Martial law
:
For other uses, see Martial law (disambiguation).Martial law is the system of rules that takes effect (usually after a formal declaration) when a
military authority takes control of the normal administration of justice.
Martial law is instituted most often when it becomes necessary to favor the activity of military authorities and organizations, usually for urgent unforeseen needs, and when the normal institutions of justice either cannot function or could be deemed too slow or too weak for the new situation; e.g., due to
war, major
natural disaster,
civil disorder, in
occupied territory, or after a
coup d'état. The need to preserve the public order during an emergency is the essential goal of martial law. However, declaration of martial law is also sometimes used by dictatorships, especially
military dictatorships, to enforce their rule.
Usually martial law reduces some of the personal rights ordinarily granted to the citizen, limits the length of the trial processes, and prescribes more severe penalties than ordinary law. In many countries martial law prescribes the
death penalty for certain crimes, even if ordinary law does not contain that crime or punishment in its system.
In many countries martial law imposes particular rules, one of which is
curfew. Often, under this system, the administration of
justice is left to a military
tribunal, called a
court-martial. The suspension of the writ of
habeas corpus is likely to occur.
Martial law was first used in Australia from midnight Sunday
4 March,
1804 during the
Castle Hill convict rebellion, also known as the second Battle of Vinegar Hill, a reference to the Irish engagement of 1798 in which many of the convicts had previously been involved. The militia were called out under the auspices of
posse comitatus to assist in suppressing the rebelling convicts. Martial law was lifted ten days later.
Though the Canadian government has never actually instated martial law, it has come close through a piece of legislation known as the
War Measures Act. This act was invoked three times, in both world wars due to riots over conscription (the
Conscription Crisis of 1917 and
Conscription Crisis of 1944) and in the
October Crisis of 1970. The War Measures Act technically does not invoke martial law, as the military does not take over the administration of justice. A better comparison would be to declaring a state of emergency. Indeed, the War Measures Act was later replaced by the
Emergencies Act in 1980.
During the
Canadian federal election, 2006, a military ad that was leaked from the incumbent Liberals' office suggested that their primary opponent, the
Conservative Party of Canada, would invoke martial law if they won. Public backlash from this was severe, and is attributed to as one of the factors to the Conservative win.
The constitution of the People's Republic of China originally granted the
National People's Congress the power to declare martial law. In
1989 Premier
Li Peng unilaterally invoked the martial law clause to allow the military to stage a crackdown on
Tiananmen Square protesters. This action proved controversial, and in
2004 the clause was finally weakened into a provision that allowed the government to simply declare a
state of emergency.
After the
Kuomintang (Nationalist) regime of the Republic of China retreated from mainland China to
Taiwan, the distinction of having the longest period of martial law in modern history was imposed on Taiwan and the
other islands administered by the Republic of China. In the aftermath of the
228 Incident of
1947, martial law was declared in
1948, and the perceived need to suppress Communist and pro-democracy activities on the island meant that the martial law was not lifted until
1987.
The state of emergency in Egypt has been imposed almost continuously since 1967. Due to the assassination of
President Anwar el-Sadat in
1981, martial law was declared in Egypt. Egypt has been under martial law ever since - the Parliament has renewed the emergency laws every three years since they were imposed. The legislation was last extended in 2003 and was due to expire at the end of May 2006; plans were in place to replace them with new anti-terrorism laws but after the
Dahab bombings in April martial law was renewed for another two years. [
1] [
2]
Martial law allows the government to detain anyone deemed to be threatening state security for renewable 45-day periods without court orders and also give military courts the power to try civilians.
Public demonstrations are banned under the legislation.
Northern Ireland declared martial law several times during the
Troubles.
Martial law has been declared in Pakistan several times. In the first instance, On October 7, 1958, President
Mirza abrogated the Constitution and declared Martial Law in the country. The most recent martial law declaration came from Gen.
Pervez Musharraf as he took over the government of the country on
October 12, 1999.
The Philippines was under the rule of martial law from
1972 to
1981 under the authoritarian rule of
Ferdinand Marcos. Martial law was declared to quell increasing civil strife and the threat of communist takeover following a series of bombings in
Manila. The declaration of martial law was initially well-received, but became unpopular as excesses and human rights abuses by the military emerged. Torture was used in extracting information to their enemies.
Martial law was introduced in Poland by the Communist government on December 13, 1981 to prevent democratic movements from gaining popularity and political power in the country.
There are no provisions for martial law as such in
Switzerland. Under the
Army Law of
1995 [
3], the
Army can be called upon by
cantonal (state) authorities for assistance (
Assistenzdienst). This regularly happens in the case of natural disasters or special protection requirements (e.g., for the
World Economic Forum in
Davos). This assistance generally requires parliamentary authorisation, though, and takes place in the regular legal framework and under the civilian leadership of the cantonal authorities. On the other hand, the federal authorities are authorised to use the Army to enforce law and order when the Cantons no longer can or want to do so (
Ordnungsdienst). This power largely fell into disuse after
World War II.
See [4].
