Cameron Miranda
The ability to declare martial law varies across different countries and political systems. In the United States, the president does not have the authority to declare martial law, and such a declaration would violate the Posse Comitatus Act. Instead, the power to declare martial law rests with Congress and state officials, although the exact scope and limits of this power are unclear due to sparse and confusing legal precedent. In other countries, such as Pakistan, Iran, and South Korea, generals or military leaders have played a role in declaring or enforcing martial law, sometimes in collaboration with civilian authorities.
Can a General Declare Martial Law?
| Characteristics | Values |
|---|---|
| Who can declare martial law? | This varies by country and legal system. In the US, state officials can declare martial law, but the president cannot. In Pakistan, the president can declare martial law. In the UK, the monarch can declare it. |
| What does it mean? | Martial law occurs when the military temporarily substitutes its authority for civilian authority. |
| What does it look like in practice? | The military takes over a civilian area and imposes its own rules. |
| What is the legal basis? | The legal basis for martial law is often unclear and varies by country. In the US, Congress may be the only governmental branch that can legally declare martial law. In Pakistan, the president can depose the government and assume the presidency. |
| What is the history? | Martial law has been declared at least 68 times in the US. It was also declared in the UK during the British Raj, in 1915 and 1939, and in Pakistan in 1958. |
| What are the limits? | Martial law is meant to be temporary and is limited in duration. It is also confined to the locality of actual war. |
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What You'll Learn
Martial law in the US
In the United States, martial law has been imposed at least 68 times, mostly in limited, local areas. The power to declare martial law is not held by the president, but by state officials, and their actions under the declaration must abide by the U.S. Constitution and are subject to review in federal court. The Constitution gives Congress the authority to regulate the domestic deployment of the military, and Congress has enacted comprehensive legislation in that area. This legislation does not include authorization for the president to impose martial law, so the president has no power to do so.
The Posse Comitatus Act creates a general rule that it is unlawful for federal military forces to engage in civilian law enforcement activities without express authorization from Congress. The act nominally allows for constitutional exceptions, but none exist. As such, a presidential declaration of martial law would directly violate the act.
There have been many instances of the use of the military within the borders of the United States, such as during the Whiskey Rebellion, President Lincoln's suspension of habeas corpus in 1861, and in the South during the Civil Rights Movement. However, these acts are not considered a declaration of martial law.
Martial law has been declared in the U.S. twice for war or invasion, seven times for domestic war or insurrection, eleven times for riot or civil unrest, 29 times for labor dispute, four times for natural disaster, and fifteen times for other reasons. Notable examples include:
- Virginia (1775) — Lord Dunmore, the royal governor of Virginia, declared martial law, offering freedom to indentured servants and enslaved individuals who joined British forces against the rebelling colonists.
- New York (1776) — After the British capture of New York City, martial law was imposed to restore order and assert British authority.
- Chicago (1871) — In response to the Great Chicago Fire, Chicago mayor Roswell B. Mason declared a state of martial law and placed General Philip Sheridan in charge of the city.
- Spokane (1917) — The Spokane office of the Industrial Workers of the World was raided, leaders were arrested, and martial law was declared.
- San Francisco (1906) — Following the 1906 earthquake, federal troops were pressed into martial law service.
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State vs federal power
The power to declare martial law varies between states and the federal government in the United States. The Constitution does not explicitly define martial law, and its historical application has defined its use and limits. Generally, it refers to the military temporarily assuming authority in place of civilian powers.
State Power
State officials have the power to declare martial law, as seen in multiple instances across history. For example, in 1814, General Andrew Jackson, who later became President, declared martial law in New Orleans to defend against a British invasion. In 1871, Chicago Mayor Roswell B. Mason declared martial law after the Great Chicago Fire, placing General Philip Sheridan in charge of the city. In 1922, Governor Morgan of West Virginia declared martial law, which was later partially invalidated by the state's Supreme Court. In 1935, Governor Robert L. Cochran of Indiana declared martial law during a strike to end the violence and force arbitration.
Federal Power
The power of the federal government to declare martial law is less clear. The Constitution gives Congress the authority to regulate the domestic deployment of the military, but this does not include explicit authorization for the President to impose martial law. While Congress may be able to authorize a presidential declaration, this has not been conclusively decided. The Supreme Court has also never held that the federal government can impose martial law. The Posse Comitatus Act, which governs the use of the military in civilian law enforcement, does not provide an exception for the President to declare martial law.
In conclusion, while state officials have historically declared martial law, the federal government's power to do so is less certain. The Constitution grants Congress the authority to regulate the military's domestic deployment, but the President's ability to declare martial law without congressional authorization remains ambiguous. The Supreme Court has not provided a conclusive decision, and the Posse Comitatus Act does not provide a clear exception. Therefore, the power to declare martial law primarily rests with state officials, while the federal government's role is less defined and subject to legal interpretation.
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Martial law in Pakistan
Martial law has been imposed four times in Pakistan since its independence from the British Government in 1947. The country has been under army rule for almost half of its existence as an independent state.
