This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. This article provides an insight on the martial law in Ukraine, changes in the legislature and other functionalities and its provisions.
It has been published by Rachit Garg.
Table of Contents
Introduction
The temporary substitution of military authority, where the military is given the power to decide the rules and regulations for civilians of a particular country, is known as the implementation of martial law. It is generally invoked due to war, rebellion, or internal aggression. The provisions and imposition of martial law depend on the constitution of a country. When the legislature is ineffective in controlling the aggression in the country and fails in its duty to maintain peace, the power is given to the military and its authorities for the same. In this situation, the force, not the police, is responsible for maintaining law and order and the safety of the people. Ukraine Russia’s aggression is an ongoing concern in the world today. As a consequence of all the internal irregularities, the President of Ukraine has imposed martial law in the country. The article gives the instances where martial law was invoked in Ukraine and the changes in the functionaries due to this, along with its effect on the civilians.
History of Martial Law in Ukraine
The imposition of martial law in Ukraine is the result of the Constitution of Ukraine, the law on the legal status of martial law and various presidential decrees passed from time to time in the country. The previous law on the legal status of martial law was enacted in 2000 and was signed by President Leonid Kuchma. However, it was amended several times in 2003, 2008, 2010, 2012, and 2014. The legislature and the President felt the need to adopt a whole new law on this matter.
As a result of the discussion and need, a new Bill on martial law was presented in Parliament by then President Petro Poroshenko, who gave his assent to the Bill and it was adopted by the Verkhovna Rada of the country. The President also declared that the law will come into force by passing a decree for any offence resulting in internal aggression or in case a truce is violated. For the successful implementation of the new law, the cabinet ministers decided to devise a plan to introduce the measures and provisions of the law into the regime. In order to curb military intervention for a longer period, the executive created several divisions in each sector and department. For example, the Ministry of Social Policy would also operate the Divillion for Anti-terrorist operation zone and its social adaptation and the retired servicemen of the country for their help and guidance during such an intervention. Another such division was created in the Ministry of Health for medical help and care during anti-terrorist operations and emergencies in the country.
Legislative relief measures during Martial Law
During the imposition of martial law in the country, the decision-making power with respect to legislation, peace and safety of people, maintaining law and order and rules for the working of other functionaries is given into the hands of the military authorities and the forces. In order to protect the citizens during martial law in Ukraine, several measures have been taken. These are discussed below.
Relief measures in the Civil Code
In 2022, an amendment was made to the Tax Code of Ukraine along with amendments to other legislative acts to tackle the implementation of martial law in the country. The changes were also introduced in the Civil Code, where it was stated that during the period of martial law and after 30 days of its cancellation, the various borrowers who have taken any loan will be exempted from their liability to pay the money if they are unable to do so or fulfil their agreements. They are also exempted from any kind of penalties and are subject to write-off by the lenders.
There has been an increase in the limitation period given in the statute during martial law, which also extends to the surety and other procedures.
Changes in consumer credit law and enforcement proceedings
The changes in consumer credit law are the same as the changes in the civil code, where a borrower is exempted from their obligation to pay back the sum and the penalty if he is incapable of doing so. Due to the Ukraine-Russia crisis, some measures have been taken in the enforcement proceedings as well. These are:
- Such enforcement proceedings will be suspended.
- Replacement of a recoverer is not allowed if the person is from the Russian Federation or any entity registered therein.
- The transactions from the seized accounts are allowed and the terms of procedures are extended during the period of martial law.
- The territories that have been occupied due to military aggression by Russia, will not have any enforcement proceedings.
Mortgages
The mortgagees during the martial law and after 30 days of its cancellation are not allowed to foreclose any collateral with any person. No person can be evicted or thrown out of the residential place or building that has been mortgaged or for which there is a decision from the court on the foreclosure, during such a period of martial law.
Banking laws during Martial Law
There has been an amendment in the Laws on Banks and Banking activities which classifies banks as insolvent during martial law and 4 months after its cancellation. The board has passed various resolutions providing limits on the withdrawal of cash from FX accounts in the country. These are as follows:
- UAH 100,000 – withdrawal from any foreign account.
- UAH 100,000 – withdrawal from foreign exchange accounts.
