of law and order and protection of life and property. This is the most significant form of martial law because herein the military forces do not remain subordinate to civil authorities and cross the constitutional limitations placed on civil authorities and their police forces in order to restore law and order.
iv) The fourth form of martial law is when a military commander does a military coup and topples the civilian government and assumes power. Instances of this form of martial law have been viewed in Pakistan, Bangladesh and other countries in the world.
Definition of martial law
According to Black’s Law Dictionary (8th ed. 2004, Pg-3092), the term ‘martial law’ has been defined as –“The law by which during wartime the army, instead of civil authority, governs the country because of a perceived need for military security or public safety. The military assumes control purportedly until civil authority can be restored.” It has been further defined as – “A body of firm, strictly enforced rules that are imposed because of a perception by the country’s rulers that civil government has failed, or might fail, to function. Martial law is usually imposed when the rulers foresee an invasion, insurrection, economic collapse, or other breakdown of the rulers’ desired social order.” Every country has a ruler or government, who is mostly democratically elected. Now, what this definition means is, at times when the law and order situation of the country breaks down because of external and /or internal factors or is in such a state that is unsuitable for the ruler or government, then in order to restore the former situation of law and order or peace in the country, the harsh and strict form of regime that is imposed upon the people of that country is called martial law.
Explanation of the term ‘martial law’ and its features
In present times, martial law is believed to be a common law concept and is more of a ‘necessary evil’ solution for situations of serious disorder and breakdown of civil machineries in a state or in some areas of a particular state. Martial law is actually based on the legal maxim ‘salus populi suprema est lex’ which means ‘safety of the people is the supreme law’. It is based on the concept that when the civil authorities are unable to protect the people of the state, it becomes the duty of all loyal citizens, including the military forces, to employ necessary forces for the protection of the people and restore peace. Thus, martial law is a law of necessity where the necessity is an actual and factual one and there can be no general rule as to what degree of necessity warrants martial law. It can only be decided subjectively, on a case to case basis.
Since martial law becomes operative after the breakdown of civil authorities or in their absence, any civil authorities that continue to function during the operation of martial law act in subordination to the military commander’s will. For example, often civilians with judicial experience are appointed as court officers but they have to function at the pleasure and will of the MLA. The military commander in charge of the martial law enjoys summary powers and can deploy any degree of force for restoration of tranquillity in the affected areas under his control. The only check that may be there in the power of the military commander is the degree of emergency that warranted the imposition of martial law in the first place. In other words, based on the nature and character of the emergency, the military commander is expected to judge the degree of force he will be employing to restore law and order.
Some people prefer the term ‘martial rule’ and find it more apt than the term ‘martial law’. For example, Fairman, in his ‘The Law of Martial Rule (1930)’, argued that martial law is not a law, but more of a rule, because it is something that is indulged or allowed as a law. He further argued that martial law is not built on the edifice of settled principles but is built on the arbitrary will of the military general, that can vary from time to time as per his whims. So, according to Fairman and like minded people, the term ‘martial rule’ is a more accurate one compared to the term ‘martial law’. But this perspective is mostly considered incorrect. This is because when the military commander makes laws arbitrarily or otherwise, he is acting as the legislator. Moreover, during the imposition of martial law, separation of powers fades away and the Martial Law Administrator becomes the supreme legislator, supreme executive or executioner and supreme judiciary. Thus, whatever the military commander wants becomes the law, he uses the military powers to enforce that law and punishes those in violation of his law. The military commander mostly does this out of necessity to restore peace and as a last resort after civil machineries have failed or are on the verge of breakdown. So, even if the wishes of the military commander are called martial proclamations or military orders, in effect they are laws and for this reason, the term ‘martial law’ is preferred to the term ‘martial rule’. Only in places where military coups have taken place displacing a democratically elected government, the term ‘military rule’ becomes apt.
Origin of martial law
Like all common law, martial law too owes its origin to the English legal system. Initially, the term martial law was not in vogue. The term that was used in its place is ‘marshal law’ and the courts of law that dealt with this ‘marshal law’ were known as the ‘Courts of the Constable and Marshal’. These Courts of the Constable and Marshal enjoyed both civil and criminal jurisdictions and awarded punishments for every crime during times of war, whether it was committed within the English territories or outside the realm of English territories.