The first imposition of martial law in Pakistan occurred on 7 October 1958, when President Iskander Mirza declared martial law and appointed General Muhammad Ayub Khan as the Chief Martial Law Administrator. However, General Ayub questioned the government's authority before the imposition of martial law and deposed Iskander Mirza just three weeks later, assuming the presidency and formalising the militarisation of the Pakistani political system. In 1962, a new constitution was adopted, and martial law was lifted in 1962 when General Ayub handed power back to a civilian government.
The second imposition of martial law in Pakistan took place on 25 March 1969, when President Yahya Khan, the Army Chief, abrogated the 1962 Constitution and assumed all powers. He dissolved the assemblies and selected three members as chairmen, issuing provisional constitution orders.
The third imposition of martial law occurred on 25 July 1977, by General Zia ul Haq. All political parties were banned, and national and provincial assemblies were dissolved.
The fourth imposition of martial law in Pakistan began on 12 October 1999, by General Pervez Musharraf, who dissolved all assemblies. This period of martial law is considered the worst and longest in the country's history. General Musharraf suspended the constitution, sacked the Chief Justice of the Supreme Court, and removed other judges. He began arresting lawyers, politicians, and human rights activists, and suppressed protests. He ruled as an army general until 2002 and then served as President until 2008.
The imposition of martial law in Pakistan has often been accompanied by the dissolution of assemblies, suspension of the constitution, and the suppression of political opposition. The country's history of martial law has been characterised by the concentration of power in the hands of military leaders, often resulting in the erosion of democratic institutions and processes.
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Martial law in the UK
Martial law is the replacement of a civilian government by military rule and the suspension of civilian legal processes in favour of military powers. It is often declared in times of war, emergencies, civil unrest, natural disasters, or military coups.
In the United Kingdom, the term "martial law" first appeared in the 1530s during the reign of King Henry VIII. At that time, and for centuries afterward, martial law generally referred to what is now called "military law". The sorts of measures typically defined as "emergency powers" first found expression in the UK through the 1914 Defence of the Realm Act, the 1920 Emergencies Act, and the 1939 War Powers Act. These Acts drew substantial lineage from the concept of "martial law", both at home and in Britain's colonial territories, exercised through the royal prerogatives of the Crown.
During the British Raj, martial law was effectively declared in the Defence of India Act, 1915 and the Defence of India Act, 1939. It was also declared in most of the Punjab during 1919 as a response to tensions caused by the Amritsar Massacre. In 1916, during the Easter Rising, Lord Wimborne, the Lord Lieutenant of Ireland, declared martial law to maintain order in the streets of Dublin.
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Martial law and the Constitution
The concept of martial law has a long and complex history, with the term first appearing in England during the 16th century. While the specifics of martial law have evolved over time, it generally refers to the temporary substitution of civilian authority with military authority. This often involves the deployment of troops and the enforcement of military rules and order. In the United States, the question of who can declare martial law has been a subject of debate and legal scholarship.
The Constitution of the United States, specifically Article II, Section 2, Clause 1, does not explicitly define or address martial law. However, the Constitution grants Congress the authority to regulate the domestic deployment of the military, and Congress has enacted comprehensive legislation in this area. The interpretation of this legislation suggests that it does not include authorization for the president to impose martial law unilaterally. This interpretation is further supported by the Posse Comitatus Act, which does not provide any exceptions for the president to declare martial law.
While the president is not authorized to declare martial law, state officials, including governors and state assemblies, have the power to do so within their respective states. For example, the Rhode Island General Assembly declared martial law during "Dorr's War," which was upheld by the Supreme Court in Luther v. Borden (1849). Additionally, governors in various states, such as Indiana, Iowa, Minnesota, Nebraska, and West Virginia, have declared martial law during periods of civil unrest, labour disputes, or natural disasters. These declarations were typically made in collaboration with state militias or the National Guard.
The role of the military in enforcing martial law is crucial, and their actions must abide by the Constitution and are subject to judicial review. The Supreme Court has played a significant role in interpreting the use of martial law and the limits of executive power. However, it is important to note that the historical use of martial law in the United States is not always well-documented, and the legal framework surrounding it remains complex and evolving.
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Frequently asked questions
Yes, there are several instances in history where generals have declared martial law. However, it is important to note that the laws surrounding martial law vary across different countries and states.
In 1958, General Muhammad Ayub Khan deposed President Iskander Mirza of Pakistan and assumed the presidency, which formalized the militarization of the political system in the country. In 1978, Shah Mohammad Reza Pahlavi of Iran appointed General Gholam Ali Oveisi as the military governor of Tehran, effectively declaring martial law in the capital and several other cities. In 1814, General Andrew Jackson, who later became the seventh President of the United States, declared martial law in New Orleans during the War of 1812.
The laws regarding a president's power to declare martial law vary across different countries. In the United States, it is generally understood that the President does not have the authority to declare martial law. This is because the Posse Comitatus Act prohibits federal military forces from participating in civilian law enforcement activities without express authorization from Congress. However, there are differing opinions among scholars, and the specific laws and interpretations can be complex and unsettled.
