Martial Law

Martial Law

By

S J Tubrazy

Martial Law is known to Legal Jurisprudence. It is now recognised even in other democratic countries, all over the world, governed by written or unwritten Constitutions to be imposed in a State when the civil Government fails to control the situation of law and order and calls to its aid the military to restore the country to normalcy. The Martial Law is ordinarily applied to a part of the country, but may in certain cases be applied to the entire country.

Martial Law, in the present times has acquired various senses. In its original sense it is perhaps now only identifiable in the law relating to the enforcement of discipline in the forces at home and abroad. In this sense this branch of Martial Law is now better known as "military law" and is in time of peace enforced under various statutes, such as the Army Act, the Navy Act and the Air Force Act. It derives its authority from these statutes passed by the civil lawmaking bodies. In International Law Martial Law means the powers of a military commander in war time in enemy territory as part of the jus belli. In this sense as the Duke of Wellington once said in the House of Lords it is "neither more nor less than the will of the General who commands the army".

We must distinguish clearly between Martial Law as a machinery for the enforcement of internal order and Martial Law as a system of military rule of a conquered or invaded alien territory. Martial Law of the first category is normally brought in by a proclamation issued under the authority of the civil Government and it can displace the civil Government only where a situation has arisen in which it has become impossible for the civil Courts and other civil authorities to function. The Imposition of Martial Law does not of its own force require the closing of the civil Courts or the abrogation of the authority of the civil Government. The maxim inter armes teges silent applies in the municipal field only where a situation has arisen in which it has become impossible for the Courts to function, for, on the other hand, it is an equally wellestablished principle that where the civil Courts are sitting and civil authorities are functioning the establishment of Martial Law cannot be justified. The validity of Martial Law is, in this sense, always a judicial question for the Courts have always claimed and have in fact exercised the right to say whether the necessity for the imposition of Martial Law in this limited common law sense existed.

The Proclamation of Martial Law does not by itself involve the abrogation of the civil law and the functioning of the civil authorities and certainly does not vest the Commander of the Armed Forces with the power of abrogating the fundamental law of the country. It would be paradoxical indeed if such a result could flow from the invocation in the aid of a State of an agency set up and maintained by the State itself for its own protection from external invasion and internal disorder. If the argument is valid that the proclamation of the Martial Law by itself leads to the complete destruction of the legal order, then the armed forces do not assist the State in suppressing disorder but actually create further disorder, by disrupting the entire legal order of the State. It is, therefore, not correct to say that the proclamation of Martial Law by itself must necessarily give the Commander of the armed forces the power to abrogate the Constitution, which he is bound by his oath to defend.

The Constitution of the country in such a Martial Law is not, affected. It is neither impaired in any manner nor abrogated. Martial Law is of three kinds. It is either (1) the law for the discipline and Government of the army itself ; or (2) the law by which the army in time of war governs foreign territory in its military occupation outside the realm ; or (3) the law by which in time of war the army governs the realm itself in derogation of the civil law. so far as required by military necessity and the public safety. The legality of the third kind of Martial Law and the substitution of military for civil justice within the realm itself in time of war has been the subject of much difference of opinion. It is held by some that it is never lawful, unless expressly authorised by Act of Parliament, and that the authority of the civil Courts and the civil law is absolute in time of war no less than in time of peace. According to this view the exercise of military authority withi n the realm in time of war in derogation of the civil law is always illegal, whatever moral justification for it may exist in considerations of military necessity and the public safety; in the absence of statutory sanction, either precedent, or subsequent by way of Acts of indemnity and ratification. This is not the place in which this question can be adequately discussed. It is sufficient to say that the better opinion would seem to be that even within the realm itself the existence of a state of war and of national danger justifies in law the temporary establishment of a system of military Government and military justice in derogation of the ordinary law of the land, in so far as this is reasonably deemed necessary for the public safety. To this extent and in this sense it is true tat inter arma leges silent. The formal establishment of such a system of military Government and justice in time of internal war or rebellion is commonly known as the proclamation of Martial Law . With the acts of military authorities done in pursuance of such a system the civil Courts of law will not concern themselves in time of war, and even after peace has come again, the acts so done in time of war may be justified in the civil Courts, so far as done in good faith and with reasonable cause in view of the real or apparent' necessity which gave occasion to them. In short, the legal basis of Martial Law in this third sense is simply the common law doctrine of necessity. "Jurisprudence" thus recognizes and contemplates of Martial Law in the realm in derogation of the civil law, and not by abrogation of the Constitution.

The position in England today, as mentioned in Halsbury's Laws of England, Vol. 7, Third Edition, page 260, is as follows;--

"The Crown may not issue commissions in time of peace to try civilians by martial law; but when a state of actual war, or of insurrection riot, or rebellion amounting to war, exists, the Crown and its officers may use the amount of force necessary for the circumstances to restore order, and this use of force is sometimes termed martial law. When once this state of actual war exists the civil Courts have no authority to call in question the actions of the military authorities; but it is for the civil Courts to decide, if their jurisdiction is invoked. whether a state of war exists which justifies the application of martial law. The powers, such as they are, of the military authorities cease and those of the civil Courts are resumed ipso facto with the termination of the state of war; and, in the absence of an Act of Indemnity the civil Courts may inquire into the legality of anything done during the state of war; even if there is an Act of Indemnity couched in the usual terms , malicious acts will not be protected."