- UAH 100,000 – withdrawal from hryvnia accounts abroad.
- UAH 100,00 – withdrawal from hryvnia accounts in the country.
The National Bank of Ukraine has imposed certain restrictions on cross-border transactions for the payment of some specific goods that have been listed as critical goods and whose amount does not exceed UAH 400,000. It has also decreased the period for the settlement of export transactions from 365 days to 90 days.
Changes in anti-money laundering law
The various changes in the law are as follows:
- The banks have a right to carry out expenditure transactions on the accounts where the money has been deposited in the form of cash after recognizing the sources of funds after the cancellation of martial law in the country.
- During martial law, the banks will not establish the source of funds where a person is depositing cash in his/her account which exceeds the financial limits laid down by the bank.
- They also have the authority to freeze the accounts and the money deposited if there is any suspicion that the money has been deposited for any illegal purpose or terrorist activity.
Impact on work during Martial Law
During martial law, every department is affected, and so is the work. The employer-employee relationship is affected the most when we talk about working conditions, as the job is no longer permanent and many businesses collapse due to the financial crisis. The Parliament in Ukraine enacted the law “On Organizing Labor Relations during Martial law” which came into effect on March 24, 2022, and set principles and rules for the labor conditions and restrictions on their constitutional rights. The analysis of such a law reveals that it is favorable to employers rather than employees. The changes in the working patterns and the effect on work during martial law can be discussed as:
Entering into agreements
- During martial law, the parties to a contract have the right to opt for any kind of agreement, whether oral or written, while before the implementation of martial law, written agreements were the only options available.
- The probationary period is generally not applicable to certain workers that are temporary, like disabled workers, pregnant women etc but during martial law, it can be applied to every worker.
- The employers have also been given a remedy to go for a fixed term agreement with an employee which is available otherwise.
Working conditions
- The employers have the authority to send their employees to another job without taking their consent.
- A two-month notice period, which was mandatory otherwise, is not applicable during martial law because of the change in the working conditions.
- There has been an increase in the working hours from 40 hours per week to 60 hours per week for full-time workers and 24-36 hours per week to 50 hours per week for part-time. No wages will be given for overtime.
- The starting and ending of the daily shift are to be determined by the employer which was earlier decided by the trade unions.
- Workers enjoying certain privileges are no longer given those advantages. For example, a woman with kids, after taking her consent can be ordered to do heavy work or work during the night.
- The employer cannot restrict or limit the salary of the employee. However, he may delay it if caused by invasion or other hostilities.
Termination and suspension
- The employer can terminate the employee without giving any prior notice and consent from the trade union for the dismissal of the employee is not a requirement.
- The employer agreement can be suspended by the employer. It works on the following two conditions:
- There was no job for the employee,
- The employee cannot fulfill the obligations and carry on its duties due to invasion.
- The compensation in such conditions is imposed on the country invading or carrying out military aggression in the country.
- Collective bargaining agreements are also suspended during this period.
- Article 44 of the law “on trade unions, their rights and activity guarantees” is suspended, which talks about additional payment in the salary for recreational work.
Mobilization of employees
Employers are under the obligation to adhere to the legislative guarantees for employees for their duties related to admission to the military services like conscription, medical examination etc. The employers have to retain their jobs and the average earnings. If the employee is not able to submit the required documents showing his military service, the employer cannot dismiss him for absence.
Instances where Martial Law was imposed in Ukraine
After the passage of modern law on the legal status of martial law in 2015 and the declaration by the then President that it shall be imposed by passing a decree, martial law has been imposed 2 times till now in Ukraine. The first was imposed in 2018 and then in 2022. The reason for the imposition of martial law both times is the same, i.e., invasion by the Russian Federation. The two instances are discussed as:
- In 2018, as a consequence of increasing tension with the Russian Federation and the incident of capturing the three navy vessels of Ukraine in the Kerch Strait, the President initiated the passing of a decree for martial law for 60 days, but after the discussions in the emergency session, it was decided to pass the decree for 30 days. During such a period, people belonging to Russia were prohibited from entering the territory. A report shows that people belonging to the age group of 16-60 years from Russia were not allowed to enter Ukraine, as stated by the State Border Guard Service of Ukraine. The specific territories under martial law were those on the Russia-Ukraine border, the Moldova-Ukraine border, and the coasts of the Black Sea and the sea of Azov. However, the decision of the President to introduce martial law was criticized on the ground that it affected the 2019 elections of the President due to restrictions on the Constitution by martial law and that he did not realize to impose such a law when other heinous military interventions had already been made since the invasion by the Russian federation in 2014.
