Gavin Howe
Martial law is the temporary substitution of civilian government with military rule, which can be implemented in stages, and is usually declared in times of war, civil unrest, natural disaster, or other emergencies. Despite being declared more than 60 times in U.S. history, there is still confusion and debate surrounding the exact definition of martial law, how it can be declared, and by whom. This paragraph will explore the conditions under which martial law can occur, as well as the legal ambiguities surrounding its declaration.
| Characteristics | Values |
|---|---|
| Who can declare martial law | The president, Congress, a state governor, or a local military commander |
| Who cannot declare martial law | The president (according to some sources) |
| Who can challenge a declaration of martial law | Individuals can challenge a state declaration of martial law by seeking injunctive relief in federal court |
| Who can be placed under martial law | A state or territory |
| Who cannot be placed under martial law | An individual state, without the federal government also being placed under martial law |
| When martial law can be declared | In times of war, rebellion, civil unrest, natural disaster, or other emergencies |
| When martial law cannot be declared | When the president acts against Congress's will, unless the Constitution gives the president "conclusive and preclusive" power |
| What martial law entails | The military takes the place of the civilian government and exercises jurisdiction over civilians in a particular area |
| What martial law does not entail | The suspension of constitutional rights |
| What happens when martial law is in effect | The military commander of an area or country has unlimited authority to make and enforce laws |
| Where martial law has been declared | Bangladesh, Thailand, Egypt, China, Poland, Germany, Japan, the US, Canada, Switzerland, Syria, and more |
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What You'll Learn
Who can declare it
The power to declare martial law varies across different nations. In the United States, the president does not have the authority to declare martial law. State officials, such as a State governor, have the power to declare martial law, but their actions must abide by the U.S. Constitution and are subject to review in federal court. The Supreme Court has held that individual states have the power to declare martial law, and such a declaration is valid if it is authorised by the constitution or laws of the state.
In the history of the United States, martial law has been declared more than 60 times, mostly by state and local officials. However, the president has the authority to deploy troops to assist civilian law enforcement.
In Canada, the War Measures Act was a statute that allowed the government to assume emergency powers, although the military did not administer justice, which remained in the hands of the courts. This act was invoked during World War I, World War II, and the October Crisis of 1970. In 1988, the act was replaced by the Emergencies Act, which was first invoked in February 2022 during the Freedom Convoy protests.
In India, Article 34 of the constitution gives Parliament the power to indemnify persons in territories where martial law was in force. During the British Raj, martial law was declared in the Defense of India Act of 1915 and 1939, and in most of Punjab in 1919 following the Amritsar Massacre.
In China, martial law in the Beiyang government can be traced back to the Qing dynasty. The Provisional Government of the Republic of China promulgated the Provisional Constitution in 1911, which authorised the President to declare martial law in times of emergency.
In Pakistan, the government has implemented martial law to enforce its rule over the public.
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What it entails
Martial law is a substitution of civilian government with military rule, where the military is given the power to enforce laws and take over jurisdiction over civilians in a particular area. It involves the temporary replacement of civilian authority with military authority and is usually invoked in times of war, rebellion, civil unrest, natural disaster, or other emergencies.
When martial law is in effect, the military commander of an area or country has unlimited authority to make and enforce laws, and standard civil liberties may be suspended. This includes the right to free movement, free speech, or protection from unreasonable searches. The justice system that typically handles issues of criminal and civil law is replaced with a military justice system, and civilians may be arrested for violating curfews or minor offenses that would not typically result in detention. Martial law may also result in the suspension of laws relating to habeas corpus, which are designed to prevent unlawful detention, allowing the military to detain individuals indefinitely.
Martial law can be declared by a country's president, a state governor, or, in limited emergencies, by a local military commander. While the exact process for declaring martial law varies by country and legal system, it often requires a formal proclamation or authorization by the government. In the United States, for example, martial law has been declared more than 60 times, mostly by state and local officials, and is subject to judicial review by federal courts.
While martial law grants emergency powers to the executive branch of the government, it does not allow for the suspension or violation of constitutional rights. Individuals can challenge a declaration of martial law and petition for the protection of their rights through legal avenues, such as seeking injunctive relief or filing a writ of habeas corpus.
