Martial Law: Can Elections Be Cancelled?

The imposition of martial law raises questions about the possibility of holding elections, with some arguing that it may impede the democratic process. In Ukraine, for instance, the Constitution declares it a democratic state, which upholds the right to hold elections even during martial law. However, the complexity of amending the Constitution under such circumstances makes it challenging to legalize wartime elections. Additionally, the European Court of Human Rights emphasizes the importance of ensuring basic human rights and freedoms through effective political democracy, which includes the right to hold free elections. These factors highlight the intricate relationship between martial law and elections, sparking discussions about the legitimacy and feasibility of elections during extraordinary times.

Elections under martial law are prohibited by the Constitution of Ukraine

Martial law was introduced in Ukraine on 24 February 2022, and it has been extended several times since then. The most recent extension was until 7 February 2025. During this time, the constitutional rights and freedoms of individuals and citizens provided for in Articles 30–34, 38, 39, 41–44, and 53 of the Constitution of Ukraine may be temporarily restricted.

One of the key implications of martial law in Ukraine is the prohibition of elections. As emphasized by Oleksiy Danilov, the Secretary of the National Security and Defense Council of Ukraine, on 16 May 2023: "No elections, neither parliamentary nor presidential, can be held during martial law." This statement was made in response to a declaration by Tiny Cox, President of the Parliamentary Assembly of the Council of Europe, about the need for Ukraine to hold parliamentary and presidential elections even under martial law.

Danilov's statement underscores the primacy of Ukraine's Constitution and laws, which do not permit elections during periods of martial rule. This position is consistent with the understanding that martial law entails significant restrictions on certain constitutional rights and freedoms, including those related to the inviolability of the home, secrecy of correspondence, non-interference in private and family life, freedom of movement, freedom of thought and speech, and property rights.

The prohibition of elections under martial law in Ukraine is a protective measure to ensure the stability and security of the nation during times of crisis. By temporarily suspending electoral processes, the government can focus on addressing immediate threats, maintaining public order, and safeguarding national interests without the potential disruptions and distractions associated with election campaigns and political transitions.

While the cancellation of elections during martial law may be necessary for Ukraine's security and governance, it also presents challenges to democratic principles and practices. Elections are a fundamental pillar of democracy, providing citizens with the opportunity to choose their representatives and hold them accountable. However, under extraordinary circumstances, such as foreign invasion or internal emergencies, nations may invoke emergency powers and temporarily suspend certain democratic processes to ensure the survival and stability of the state.

Martial law prevents changes to election procedures

The Constitution of Ukraine declares Ukraine a democratic state, which means that it must comply with the standards and principles of holding elections, even when martial law is imposed. However, under martial law, it is impossible to amend the constitution, which is a requirement for formalizing the "legitimacy" of wartime elections.

The European Platform for Democratic Elections (EPDE) emphasizes that the prohibition of elections under martial law is outlined in paragraph 4 of Article 83 of the Constitution of Ukraine. This article states that if the term of authority of the Verkhovna Rada of Ukraine expires during a state of martial law, its powers shall be extended until a new parliament is elected after the state of martial law is lifted.

The EPDE also highlights that the procedure for imposing martial law in Ukraine involves the adoption of a Presidential Decree, which must be approved by the Verkhovna Rada of Ukraine. This safeguard helps prevent the unlawful seizure of power by the president or parliament.

Additionally, the European Court of Human Rights has emphasized the importance of Article 3 of Protocol No. 1, which guarantees "the right to hold free elections at reasonable intervals by secret ballot under conditions which will ensure the free expression of the opinion of the people." This article sets a standard for the reasonable periodicity of elections, ensuring that key principles of electoral law are implemented to conduct legitimate elections.

Elections require democratic conditions to be legitimate

Elections are a cornerstone of democracy, and for them to be legitimate, certain conditions must be met. The Convention for the Protection of Human Rights and Fundamental Freedoms maintains that basic human rights and freedoms are best upheld by "an effective political democracy". This includes the right to hold free elections at reasonable intervals, by secret ballot, under conditions that ensure the free expression of the people.