Statutorily, recognition was given to martial law during the reign of King Richard II, approximately at the end of the fourteenth century. But gradually, the English Parliament started opposing the wide powers of these Courts of the Constable and Marshal and started placing restraints upon them. An example of one such limitation placed upon these martial law courts can be found during the reign of King Henry VI in 1439, when power was stripped from these marshal law courts and the Common Law Courts of England were entrusted to deal with the power of punishing the deserters of the King’s army. Some of the instances when martial law was invoked in England can be briefly stated as follows:
- Once in the reign of Henry VIII, during the suppression of the Pilgrimage of Grace in 1536 and 1537.
- During the suppression of the Northern Rebellion of 1569 by Queen Elizabeth I.
- King James I invoked martial law in 1617, 1620, 1624 and 1625.
- King Charles I invoked martial law in 1626 and 1627.
- According to various writings, the last tried case in a Marshal Court was in 1737.
Difference between martial law and military law
For a very long time, the two terms ‘martial law’ and ‘military law’ have been used synonymously. Until about the 1830s, this indiscriminate usage of these two terms in the same capacities continued. Perceptions started changing from the 1842 rebellion of Rhode Island, when the US government invoked martial law to restore law and order. This led to the landmark case of Luther v. Borden (1849) where the US Supreme Court held that “…the martial law is the suspension of the common law, for the purpose of giving summary powers to the military. Further, the insurrection constituted a state of war and the state may use its military power to put down an armed insurrection and the State was itself the final arbiter in such a decision…” Thus, in this precedent case, it became abundantly clear that the US Constitution sanctioned the use of martial law as the last solution when civil machineries of the State had collapsed or were on the verge of collapse. Other countries too accepted this interpretation of the term ‘martial law’ where it meant the use of the military to restore law and order in an area under emergency conditions. On the contrary, military laws and rules are statutory laws passed by the Parliament to govern the military forces both at times of peace and war. For example, The Army Act, 1950; The Army Rules, 1954 etc.
Martial law in India
Even a cursory reading of the previous segments of this article would have made clear by now that martial law is invoked when the civil machineries are unable to maintain the law and order of a particular area. Since India’s independence on 15th August, 1947, her citizens did not require to witness the imposition of martial law unlike the times of the British Raj. But the following segments of discussions will answer if there is any scope of martial law in India or not, whether imposition of martial law is legal in India or not, whether elements of martial law are already present in India or not and much more.
Habeas Corpus and martial law in India
The significance of the writ of Habeas Corpus can never be stressed enough. This writ, which is often described as the ‘first security of civil liberty’ is a great constitutional privilege. The writ of Habeas Corpus, when translated from Latin literally means ‘you have the body’. A Judge of a constitutional court like High Courts or the Supreme Court may issue this writ to any authority detaining a person and ask that authority to prove that the person was legally detained and thus this writ works as a prompt and effective remedy against illegal detention. Now, the question that arises is what happens when martial law is invoked? Will the writ of Habeas Corpus be still available then?
To answer this, a more detailed look into the concept of martial law is necessary. As mentioned before, martial law is invoked when the civil machineries have broken down or are on the verge of a breakdown. Now, when there is no law and order in place and the civil machineries are simply unable to restore peace, we can definitely call such a scenario, a situation of emergency. Post independence, martial law has never been invoked in any place of India till date, but emergencies have been proclaimed. While discussing Habeas Corpus and emergencies, the case that must never be missed is the infamous case of ADM Jabalpur v. Shivkant Shukla (1976 SC). Here, perhaps in the darkest hour of India’s constitutional jurisprudence, a five judge bench with a majority of 4:1 had held that during times of emergency, the citizens can be stripped of all fundamental rights including the right to approach the constitutional courts with a writ of Habeas Corpus. Luckily later on, in addition to several implied overruling of this infamous case, in the landmark case of K.S. Puttaswamy v. Union of India (2017 SC), the Hon’ble Supreme Court of India expressly overruled the ADM Jabalpur case and inter alia held that the right to life and personal liberty including the right to the writ of Habeas Corpus cannot remain at the mercy of the State. In other words, even during times of emergency the writ of Habeas Corpus cannot be suspended by the State. So, as an inference or logical deduction from this landmark overruling of the infamous ADM Jabalpur case it can be stated that even if in future, martial law is invoked in any parts of India, the writ of Habeas Corpus cannot be suspended and hence no illegal detentions by military authorities will be permitted.
