Monday, Sep. 25, 1978
An Outbreak of Martial Law
The problem of maintaining order--but not too much
In countries as diverse as Iran, Nicaragua and Rhodesia, the first response of the three beleaguered governments to civil emergencies this month was to impose martial law. In Rhodesia this meant little, since the country had been under military control since the guerrilla war began six years ago. In Iran the Shah's declaration brought a clampdown on civil liberties and empowered the army to arrest without charges and to invade homes without warrants. In Nicaragua martial law merely underscored Anastasio Somoza's desperate situation. Said a Managua businessman: "Martial law here is simply a license to kill."
Though definitions vary, martial law means far more than simple military rule. In most cases it is a response to a national or regional emergency during which constitutional guarantees are suspended and civilian control is superseded by that of the military. Martial law is generally more serious than a state of emergency or a state of siege, and more comprehensive than a suspension of habeas corpus or an imposition of preventive detention. It is both a political and a psychological device, which implies that authority begins at the trigger of a gun. In effect, says Farooq Hassan, a Pakistani legal scholar now teaching at American University in Washington, B.C., "martial law is a political weapon to show the public that, no matter how unpopular the regime in power, it still has the support of the army."
In Britain, martial law was abolished in 1628, though in modern times the government has occasionally invoked emergency regulations, particularly in the colonies--"in accordance," as one British legal expert put it, "with the standard of civilization of the states involved." Thus district commissioners sometimes had the power to administer justice, and preventive detention laws became part of the heritage of colonialism. Emergency powers, first enacted in 1920, were given the army in Northern Ireland in 1973. But at home the British did not use martial law even during the worst days of the World Wars. Their view, at least since 1628, has been that governments must have the power to maintain order, but preferably no more power than necessary.
In the U.S., martial law is not specifically mentioned in the Constitution. President Washington chose to limit the use of military power when, after dispatching troops to quell the Whisky Rebellion of 1794, he ordered all insurgents to be turned over to civil rather than military courts for trial. But during the Civil War, as he struggled to hold the nation together, President Lincoln introduced preventive detention and military justice for thousands who opposed the war, including hundreds arrested in the bloody Draft Riots in New York City and elsewhere. This amounted to an imposition of martial law. In a landmark judgment, Chief Justice Roger Taney threw out the case of one John Merryman, a Southern sympathizer who had been convicted of treason by a military court. Merryman appealed to Justice Taney, who found that Lincoln had sought to suspend habeas corpus when it was "perfectly clear under the Constitution that he had no such power." In a subsequent Civil War case, the Supreme Court found that the military had had no business trying a political agitator named Lambdin Milligan in Indiana when civil courts were functioning in the area at the time.
Third World governments use a variety of names for their emergency powers. The Philippines has had full martial law since 1972, when President Ferdinand Marcos arrested hundreds of opponents and began to rule by decree. Marcos recently told a group of international lawyers that his people were more concerned about food than freedom anyway. "The bottom line of that argument," observes New York University Law School Professor Thomas Franck, "is that the suspension of political rights is a way to increase economic rights." So far, martial law has kept Marcos in power and accomplished not a great deal more. "The trouble with martial law," laments a Filipino dissident who originally supported Marcos, "is that there is no recourse."
South Korea's Park Chung-Hee has twice used martial law as a means of crushing dissent. Taiwan has never done so, but under a 30-year-old state of emergency the government can detain suspected opponents and try them in secret military courts. During the first year of Chile's state of siege following the 1973 overthrow of Marxist President Salvador Allende, an estimated 33,000 people disappeared or were killed. Pakistan is ruled by a "martial law administrator," General Zia ul-Haq, though his ministries are now headed by civilians. Nigeria, Ghana and Sudan all have military regimes, but normal legal institutions are still working. Even in Idi Amin's Uganda, civilian courts operate, though judges ruling contrary to Big Daddy's wishes could well end up floating down the Nile.
The concept of martial law has meaning only when applied to a country that pays at least theoretical respect to the protection of human rights. In China there is no martial law, but neither does the populace enjoy most of the rights that could be jeopardized by martial law. In the Soviet Union, civilian authority as embodied in the Communist Party is all-powerful. The country has an intricate court system, and much attention is paid to what is called "socialist legality," but this is not to be confused with the Western concept of the rule of law. As the founder of Stalin's legal system, Andrei Vyshinsky, wrote in 1937: "The formal law is subordinate to the law of the Revolution." This helpful dictum enables the party to interfere selectively with the legal process, but what occurs is not called martial law. Thus, while the Soviet constitution enshrines most basic human rights, reality is quite another matter. "I was in Prague when the Soviets arrived in 1968," recalls Professor Hassan. "I saw people throw tomatoes at tanks. Where force is, the law can do nothing." qed
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