Martial Law: Can Courts Intervene?

Martial law is a controversial topic that has been invoked in various countries, including the United States, India, Indonesia, Brunei, and Bangladesh. It refers to the temporary substitution of military authority for civilian rule, typically during times of war, rebellion, or natural disaster. While the declaration of martial law grants the military commander of an area or country virtually unlimited authority, the question arises: can it be stopped by a court order? The answer is complex and depends on the specific circumstances and the functionality of civilian courts. In the United States, for example, the Supreme Court ruled that President Lincoln's imposition of martial law by suspending habeas corpus was unconstitutional where local courts were still in session. However, the president's power to declare martial law remains a contentious issue, with some arguing that it lies outside of their authority.

Martial law and the US President

In the United States, martial law may be declared by proclamation of the President or a State governor, but such a formal proclamation is not necessary. The US Constitution does not make any specific provision for the imposition of martial law, but nearly every State has a constitutional provision authorising the government to impose it.

Martial law refers to a power that, in an emergency, allows the military to supersede civilian authorities and exercise jurisdiction over the population of a particular area. Laws are enforced by soldiers, and policy decisions are made by military officers. People accused of crimes are brought before military tribunals rather than ordinary civilian courts.

The power of martial law, once considered nearly absolute, has limitations. Civilians may not be tried by military tribunals as long as civilian courts are functional. However, within the bounds of court decisions, a military commander's authority under martial law is virtually unlimited.

In the US, martial law has been declared nine times since World War II. Notably, in 1863, President Lincoln imposed Congressionally authorised martial law on Kentucky, Maryland, and Missouri. He suspended habeas corpus and civil rights throughout the entire United States. The Supreme Court later ruled that Lincoln's imposition of martial law was unconstitutional in areas where the local courts were still in session.

While the President may impose martial law, it is not without checks and balances. The courts have the power to review and overturn martial law if they deem it unnecessary or a gross usurpation of power.

Martial law in India

Martial law is the replacement of civilian government by military rule and the suspension of civilian legal processes for military powers. It is often declared in times of war, conflict, occupation, or emergencies such as civil unrest and natural disasters. It can also be declared in cases of military coups d'état, as seen in Thailand in 2006 and 2014, and Egypt in 2013.

In India, the Constitution does not explicitly mention 'martial law' except in Article 34, which gives Parliament the power to indemnify individuals for acts performed in connection with maintaining order during martial law, and to validate acts done under martial law. However, it does not outline a process for declaring martial law. Instead, India relies on constitutional emergency provisions under Article 352 (national emergency), 356 (state emergency), and 360 (financial emergency) to manage extraordinary situations.

The Supreme Court of India has ruled that certain rights, such as habeas corpus, cannot be suspended even during emergencies, indicating that any future invocation of martial law would be subject to these rights. During the British Raj, martial law was effectively declared in the Defense of India Act of 1915 and 1939, and in most of Punjab in 1919 following the Amritsar Massacre. However, India has never officially declared martial law since independence.

Martial law in Brunei

Martial law is typically imposed when there is a failure of the legal system, or a state of emergency. In the US, President Lincoln imposed martial law on three states during the Civil War, suspending habeas corpus and civil rights. The Supreme Court later ruled that this was unconstitutional where local courts were still operational.

Martial law has been declared in many countries, including Brunei, which has been under martial law since a rebellion in 1962 was put down by British troops from Singapore. The Sultan of Brunei, Sultan Haji Hassanal Bolkiah Mu'izzaddin Waddaulah, is the head of state, the Minister of Defense, and the Commander-in-Chief of the Royal Brunei Armed Forces. Brunei has a dual legal system, with a British-style common law system, and a Sharia law system. The country has a legislative council with 36 appointed members, but the Sultan holds full executive authority, including emergency powers.

Martial law can be ended by a court order, as seen in the US example, but this is dependent on the local courts being functional. In the case of Brunei, the courts are operational, and the country has a functioning legal system, so it is possible that martial law could be ended by a court order. However, the Sultan's power is absolute, and the legal system is based on English common law and Shariah law, so the likelihood of this is unclear.

The imposition of martial law in Brunei has been in place for over 60 years, and while it may be possible for it to be ended by a court order, the Sultan's absolute power and the lack of precedent for such a move make it a complex and potentially challenging prospect.

Martial law and the suspension of habeas corpus

Martial law is a dramatic departure from normal practice in the United States, where the U.S. military is ordinarily limited to assisting civilian authorities. It involves the displacement of civilian government and is distinct from other emergency powers, such as the suspension of the writ of habeas corpus. While a declaration of martial law may be accompanied by a suspension of habeas corpus, they are different concepts.

The writ of habeas corpus is a right protected by the U.S. Constitution, which states that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." This right ensures that any person under arrest can appear in person before the court to ensure that they have not been falsely accused.

The suspension of habeas corpus allows the government to detain and hold individuals without charge, but it does not imply an unusual role for the armed forces. The suspension of habeas corpus has been used in conjunction with martial law in the United States on several occasions. For example, during the Civil War, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri, and suspended habeas corpus for "prisoners of war, spies, or aiders and abettors of the enemy," as well as draft dodgers.

The Supreme Court has ruled that even under martial law, state officials are bound by the U.S. Constitution and valid federal laws. The Court has also established that declarations of martial law are subject to judicial review. Individuals detained by the military under martial law may petition for a writ of habeas corpus and challenge the declaration of martial law in federal court.

In the Ex parte Milligan case from 1866, the Supreme Court ruled that President Lincoln's imposition of martial law by suspending habeas corpus was unconstitutional in areas where local courts were still in session. This case set a precedent that martial rule cannot exist where courts are open and properly exercising their jurisdiction.

Martial law and civilian courts

Martial law is a temporary substitution of military authority for civilian rule. It is usually invoked in times of war, rebellion, or natural disaster. When martial law is in effect, the military commander of an area or country has unlimited authority to make and enforce laws, and people accused of crimes are brought before military tribunals.

In the United States, martial law may be declared by proclamation of the President or a State governor, but such a formal proclamation is not necessary. Although the U.S. Constitution makes no specific provision for the imposition of martial law, nearly every State has a constitutional provision authorizing the government to impose it. The power of martial law, once considered nearly absolute, has limitations; for example, civilians may not be tried by military tribunals as long as civilian courts are functional.

The Supreme Court of the United States has ruled on the matter of martial law and civilian courts. In Ex parte Milligan, 71 US 2 (1866), the Court ruled that President Lincoln's imposition of martial law by suspending the writ of habeas corpus was unconstitutional in areas where the local courts were still in session. The Court stated that martial rule can never exist where the courts are open and in proper exercise of their jurisdiction. This was reaffirmed in Ex parte Milligan, 5 Footnote Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), where the Court pronounced Lincoln's suspension of the writ of habeas corpus void.

In other countries, the relationship between martial law and civilian courts has also been a subject of judicial review. For example, the Court of Chancery in Ireland ruled that the Restoration of Order in Ireland Act 1920 superseded the power to declare martial law, and any sentences by military tribunals not in accordance with that Act were void. Similarly, the Supreme Court of India in Puttaswamy v. Union of India declared that certain rights of life and liberty are natural rights that cannot be curbed by the state, even under martial law.

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