The beauty of this overruling is almost parallel to the famous dissent of Justice H.R. Khanna in the infamous Habeas Corpus case or the ADM Jabalpur case. Almost echoing his dissent, that had cost Justice Khanna his Chief Justiceship, the 9 Judge Bench of the landmark Puttaswamy case unanimously held inter alia that the Constitution cannot be the sole repository of the fundamental right to life and liberty in any civilised state for such sacrosanct rights are inalienable to human life and predates the Constitution of India. Such strong words by a 9 Judge Constitution Bench in favour of the fact that right to life and liberty cannot be taken away without the proper authority of law corroborate the conclusion that even if in future, martial law is invoked in any parts of India, the writ of Habeas Corpus will be available ensuring only legal detentions. Moreover, courtesy to the Constitution (44th Amendment) Act, 1978, Article 359 was amended to ensure that even during times of emergencies Article 20 and Article 21 of the Indian Constitution cannot be suspended. This further ensures that the Indian Parliament does not suspend the writ of Habeas Corpus during times of emergency or imposition of martial law. Though the concept of fundamental rights in the Indian Constitution has been inspired and borrowed from the US Constitution, this situation in India is a blessed contradiction with the scenario in the USA where the US Congress is empowered to suspend the writ of Habeas Corpus in times of rebellion, invasion or on grounds of public safety.
AFSPA and martial law in India
Considering the mammoth impact of the AFSPA, a comprehensive discussion on Armed Forces (Special Powers) Act (1958) and its equivalent Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 demands its own solo space and is thus beyond the scope of this article. Attempts have been made to discuss only those elements of the infamous AFSPA that prima facie contain elements of martial law.
Before delving into brief discussions on the provisions of the AFSPA that resemble martial law, it is pertinent to note at the outset that a five Judge Constitution Bench of the Hon’ble Supreme Court, in the case of Naga People’s Movement of Human Rights v Union of India (1997), have upheld the constitutionality of the AFSPA, 1958. But a list of Dos and Don’ts for the armed forces during the imposition of AFSPA was also laid down by the Supreme Court in this landmark judgement. A combined reading of Article 246(1), Entry 2A of List I (Union List) in the Seventh Schedule and Article 355 of the Indian Constitution provides legitimacy to the AFSPA.
Now, let us briefly study some of the elements of the AFSPA that appear to contain features of martial law, the justifications in favour of them and against them. They are discussed as follows:
- Section 3 of the AFSPA, 1958 empowers the Central Government or the Governor of any State or the Administrator of any Union Territory to declare the whole or any part of the State or Union Territory as ‘disturbed area’ and invoke AFSPA there, when in their opinion such a ‘dangerous or disturbed condition’ exists that the use of military forces in the aid of civil authorities is necessary. It is argued that the military forces should be used only against external threats to a country. So, in the opinion of many jurists, scholars and human rights activists, the power to use the armed forces to quash internal disturbances is an excess use of force and goes against the basic tenets of human rights and constitutional rights. The argument that is mostly advanced against this is that, presently, the threats, especially terrorist threats to a nation have become so diverse that clear cut distinctions between external and internal threats have become very hard to identify. As a result, situations may be grave enough to warrant the deployment of the military forces to curb internal rebellions, insurgencies etc., to restore peace and order faster and to make sure complete mayhem is not let loose.
- Section 4(a) of the AFSPA is notorious for empowering any officer (commissioned or non-commissioned) of the armed forces working in a ‘disturbed area’ to use any force (even lethal force) necessary for the maintenance of public order, if there is a contravention of any law and order in force, even to dispel the assembly of five persons or more when such assembly is prohibited, etc. This shows that when in other areas of India, violators of Section 144 CrPC usually get a few months simple imprisonment, in the designated disturbed areas where AFSPA is in force, the violators can be shot to death. The only barrier to such wide powers to take away another person’s life is the discretion of the military personnel shooting and the quantum of warnings given before shooting is also at the discretion of the military personnel which he is expected to exercise on the gravity of the situation. The military personnel shooting need not provide any explanations or justifications as to why in his discretionary power, it was necessary to shoot with lethal force. Such wide military powers are widely argued to be the British colonial remains and goes against various international non-derogable human rights. Are the people of the disturbed areas at a similar stature to the Indian government and armed forces as the Indians were to the British before independence?
- Section 4(c) of the AFSPA empowers any officer (commissioned or non-commissioned) of the armed forces working in a ‘disturbed area’ to arrest without any warrant any person who has committed a cognizable offence or is reasonably suspected to commit a cognisable offence or is about to commit a cognisable offence and in order to effect such arrest any amount of force may be applied. It is argued that in most cases, these arrests end up being arbitrary arrests and preventive detentions on mere suspicions. Moreover, though the military has been instructed to hand over these arrested persons to the nearest police stations with the least possible delay, it is believed based on reliable sources that they often keep these arrested persons in their custody for more than the recommended period of twenty four hours.