For elections to be legitimate, they must be conducted in accordance with key principles of electoral law. These principles include reasonable periodicity, or the standard interval between elections, which is essential for an election to be considered legitimate. In the case of Mathieu-Mohin and Clerfayt v. Belgium, the European Court of Human Rights emphasised the importance of Article 3 of Protocol No. 1, which enshrines the principles of democracy and guarantees the right to hold free elections.

In the context of martial law, the legitimacy of elections becomes questionable. The European Platform for Democratic Elections highlights that under martial law, it is impossible to hold elections that would be recognised as legitimate and democratic by the international community. This is especially true in the case of Ukraine, which has a democratic constitution that guides the country in upholding democratic standards and principles during elections, even under martial law.

To ensure the legitimacy of elections, certain conditions must be met. Amending legislation to ensure the "legitimacy" of wartime elections would go against the spirit of the constitution and international standards. The procedure for imposing martial law, which includes checks and balances, serves as a safeguard against the unlawful seizure of power. Therefore, it is essential to uphold democratic conditions during elections, even under extraordinary circumstances, to ensure their legitimacy.

Elections are a basic human right

Elections are a fundamental aspect of democratic governments, and they are closely tied to human rights. The right to take part in public affairs, including voting and standing for election, is a cornerstone of democracies based on the will of the people. Free and fair elections are essential for upholding and promoting human rights.

The right to vote and be elected is intrinsically linked to other fundamental human rights, such as freedom of thought, expression, and peaceful assembly. These rights are outlined in international agreements like the COUNCIL OF EUROPE Convention for the Protection of Human Rights and Fundamental Freedoms, which is enforced by the European Court of Human Rights. This convention ensures that parties hold free elections at reasonable intervals by secret ballot, guaranteeing the free expression of the people's choice.

The Organization for Security and Cooperation in Europe (OSCE) and the Organization of American States (OAS) are examples of organizations that actively promote and monitor elections to uphold these democratic principles and human rights. The OSCE's Office for Democratic Institutions and Human Rights (ODIHR) and the OAS's Election Observation Missions (EOMs) are dedicated to ensuring that elections are fair and respect the fundamental rights of citizens.

In addition, quota systems have been implemented in various countries to address the under-representation of specific groups, such as women. While controversial, these systems aim to ensure that all segments of society have a voice in the democratic process, reflecting the principle that elections are a basic human right that should be accessible to all.

Martial law can be a safeguard against power seizure

While the concept of martial law is often associated with the suspension of civil authority and individual freedoms, it can also serve as a safeguard against power seizure and the protection of democratic values.

In the context of the United States, the Constitution does not explicitly grant the President the power to declare martial law. Instead, it outlines a distribution of powers between the legislative and executive branches, with Congress and the President having some control over the military. The President, as the Commander-in-Chief, has the authority to deploy the military domestically for law enforcement functions, as seen in the Insurrection Act. However, this does not equate to the power to declare martial law unilaterally.

Historically, the federal and state governments in the US have declared martial law over 60 times. While the Constitution does not define martial law, modern interpretation allows the President and state officials to declare "degrees of martial law" in specific circumstances. The power to declare martial law is a contentious issue, with scholars and legal experts debating whether the President requires congressional authorization or can act independently.

In other countries, martial law has been used as a safeguard against power seizure. For example, in Egypt, during an uprising against then-President Mubarak, he stepped down and handed control to the Supreme Council of the Armed Forces. The military's announcement stated their intention to end the State of Emergency once order was restored, indicating a temporary nature to their rule. Similarly, in South Korea, President Yoon Suk Yeol declared martial law to protect against perceived threats but was checked by the National Assembly, which voted to lift martial law, demonstrating a balance of powers.

While martial law can grant the military commander extensive authority, the examples from Egypt and South Korea illustrate how it can also serve as a safeguard against power seizure and a means to restore stability. The temporary nature of martial law in South Korea, and the transfer of power back to civilian institutions in Egypt, highlight the potential for martial law to protect democratic values and prevent the consolidation of military rule.

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