From the above it is clear that we must distinguish clearly between Martial Law as a machinery for the enforcement of internal order and Martial Law as a system of military rule of a conquered or invaded alien territory. Martial Law of the first category is normally brought in by a proclamation issued under the authority of the civil Government and it can displace the civil Government only where a situation has arisen in which it has become impossible for the civil Courts and other civil authorities to function. The imposition of Martial Law does not of its own force require the closing of the civil Courts or the abrogation of the authority of the civil Government. The maxim inter armes leges silent applies in the municipal field only where a situation has arisen in which it has become impossible for the Courts to function, for, on the other hand, it is an equally wellestablished principle that where the civil Courts are sitting and civil authorities are functioning the esta blishment of Martial Law cannot be justified. The validity of Martial Law is, in this sense, always a judicial question, for, the Courts have always claimed and have in fact exercised the right to say whether the necessity for the imposition of Martial Law in this limited common law sense existed.

The American Courts from the case of Ex parte : Milligan (4 Wallace 121) decided in 1866 have consistently maintained that "Martial rule can never exist where the Courts are open, and in the proper and unobstructed exercise of their jurisdiction." (Vide Commentaries on the Constitution of the United States by Chester James Antieau).

The case of R. S. Sterling, Governor of the State of Texas v. E. Constantin (77 U S S C R 375 (L. Edn.)) also makes interesting reading. In this case the District Court of the United States for the Eastern District of Texas had passed an interlocutory order prohibiting the Governor, the AdjutantGeneral and the Commanding Officer of the Military District from enforcing their military or executive orders regulating or restricting the production of petroleum under a proclamation of Martial Law. The Supreme Court went into the question in detail on evidence first to consider as to whether there was a state of war or not and as to whether the Military Courts could adjudicate upon the rights of civilians when the ordinary Courts were functioning, and came to the conclusion that there was "no room for doubt that there was no military necessity which, from any point of view, could be taken to justify the action of the Governor in attempting to limit complainants' oil production, oth erwise lawful. There was no exigency which justified the Governor in attempting to enforce by executive or military order the restriction which the District Judge has restrained pending proper enquiry. If it be assumed that the Governor was entitled to declare a state of insurrection and to bring military force to the aid of civil authority, the proper use of that power in this instance was to maintain the Federal Court in the exercise of its jurisdiction and not to attempt to override it, to aid in making its process effective and not to nullify it, to remove, and not to create, obstructions to the exercise by the complainants of their rights as judicially declared".

In judging the validity of laws at a given time, one of the basic doctrines of legal positivism, on which the whole science of modern jurisprudence rests, requires a jurist to presuppose the validity of historically the first Constitution whether it was given by an internal usurper, an external invader or a national hero or by a popular or other assembly of persons. Subsequent alterations in the Constitution and the validity of all laws made thereunder is determined by the first Constitution. Where a Constitution presents such continuity, a law once made continues in force, until it is repealed, altered or amended in accordance with the Constitution. It sometimes happens, however, that a Constitution and the national legal order under it is disrupted by an abrupt political change not within the contemplation of the Constitution. Any such change is called a revolution, and its legal effect is not only the destruction of the existing Constitution but also the validity of the n ational legal order. A revolution is generally associated with public tumult, mutiny, violence and bloodshed but from a juristic point of view the method by which and the persons by whom a revolution is brought about is wholly immaterial, The change may be attended by violence or it may be perfectly peaceful. It may take the form of a coup d'etat by a political adventurer or it may be effected by persons already in public positions. Equally irrelevant in law is the motive for a revolution, inasmuch as a destruction of the constitutional structure may be prompted by a highly patriotic Impulse or by the most sordid of ends. For the purposes of the doctrine here explained a change is, in law, a revolution if it annuls the Constitution and the annulment is effective. If the attempt to break the Constitution fails those who sponsor or organise it are judged by the existing Constitution as guilty of the crime of treason. But if the revolution is victorious in the sense that the pa rsons assuming power under the change can successfully require the inhabitants of the country to conform to the new regime, then the revolution itself becomes a lawcreating fact because thereafter its own legality is judged not by reference to the annulled Constitution but by reference to its own success. On the same principle the validity of the laws to be made thereafter is judged by reference to the new and not the annulled Constitution. Thus the essential condition to determine whether a Constitution has been annulled is the efficacy of the change. In the circumstances supposed no new State is brought into existence though Aristotle thought otherwise. If the territory and the people remain substantially the same, there is, under the modern juristic doctrine, no change in the corpus or international entity of the State and the revolutionary Government and the new constitution are, according to International Law, the legitimate Government and the valid Constitution of the State. Thus a victorious revolution or a successful coup d'etat is an internationally recognised legal method of changing a Constitution.

Hans Kelsen, a renowned modern jurist, say;--

"From a juristic point of view, the decisive criterion of a revolution is that the order in force is overthrown and replaced by a new order in a way which the former had not itself anticipated. Usually, the new men whom a revolution brings to power annul only the constitution and certain laws of paramount political significance, putting other norms in their place. A great part of the old legal order remains valid also within the frame of the new order. But the phrase 'remains valid', does not give an adequate description of the phenomenon. It is only the contents of these norms that remain the same, not the reason of their validity. They are no longer valid by virtue of having been created in the way the old constitution prescribed. That constitution is no longer in force; it is replaced by a new constitution which is not the result of a constitutional alteration of the former. If laws which are introduced under the old constitution continue to be valid under the new constit ution, this is possible only because validity has expressly or tacitly been vested in them by the new constitution . . . . . .

The laws which, in, the ordinary inaccurate parlance, continue to be valid are, from a juristic viewpoint, new laws whose import coincides with that of the old laws. They are not identical with the old laws, because the reason for their validity is different. The reason for their validity is the new, not the old, constitution, and between the two continuity holds neither from the point of view of the one nor from that of the other. Thus It is never the constitution merely but always the entire legal order that is changed by a revolution.

(The writer is corporate and banking lawyer in Pakistan)

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