- Section 4(d) of the AFSPA also gives wide powers to any officer (commissioned or non-commissioned) of the armed forces working in a ‘disturbed area’ to enter and search any premises without warrant to effect any arrest as mentioned above or to recover unlawful weapons etc.
Endless discussions are possible on how much further the AFSPA has got the stench of martial law and the above discussions constitute merely the tip of such iceberg for practical reasons. What is worse is that because of Section 6 of the AFSPA, without the permission of the Central Government, no legal action can be taken against any military personnel who have allegedly transgressed their powers under the guise of AFSPA. The recent killings of innocent civilians in the Mon district of Nagaland in December, 2021 by the members of the Indian armed forces and the way the perpetrators or the shooters have still not been punished is another of the many testaments that substantiate the allegations of extreme lack of accountability behind the discretionary powers of the military forces working in the disturbed areas. It is true that martial law has never been expressly invoked in India since independence, but the ground realities of AFSPA reek of de-facto martial law. Sitting in areas where our own rights are protected and then arguing about the necessary cost of human rights and constitutional rights that the innocent civilians of the disturbed areas must give up to get back peace and for the greater good, unfortunately stinks of nothing short of hypocrisy. In this regard, the recent efforts of the Indian government in trying to reduce the number of ‘disturbed areas’ is a welcome step in the right direction.
Article 34 of the Indian Constitution
After going through the above discussions on martial law, the natural question that may crop up in our mind is – what does our Constitution say on martial law? Well, no articles in the Constitution lays down what is martial law or when and how it can be invoked. The only provision that contains the term ‘martial law’ is Article 34. Let us have a look at what this Article says before briefly analysing it. According to Article 34 of the Indian Constitution, “Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.” In other words, it can be clearly seen that if necessity arises, martial law may be imposed in any parts of India and some of the ‘foregoing provisions’ i.e. the Fundamental Rights enshrined under Part III of the Constitution may be suspended. Moreover, any government personnel or any other person working under martial law to restore peace and order may be indemnified or protected for acts done in furtherance of the objectives of the martial law by Acts of the Parliament at a future date. Now, this provision may be interpreted to be the leeway provisions for personnel abusing their power under the garb of martial law. But attention of the readers is drawn to the objective of this clause which is to ensure that the military personnels working to restore law and order can function without the fear of backlashes when peace has been restored. When the situation is so grave that civil administration has broken down or is on the verge of breakdown, the military commander has to make laws on his own and conduct trials for the violators of such laws even though he is not the law making authority. So, to legitimise retrospectively, the necessary steps of the military or any person working to restore peace, Article 34 is necessary. The scope of misuse of a legal provision should not be the argument for its deletion. But one pertinent point that needs to be mentioned in this regard is that, no loopholes in the Indian Constitution are present by which the Indian armed forces can usurp a democratically elected government and there are sufficient safeguards at various levels to ensure the same.
Martial law around the world
After understanding the concepts of martial law in India, it is only prudent to know about martial law from a global perspective too. The following segments will briefly discuss how martial law has been dealt with in various countries across the world in the light of related concepts. And the reason the concept of Habeas Corpus has been stressed so much while discussing martial law is because while civil administration gets suspended and the citizens are at the mercy of the will of the Military Law Administrator (MLA), it is this writ of Habeas Corpus or like provisions that can take the front seat and protect innocent civilians from illegal detentions and persecution. In times of grave necessity, most of us are willing to bow down to the stricter norms and laws laid down by the military commander for the sake of restoration of law and order, but such peace must not come at the dear cost of illegal detentions and persecutions by the military. In the grave times when most civil laws are suspended, it is this writ of Habeas Corpus that can put some sort of accountability and check on the broad powers of the military commander. So, analysing the scope of Habeas Corpus in the times of martial law across various countries will help us comprehend better the full canvas of martial law but due to obvious practical impossibilities of covering the martial law of every country in the world, only some of the present global powers have been studied from an analytical viewpoint.
Habeas Corpus and martial law in USA
Before independence, the USA was mostly a British colony and thus the concept of Habeas Corpus in the US Constitution owes its origin to the common law. According to Article I, Section 9, Clause 2 of the US Constitution- “The privilege of the writ of the Habeas Corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it.” Since this provision is mentioned under the Article dealing with the Congress, It is clear from this that the founding fathers of the US Constitution empowered the US Congress to suspend the writ of Habeas Corpus in the above mentioned circumstances of rebellion, invasion and public safety, and thus it is the Federal Government of USA that was prohibited from suspending the writ of Habeas Corpus.