In January of 2004, the current Prime Minister of Thailand,
Thaksin Shinawatra, declared a state of martial law in the provinces of
Pattani,
Yala, and
Narathiwat in response to the growing
South Thailand insurgency.
The martial law concept in the U.S. is closely tied with the Writ of
habeas corpus, which is in essence the right to a hearing on lawful imprisonment, or more broadly, the supervision of law enforcement by the judiciary. The ability to suspend habeas corpus is often equated with martial law. Article 1, Section 9 of the
U.S. Constitution states, "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."
In
United States law, martial law is limited by several court decisions that were handed down between the
American Civil War and
World War II. In
Ex parte Milligan 71 US 2
1866, the
Supreme Court of the United States held that martial law could not be instituted within the United States when its civilian courts are in operation. In
1878,
Congress passed the
Posse Comitatus Act, which forbids military involvement in domestic law enforcement without congressional approval. The
National Guard is an exception, since unless federalized, they are under the control of state governors. [
5]
The
Tennessee Constitution outlaws martial law within its jurisdiction. This may be a result of the experience of Tennessee residents and other Southerners during the period of military control by Union (Northern) forces of the US government after the
American Civil War.
During
World War II (
1941 to
1944) what is now the
State of Hawaii was held under martial law.
During the
War of 1812, U.S. General
Andrew Jackson imposed martial law in
New Orleans,
Louisiana after capturing the encampment of New Orleans from the British in the
Battle of New Orleans.
=
Contrary to many media reports at the time, martial law was
not declared in New Orleans in the aftermath of
Hurricane Katrina, because no such term exists in Louisiana state law. However, a
state of emergency was declared, which
does give unique powers to the state government similar to those of martial law. On the evening of
August 31,
2005, New Orleans Mayor
Ray Nagin nominally declared "martial law" and said that "officers don't have to worry about
civil rights and
Miranda rights in stopping the looters." Federal troops were a common sight in New Orleans after Katrina. At one point, as many as 15,000 federal troops and National Guardsmen patrolled the city to curb its descent into chaos and looting.
Nearly 10 months after Hurricane Katrina, National Guard troops returned to the city of New Orleans. After six deaths (including those of five teenagers in one shooting incident) over a single weekend in June, Mayor C. Ray Nagin asked Louisiana Gov. Kathleen Babineaux Blanco at a news conference the following Monday to send a contingent of National Guard troops and state troopers. One day after the request, 100 troops arrived in the city with 200 more troops promised to arrive quickly. Sixty state troopers were deployed.
= Controversy
=
Debate exists in regard to the legality of a Presidential decree of martial law, due to recent pronouncements from the Bush Administration and national security initiatives that were put in place in the Reagan era. When president
Ronald Reagan was considering invading
Nicaragua, he issued a series of executive orders that provided the
Federal Emergency Management Agency with broad powers in the event of a crisis such as violent and widespread internal dissent or national opposition against a U.S. military invasion abroad. To date, these powers have never been used but with the
2003 Invasion of Iraq,
2006 U.S. immigration reform protests and the possibility of
avian flu spreading globally, concerns have been raised that these powers could be employed or a de facto drift into their deployment could occur.
In addition, from 1982-84 Colonel
Oliver North assisted FEMA in drafting its civil defence preparations. Details of these plans emerged during the 1987
Iran-Contra scandal. They included executive orders providing for suspension of the constitution, the imposition of martial law, internment camps and the turning over of government to the president and FEMA. FEMA, whose main role is disaster response, is now also responsible for handling U.S. domestic unrest. With recent proposals to criminalise illegal and undocumented immigrants, the United States saw itself immersed in a debate at the end of March and beginning of April about these laws and the role of immigration post-
September 11th.
A
Miami Herald article on July 5, 1987, reported that the deputy of former FEMA director
Louis O. Giuffrida, John Brinkerhoff, handled the martial law portion of the planning. The plan was said to be similar to one titled "
Rex 84", which Mr. Giuffrida had developed earlier to combat a national uprising by black militants. It provided for the detention of at least 21 million African-Americans in assembly centers or relocation camps. Following a request by the Pentagon in January, 2002, that the U.S. military be allowed the option of deploying troops on American streets, the Anser Institute for Homeland Security in February, 2002, published a paper by current-employee Mr. Brinkerhoff that argued the legality of this. He alleged that the
Posse Comitatus Act of 1878, which has long been accepted as prohibiting such deployments, had simply been misunderstood and misapplied. The preface to the article also provided the revelation that the national plan he had worked on, under Mr. Giuffrida, was approved by Reagan, and actions were taken to implement it.
The full facts and final contents of Reagan's national plan remain uncertain, in part because President Bush took the unprecedented step of sealing the Reagan presidential papers in November of 2001 via
Executive Order 13233. The papers in question, some dealing with Reagan-era officials who now have high posts in the Bush administration, were to have been disclosed under the 1978 Presidential Records Act, which said that the documents could be restricted at the most for 12 years after Reagan left office.
See also "What Is Martial Law? And is New Orleans under it?" by the Slate Explainer.
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Military law (law to which members of the military are subject)
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Military rule*
State of emergency*
Martial law in Poland*
Martial law in Thailand in 2005*
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