- In 2022, martial law was again introduced in the country as a result of the invasion by Russia and increasing tension between the two, which resulted in the disruption of peace and harmony in Ukraine along with loss of life and property. President Vlodomyr Zelensky declared that people in the age group of 18-60 years are prohibited from leaving the country, and they also started the general mobilization of people and all reserve forces. A curfew was also declared to expose the Russian invaders. All the national news channels were merged into one channel, and the activities of all the eleven political parties of opposition were suspended. The invasion is a result of the Ukrainian revolution of dignity in Russia and the status of Crimea and Donbas as territory of Ukraine in 2014. This gave rise to eight years of conflict between the two, including the annexation of Crimea by Russia in 2014 and aggression in Donbas.
Analysis
The law on the legal status of martial law in Ukraine has been enacted to protect the country from the disruption of peace and harmony and loss of life and property if the legislature fails to do so in the circumstances of war, internal aggression, and rebellion. The introduction of martial law restricts various constitutional rights of the people and affects the way of life in the country. It gives the decision-making power to the military authorities along with the maintenance of peace and order to the forces rather than the police. Many times, it is beneficial for the country. However, it might lead to dictatorship and military coup.
The enactment of martial law in Ukraine is based on its Constitution as it provides for the introduction of such a law if necessary. After the enactment of the law in 2015, the decree for martial law has been passed twice, in 2018 and 2022. The first imposition of martial law in 2018 was criticized on the grounds that it was delayed. Both times, the reason was the tension between Ukraine and Russia and the loss of life and property due to this. The President signed the decree in February 2022 to introduce martial law in the country. As per the reports, he has signed yet another decree extending the period of martial law for another 90 days till August as the aggression with Russia continues. This shows that the situation is still not peaceful in the country and there is a danger of war.
Conclusion
It can be concluded that martial law becomes necessary in times of emergency due to war, rebellion, internal aggression, or invasion by any other country. However, there must be some measures and reliefs to check the power of the military during the period of martial law. If the powers are not checked, it might lead to a military coup. Ukraine has taken certain measures and relief for its people to protect them in such a situation. The current position of martial law reveals that it has been extended for another 3 months till August. This means that the circumstances are not in the country’s favor and there is a fear of war.
Frequently asked questions (FAQs)
What is martial law?
According to the U.S. Department of Justice, it is the substitution of military services and authorities on a temporary basis with the aim of having civilian rule in the country. It is generally introduced in emergencies due to internal aggression, war, or rebellion. In 2018, the President of Ukraine imposed martial law for 30 days, and then in 2022. The former President of the Philippines also imposed such a period in 2017. In the U.S. it has been declared 68 times till now.
What would happen if someone breached martial law?
If someone does not adhere to the rules and regulations made by the military authorities during the period of martial law, he will be tried in court. If the courts were not working, then the military tribunals would punish him for the same.
What are the challenges faced by local and international employers during the period of martial law in Ukraine?
Businessmen in Ukraine and employers started to shift their businesses to other parts of the country where the situation was under control. But not every business or company can be relocated. Moreover, the western regions of the country were attacked by the missiles, and the production sites of many companies were destroyed. The country faced a financial crisis due to which many employers dismissed their employees and staff, and people lost their jobs and sources of income.
References
- https://www.americanbar.org/groups/labor_law/publications/labor_employment_law_news/spring-2022/martial-law-in-ukraine/
- https://www.aljazeera.com/news/2022/2/24/martial-law-in-ukraine-what-you-need-to-know
- https://www.dentons.com/en/insights/alerts/2022/april/6/ukraine-legislative-protection-measures-during-martial-law
- https://www.ojp.gov/ncjrs/virtual-library/abstracts/martial-law-times-civil-disorder
- https://edition.cnn.com/europe/live-news/ukraine-russia-news-02-24-22-intl/h_4309a4916d57670f85519210a07fb2c9
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