Unlike post-independence India, since the independence of the USA in 1776, there have been quite a few instances when martial law has been invoked in various parts of the US from time to time. The following important cases in the history of US Constitutional jurisprudence will provide a more comprehensive and clearer picture about martial law in the US scenario. As far as practicable, the subsequent cases have been provided in a chronological manner for the convenience of understanding.
| Case Laws | Brief Facts of the Cases | Judgments / Significance |
| 1. Ex parte Merryman (1861) | John Merryman, a citizen of Baltimore was arrested by the armed forces without any warrant from any lawful authority and was imprisoned under the authority of General George Cadwalader. When Chief Justice Roger B. Taney, during his Circuit Court duty issued a writ of Habeas Corpus to the commanding officer Cadwalader, it was replied that the petitioner had been arrested upon the order of General Keim of Pennsylvania. No warrant, witnesses or evidence based on which this arrest on the general charges of treason and rebellion was made was provided to the petitioner’s counsel. Moreover, the military commander refused to obey the writ of the Chief Justice of US stating that the President of US had empowered him to suspend the writ of Habeas Corpus at his discretion and he was doing so in this case. | The arrogant and brazen reply of the military commander in response to the Chief justice’s writ of Habeas Corpus led to the following judgement of the Court. It was held that-The US President simply cannot usurp the power to suspend the writ of Habeas Corpus and the fact that he delegated such power to a military commander to be used at his own discretion is shocking.Only the US Congress can suspend the writ of Habeas Corpus in the manner prescribed in the US Constitution.A military officer can arrest a civilian who is not under the purview of rules and articles of war only to aid the civil authorities and when the civilian has committed an offence against the US. Thereafter, such civilians should immediately be transferred to the civil authorities to be dealt with according to the law. |
| 2. Ex parte Milligan (1866) | Lambdin P. Milligan, a citizen of the State of Indiana, was arrested and tried before a military tribunal and was sentenced to death during the later part of the US Civil War on charges of conspiracy against the government, aiding the rebels, etc. He made a writ petition of Habeas Corpus which reached the US Supreme Court. | The conviction of the petitioner by the military tribunal was overturned by the US Supreme Court because the State of Indiana was not a warzone and civilian courts were still functioning there. Moreover, the military tribunal was not a court as per the US Constitution and being a court not recognised by the US Congress, the conviction of Milligan was held to be illegal. In this context, the solemn words of Justice Chase are pretty significant. He said- “The Constitution of the United States is a law for the rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances.” Such words reiterate the supremacy of the constitutional law under all circumstances. In other words, though civil law may be suspended during the imposition of martial law, the constitutional law provisions can never be suspended except as otherwise provided by the Constitution itself. |
| 3. Hirabayashi v. United States (1943) | After the dreadful Pearl Harbour attack at Hawaii by the Japanese military, the then US President Roosevelt had issued a couple of executive orders which were soon enacted into laws. Gordon Kiyoshi Hirabayashi, the petitioner, who was a student at the University of Washington, was convicted of violation of a curfew and relocation order. | The US Supreme Court made it clear that during the imposition of martial law any order or rules made by the military commander which in his judgement is necessary to prevent threatened injury or damage is valid in the eyes of the law including racial discrimnation (against the Japanese in this case) because in the words of Chief Justice Stone, who wrote the unanimous judgement on behalf of the Bench – “..in time of war residents having ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry.” |
| 4. Shafiq Rasul v. George W Bush (2004) | After the shameful terrorist attack on the World Trade Centre in 2001, the US began its war against terror. In this process, 2 British citizens, 2 Australian citizens and 12 Kuwaiti citizens were arrested by the US military from Afghanistan and imprisoned at the infamous Guantanamo Bay US military base in Cuba. The families of these prisoners filed the writ of Habeas Corpus in the US seeking to declare their imprisonments unconstitutional. The US government argued that since the detainees were not US citizens and were detained on fully sovereign Cuban land, they had no jurisdiction to file the writ of Habeas Corpus. The District Court and the US Court of Appeals for the District of Columbia agreed with the US government and the matter finally reached the US Supreme Court. | Guantanamo Bay, though a property of Cuba, was leased to the US government in perpetuity where the US government exercised ‘complete jurisdiction and control’. Giving this reasoning, the US Supreme Court, in a majority decision of 6:3, held that since the US government enjoyed complete control and jurisdiction over the Guantanamo base, the detainees had the jurisdiction to file the writ of Habeas Corpus irrespective of their citizenship status. This case is a landmark case in the sense that even non US citizens detained by the US military during times of war or imposition of martial law have the right to challenge the constitutionality of their detentions by the writ of Habeas Corpus. Later, once again, in the case of Boumediene v. Bush (2008), the US Supreme Court upheld the constitutional right to the writ of Habeas Corpus of the prisoners at Guantanamo Bay. |
In the US, at least 68 times martial law has been invoked and the full canvas of martial law is still unfortunately in the grey. Despite the confusions, from the above discussions, the following conclusions on martial law in USA have been attempted, viz-
- The US President has no legal authority to declare martial law (though it has been done and/ or approved in the past by US Presidents like Lincoln, Roosevelt etc.). But the US Congress may be able to legalise the Presidential declaration of martial law by authorising the same, though this aspect of legalising Presidential martial law declarations retrospectively is somewhat inconclusive.