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Where it has been declared
Martial law has been declared in the United States at least 68 times. Notable instances include:
- New Orleans, Louisiana, from December 12, 1814, to March 13, 1815, during the Battle of New Orleans.
- Hawaii, from December 7, 1941, to October 24, 1944, following the Japanese attack on Pearl Harbor.
- Kentucky, from July 5, 1864, to October 12, 1865, during the U.S. Civil War.
- Utah Territory, from September 15, 1857, to June 12, 1858, during the Utah War between Mormon settlers and the U.S. government.
- West Virginia, from 1920 to 1921, during the West Virginia Coal Wars, where striking miners were imprisoned without trial.
Outside of the United States, martial law has been declared in:
- Germany, in 1933, following the Reichstag fire, which paved the way for Nazi dictatorship.
- The Philippines, in 1972, under the rule of Ferdinand Marcos.
- South Korea, in recent years, sparking discussions about the potential for similar actions in the United States.
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Why it is declared
Martial law is the temporary replacement of civilian government by military rule, and the suspension of civilian legal processes for military powers. It is usually declared in times of war, civil unrest, natural disasters, or other emergencies. It can also be declared in the case of a military coup d'état.
Martial law is often a last resort to restore stability when civilian authority has ceased to function, is completely absent, or has become ineffective. It can be used by governments to enforce their rule over the public, as seen in multiple countries. For example, in 2006 and 2014 in Thailand, and in 2013 in Egypt, martial law was implemented after a coup d'état. Martial law was also imposed in China during the Tiananmen Square protests of 1989 to suppress popular protest, and in Poland in 1981 to suppress political opposition.
In the United States, martial law may be declared by proclamation of the President, Congress, or a State governor, but such a formal proclamation is not necessary. State officials do have the power to declare martial law, but their actions must abide by the U.S. Constitution and are subject to review in federal court. The first time martial law was declared in the U.S. was in New Orleans by General Andrew Jackson during the War of 1812. It has also been declared in Hawaii, Idaho, and numerous other states.
While there is no universal definition of martial law, it generally involves the suspension of civil liberties, such as the right to free movement, free speech, or protection from unreasonable searches. The justice system that typically handles criminal and civil law is replaced with a military justice system, and civilians may be arrested for violating curfews or minor offenses.
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How it can be challenged
Martial law is the temporary replacement of civilian government by the military and the suspension of civilian legal processes for military powers. It is often declared in times of war, rebellion, civil unrest, or natural disasters. While it has been declared frequently throughout history, the exact scope and limits of martial law remain elusive and unclear.
In the United States, the President does not have the authority to declare martial law. While the President has the power to deploy troops to assist civilian authorities, there are no federal statutes that authorise the President to declare martial law. This power lies with Congress, which may authorise a presidential declaration of martial law. However, this has not been conclusively decided.
State officials do have the power to declare martial law, but their actions must abide by the U.S. Constitution and are subject to review in federal court. Individuals can challenge a state declaration of martial law by seeking injunctive relief in federal court. If they are detained, they can also petition for a writ of habeas corpus, which is the right to a hearing on lawful imprisonment.
The Supreme Court has ruled on the use of martial law, holding that states can declare martial law, but it has never specifically held that the President can. One example is Ex parte Milligan, where 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.
The legal theory most frequently associated with martial law is the common law doctrine of necessity, which holds that martial law can be justified when civilian authority has ceased to function or become ineffective. However, the lack of a clear definition of martial law and the sparse and confusing legal precedent make it a complex and unsettled area of law.
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Frequently asked questions
Martial law is the replacement of civilian government with military rule and the suspension of civilian legal processes for military powers. It is usually declared in times of war, civil unrest, natural disasters, or military coups.
In the US, martial law may be declared by the President, a State governor, or, in limited emergencies, by a local military commander. State officials have the power to declare martial law, but their actions must abide by the US Constitution and are subject to review in federal court. The President does not have the authority to declare martial law.
When martial law is in effect, the military commander of an area or country has unlimited authority to make and enforce laws. Civil liberties such as the right to free movement, free speech, and protection from unreasonable searches can be suspended. The justice system that typically handles issues of criminal and civil law is replaced with a military justice system.
Yes, individuals can challenge a state declaration of martial law by seeking injunctive relief in federal court. If they are detained, they can petition for a writ of habeas corpus.
