What is Martial Law?

By Reganne Hardy, Staff Writer.

Photo courtesy of unsplash.com.

On February 24, 2022, Ukraine’s president Volodymyr Zelensky invoked martial law over the entire country for thirty days.[1] In President Zelenesky’s decree, the military and Ministry of Internal Affairs are to uphold the law of Ukraine to maintain public safety and Ukraine’s interests.[2] The Ministry of Internal Affairs must inform the UN Secretary-General on any restrictions to human rights and freedoms and the reasoning for the limitations.[3] The Verkhovna Rada, Ukraine’s unicameral parliament, voted to support the martial law declaration.[4]

Martial law is the substitution and suspension of civilian law for military rule.[5] During periods of martial law, the military becomes the lawmaking and enforcing governing body, replacing civilian leaders and the police with military personnel.[6] If civilians violate the law, military personnel could try civilians in military tribunals instead of traditional civilian courts.[7] Martial law is discernible from military law because military rule applies exclusively to individuals in military service.[8] Thus, only martial law governs civilians.[9]

During 1942, in the United States, Hawaii was under martial law following the Pearl Harbor attacks.[10] Under martial law, the military governed all aspects of the territory, including, but not limited to: crimes, curfews, media, and fines. [11] Harry White, a stockbroker, was arrested for embezzlement in Honolulu, Hawaii, by military police under martial law.[12] After his arrest, the military brought White before a military provost court.[13] White’s attorney questioned and objected to the military court’s jurisdiction, as the United States would not be a party to the case under civilian law.[14] His attorney then requested a jury trial, which the military court denied and sentenced White to five years in prison.[15] In this example, which the U.S. Supreme Court reversed, the implications of martial law superseded a constitutional right to a jury trial. The United States Constitution does not explicitly mention martial law, and the president lacks the authority without Congress to enact military rule.[16] Nevertheless, martial law has been employed approximately sixty-eight times in U.S. history by the state and federal government.[17]

Countries around the world have implemented martial law with various goals. For example, former President Ferdinand Marcos enacted martial law to obtain absolute rule in the Philippines in 1972.[18] Marcos permitted only one newspaper to circulate amid martial law, canceled flights, and prevented incoming overseas calls.[19] Today, the Supreme Court of the Philippines requires a review of all acts to ensure no abuse of discretion, limiting the duration and effects of martial law in 1984.[20] The Philippine Supreme Court clarified that within forty-eight hours of the proclamation of martial law by the president, Congress must vote in majority to revoke martial law. Moreover, the 1984 ratification of the Philippine Constitution affirmed that martial law did not preempt the Constitution or change jurisdiction from civil to military courts if the civil courts were able to function.[21]

Nevertheless, despite an underlying purpose of ensuring national security and civilian safety, martial law poses a threat to civilians. Foremost, even in today’s times, martial law remains largely undefined by governing bodies across the globe in terms of scope.[22] The lack of definition of martial law in governing rules means that officials must rely on history as a guiding precedent.[23] Legal scholars frame the issues with martial law, on one side, as arbitrary and military jurisdiction, and on the other hand, equal and just procedures.[24] Thus, any enactment of martial law must be careful not to impose on civilians’ rights and impede on justice while serving the interests of the country or territory.[25]

[1] https://www.ukrinform.net/rubric-defense/3411128-martial-law-imposed-in-ukraine.html

[2] Id. 

[3] Id.

[4] Id.

[5] https://www.ojp.gov/ncjrs/virtual-library/abstracts/martial-law-times-civil-disorder

[6] Id. 

[7] https://www.usatoday.com/story/news/world/2022/02/24/martial-law-ukraine-russia-attack/6925581001/

[8] https://www.law.cornell.edu/wex/martial_law

[9] Id.

[10] https://www.brennancenter.org/our-work/research-reports/martial-law-united-states-its-meaning-its-history-and-why-president-cant

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id. 

[18] https://www.officialgazette.gov.ph/featured/declaration-of-martial-law/

[19] Id.

[20] Id.

[21] Id.

[22] https://law.yale.edu/sites/default/files/documents/pdf/Intellectual_Life/ltw-dyzenhaus.pdf

[23] Id. 

[24] Id.

[25] Id.

Comments are closed.