- State officials can invoke martial law if the situation in the State warrants the same. For example: After the Pearl Harbour attack by Japan, Hawaiian authorities invoked martial law which was later approved by the then US President Roosevelt.
- The declaration of martial law by State officials cannot violate the provisions of the US Constitution and can be reviewed by Federal Courts.
- Though the US President is not legally empowered to invoke martial law on his own, he can deploy the US military to assist civilian authorities and this power is only one notch below the imposition of martial law in effect.
Until the enactment of comprehensive legislations at the Federal and State levels that better define the scope of martial law in the US, the precise boundaries of martial law will remain unsettled, thus dangerously leaving open gaping holes in the martial law that can be misused at the dear cost of human rights and civil rights violations.
Habeas Corpus and martial law in Canada
The substantive portion of the laws dealing with Habeas Corpus owes its origin to England and Wales and according to Section 10 of the Canadian Charter of Rights and Freedoms (1982) – “Everyone has the right on arrest or detention to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.” So, it can be seen that every arrest or detention may require to face the scrutiny of the courts of law by the writ of Habeas Corpus. Now, the obvious question that arises is can this writ of Habeas Corpus be suspended? If so, who is empowered to do it and under what circumstances? These answers lie in the provisions of the Section 33 of the Canadian Charter of Rights and Freedoms which deals with non obstante clauses. By virtue of these non obstante or notwithstanding clauses, only the Canadian legislation is empowered to suspend the writ of Habeas Corpus. The circumstances that can warrant this suspension are not expressly laid down in the Charter and till date at the federal level, the writ of Habeas Corpus has not been suspended, although at the provincial levels Section 33 declarations have been made at times.
Now, the recent incident in the earlier part of 2022 when the Canadian truck drivers’ protests against Covid 19 restrictions and vaccinations were getting out of hand, emergency provisions were invoked by the Canadian Federal Government but it was made clear that military forces were not going to be used and that the fundamental rights (including the right to the writ of Habeas Corpus) under the Canadian Charter of Rights and Freedoms were not going to be suspended . Thus, even though to the layman martial law was being invoked by this emergency declaration, legally speaking, no martial law was put into force by the Canadian legislation. In this regard, it can be safe to comment that though not done till date, the writ of Habeas Corpus can be suspended by the Canadian legislation at the federal level in future if there is necessity and martial law as a law of necessity can be invoked.
Habeas Corpus and martial law in Russia
According to Article 22(2) of the Constitution of the Russian Federation, only by virtue of an order of a court of law can a person be arrested, detained or kept in custody. Moreover, in the absence of an order of a court of law, a person may be detained for a maximum forty eight hours only. Further, the Code of Criminal Procedure, 2002 mandates that only when a person is accused or suspected of committing a crime carrying a prison term of minimum two year imprisonment, can he be detained. But unfortunately, there is no express mention of the writ of Habeas Corpus in the Russian Constitution. So, in cases where there is a minimum two year imprisonment term and a suspected or accused individual needs to be detained for more than forty eight hours, the officials conducting the inquiry, that is the prosecutors and / or investigators have to seek judicial permission from a court of law at least eight hours before the expiry of the detention period. In other words, although the writ of Habeas Corpus is absent to a detained individual, he / she cannot be detained for more than forty eight hours without judicial sanction. The detention period can be extended for the next seventy two hours to help the investigators and prosecutors build the case against the detainee. Also, within three days, the judge’s order can be appealed to a higher court of law.
After seeing the rights of a detainee to challenge his detention in Russia, it is time to look at the scenario from the lens of martial law. According to Article 87 of the Russian Federation, the Russian President can invoke martial law to the whole of Russia or any part of it during an aggression or direct threat of aggression against Russia and must immediately inform about the same to the Council of the Federation (Upper House of the Federal Assembly) and the State Duma (Lower House of the Federal Assembly). Also, the federal constitutional law shall define the regime of martial law. In other words, the decrees of the President cannot violate the federal constitutional laws regarding martial law which is envisaged under Federal Constitutional Law No. 1-FKZ of January 30, 2002. In areas where martial law is invoked, depending on the necessity, there can be military censorship and / or full control of the media and communications, additional measures can be taken to provide higher degree of secrecy to the state authorities and local self-government bodies but court proceedings are to remain public. Further, according to Clause (4) of the Article 1 (Warlike situation) of the Federal Constitutional Law No. 1-FKZ of January 30, 2002, the rights and freedoms of any individuals (citizens, foreigners, stateless persons) can be limited as per the necessity of the situation.
Thus, the above discussions make it logical to infer that in times of peace, an individual is protected from illegal detention by judicial scrutiny but if martial law is invoked, depending on the necessity, such rights may be curtailed or suspended.
Habeas Corpus and martial law in France
There is no express use of the terms ‘Habeas Corpus’ and ‘martial law’ in French law but similar provisions have been envisaged in the constitutional law and other statutes. Firstly, the similar provisions to Habeas Corpus will be briefly mentioned and then those provisions that are similar to martial law will be portrayed. Thereafter, attempts will be made to see how far an individual can protect himself or herself from illegal detentions during imposition of martial law in France.
The provisions envisaging safeguards similar to that of Habeas Corpus can be discussed under two heads, viz-
- Constitutional safeguards: The French Constitution (1958) inter alia contains the Declaration of the Rights of the Man (1789) and Article 2 of this Declaration proclaims the preservation of liberty, property, safety, resistance to oppression which are the natural and inalienable rights of the man. Further, Article 7 of this Declaration envisages that an individual can be accused, arrested or detained only as per the provisions of the law and following the due procedure of law. In addition to these, the French Constitutional law strongly deters arbitrary detentions and the French Penal Code comes down heavily on any civil servant or judicial officers indulging in the same. In addition to the above mentioned constitutional guarantees, France also is a signatory to the European Convention for the Protection of Human Rights and Fundamental Freedoms and Clause (4) to Article 5 of this Convention states that “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” All these provisions envisage the key to the protection of the famous French principle of fundamental right to liberty of an individual against illegal detentions by state machineries.
- Procedural safeguards: The procedural safeguards envisaged in the French Code of Criminal Procedure implement the substantive guarantees mentioned above. For example: According to Section 126 of the Code, any arrest made on the basis of a warrant will be considered an arbitrary detention if the arrested person has not been questioned for twenty four hours and the judicial officers and civil servants indulging in arbitrary detentions will be severely punished as per the provisions of Articles 432-4 to 432-6 of the French Penal Code. Another example is that of Section 77 of the Criminal Procedure Code, which ensures that a suspect is not detained for more than twenty four hours by the police and this detention can be increased for another twenty four hours by the public prosecutor. After this for further extensions, sanctions of judicial officers will be necessary.
These above discussions clearly show that even in the absence of the express provisions of the writ of Habeas Corpus, French laws have sufficient safeguards to protect an individual from illegal arrests and detentions.
Now, coming to martial law in France, two articles in the French Constitution are of interest to us in this regard, viz Article 16 and Article 36. Before delving into brief discussions about the same, let us note that the term equivalent to martial law in the French landscape is ‘state of siege’. By virtue of Article 16, the French President can declare an emergency under serious and immediate threat to the French Republic. For a long term declaration of emergency, the President will require the consensus of the Constitutional Council and the Presidents of the Parliaments (National Assembly and the Senate). And according to Article 36 of the French Constitution, the Council of Ministers (Executive) can declare a state of siege for a maximum period of twelve days without the approval of the Parliament. Exactly what can be done under a state of siege has not been expressly laid down.
Based on analytical research read with the provisions of Habeas Corpus like provisions and martial law like provisions discussed above, the following inferences can be drawn in the case of France, viz-
- Historically, at times, the state of siege provisions have bulldozed the constitutional safeguards at the cost of the right to liberty of the individual.
- But there is this concept of constitutional dualism which requires that there should be two sets of legal provisions for the protection of the rights and liberties of the common man – one during times of peace and one during emergency situations based on the degree of necessity.
- So, martial law or state of siege laws, being creatures of necessity, how ferociously they should be unleashed by the military to restore law and order totally depends on the degree of emergency. Even a thin line of accountability in the form of minimum laws that protects the individuals from illegal arrests and convictions by the military during martial law can actually help in the restoration of peace faster. In other words, during imposition of state of siege laws only that much erosion of constitutional guarantees should take place as required, not a degree more.
Habeas Corpus and martial law with respect to International law
The right to challenge the legality of one’s detention by state authorities is a basic human right enshrined by various international treaties and covenants. Some of these provisions expressly envisage the right to the writ of Habeas Corpus while others lay down parallel provisions without expressly using the term. Interestingly and logically enough, these international treaties and covenants also contain provisions to curtail or suspend civil and political rights in times of emergency or necessity. By now, we have understood that martial law is a law of necessity and is generally imposed during dire times of emergency or necessity to restore peace and order. Let us have a look at these provisions in international law envisaging the right to Habeas Corpus (or like provisions) and how they can be suspended during an emergency.
According to Article 8 of the Universal Declaration of Human Rights (UDHR), “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”. In other words, an individual can challenge the legality of his detention or arrest which takes away his / her fundamental right to life and liberty before the competent courts of law. This provision does not expressly mention the term ‘Habeas Corpus’ but lays down the general scope of judicial review of the legality of a detention and is thus considered to be equivalent to the writ of Habeas Corpus by various jurists and legal scholars. Since, the UDHR is considered as the primary source of human rights at the global level, the incorporation of provisions envisaging the likes of Habeas Corpus go a long way in distinguishing it from conventional obligations of states.
Moreover, according to Article 9(4) of the International Covenant on Civil and Political Rights (ICCPR), “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” This provision is similar to the above mentioned Article 8 of the UDHR but the difference in significance lies in the fact that UDHR is a declaration whereas, ICCPR is a covenant (treaty) that has been ratified by 172 states (as of December, 2018) and the Human Rights Committee that monitors the implementation of the ICCPR have held multiple times that the restrictions on Habeas Corpus are generally not permissible.
Now, let us have a look at some of the international provisions and the circumstances that empower a state to curtail or suspend this basic human right of an individual to challenge the legality of his / her detention. According to Article 4(1) of the ICCPR, any treaty state when the life of that nation is threatened may derogate the civil and political liberties envisaged under ICCPR but such derogations must be limited to the extent required as per the necessity of the situation. But Article 4(2) of the ICCPR also lays down that there are certain non-derogable human rights no matter the severity of the emergency such as the rights against murder, torture, slavery and discrimnation. Moreover, Article 4(3) of the ICCPR requires any state derogating the ICCPR rights to immediately inform about the same to the UN Secretary General and the date till which emergency measures will be in force which may be challenged by other treaty parties before an international monitoring body. But unfortunately, there are no provisions in any international treaties that include the right to Habeas Corpus as non-derogable in nature.
Thus, the above discussions show us that according to international law, the states are obligated to provide the right to Habeas Corpus during normal times but during times of emergencies, depending on the degree of necessity, the right to Habeas Corpus may be suspended. In other words, if martial law is invoked, depending on the graveness of the situation, the right to Habeas Corpus may be locked away for the greater good, for international law fails to guarantee the same under every circumstance.
Conclusion
After studying in detail on martial law, the first logical thing that may crop in our minds is that martial law is like a necessary evil. It is something that can be immensely abused, but for the restoration of law and order in extremely troubled areas, martial law becomes a dire necessity. After a thorough analysis of martial law both at the national and global level, it is strongly believed that what lacks is proper parameters around martial law. For example: It needs to be clearly defined at first as to what martial law is in the eyes of the Legislative, how the Central or Federal Government (as the case may be) plan to retain well defined control over the Military Law Administrator, well defined deterrent steps to prevent abuse of power, at least some clear provisions that will demand some accountability from the armed forces imposing martial law, clearly defined remedial measures for the victims of abuse of power, etc. are dire necessities to control this necessary evil and at the same time use it to its fullest extent to restore peace and order at the earliest. In today’s modern age, with the ever dynamic and intermingling scope of external and internal threats to a nation, clearing the shadows around martial law will garner ground support in the disturbed areas and help in restoration of peace faster. A legally crippled armed force in charge of restoration of peace in severely disturbed areas is not what is sought here. You see, martial law is a lot like nuclear power – tremendous power to bless and curse at the same time. What is simply needed here is that martial law around the world be treated with the due safety precautions that can ensure the minimum to preferably nil collateral innocent lives for the greater good of faster restoration of law and order.
References
- https://rss.swlaw.edu/sites/default/files/2018-04/SWT104.pdf
- https://www.constituteproject.org/constitution/France_2008.pdf?lang=en
- https://tile.loc.gov/storage-services/service/ll/llglrd/2018299337/2018299337.pdf
- https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1666&context=cilj
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