Martial Law, Emergency Doctrines, Official Lawlessness and Judicial Complicity

In addition to whatever emergency legislation is in place, and regardless of any limits supposedly placed on governments by that legislation, the English-derived common law provides considerable scope for dictatorial measures.

Firstly, the common law has been prepared to support recourse to the imposition of martial law, which is, in essence, the suspension of law altogether. Martial law declarations can pave the way for extensive military powers, including the right to summarily try and execute individuals, in order to put down civil unrest.

Secondly, over the past few centuries, the courts have developed the doctrines of revolutionary legality and necessity to justify draconian government actions or ‘successful’ revolutions that become new legal orders. It is beyond the scope of this book to fully explore these doctrines, but a brief examination is needed.

Thirdly, courts have recognised indemnities, immunities from prosecution and defences, such as self-defence and ‘reasonable use of force’.

Fourthly, courts have protected governments from punishment for official lawlessness – acts of surveillance, harassment, violence or intimidation undertaken in the name of defending the state.

Martial Law

After the final defeat of the absolute monarchy in 1688 and up until the nineteenth century, martial law was regarded as an emergency suspension of the rule of law, strictly confined to cases of necessity in times of war, not in times of peace when ordinary courts were open (Capua 1977). Yet, this view seemed to shift somewhat during the nineteenth century.

At the beginning of that century, Blackstone conceded that the rules regarding the power to declare martial law were unclear and capricious. Writing in 1809, he said martial law was ‘built upon no settled principle, but is entirely arbitrary in its decisions’. Indeed, it was ‘in truth no law but something rather than allowed as law, a temporary excrescence bred out of the distemper of the state’ (Blackstone 2001: 413).

To justify this view, Dicey drew a dubious distinction between two types of martial law. One, martial law, ‘in the proper sense of that term’, meant the suspension of law and the government of a country or regions by military tribunals. This kind of martial was ‘unknown to the law of England’, and that was ‘an unmistakeable proof of the permanent supremacy of the law under our constitution (Dicey 2005: 182, 183). Yet there was another meaning of martial law: the power of the government or citizens to ‘maintain public order, at whatever cost of blood or property may be necessary’ (Dicey 2005: 187). Pollock likewise stated: ‘So-called “martial law”, as distinct from military law, is an unlucky name for the justification by the common law of acts done by necessity for the defence of the Commonwealth when there is war within the realm’ (Pollock 1902: 156). Pollock’s view of martial law was more expansive than Dicey’s. Pollock insisted that necessity, as determined by government, would make nearly all actions taken under martial law legal and immune from any subsequent challenge in the courts.

Halsbury’s Laws of England states that martial law applies ‘when a state of actual war, or of insurrection, riot, or rebellion amounting to war, exists’ (Hailsham 1973: vol. 8(2), para. 821). Other authorities contend that a modified form of martial law can be declared in cases of internal insurrection or disorder that is beyond the power of the civil authorities to quell, applying the same test of necessity as applies to ‘military aid to the civil power’ (Wade and Phillips 1970: 409; Dicey 2005: 543). It seems to have been accepted that martial law allows the creation of military tribunals to administer summary justice (Ewing and Gearty 2000: 362–3).

Doubt remains as to the legal basis of martial law. It is said to be either an example of a common law right to employ force to repel force or, alternatively, a royal prerogative (Hailsham 1973: vol. 8(2), para. 821). Those contending that the royal prerogative has never been abolished can point to several eighteenth- and nineteenth-century Acts passed by parliament to suppress opposition to British rule in Ireland. They stipulated that ‘nothing in this act contained shall be construed to take away, abridge or diminish, the acknowledged prerogative of his Majesty, for the public safety, to resort to the exercise of martial law against open enemies or traitors’ (Campbell 1994: 127–8).

Regardless of this fundamental uncertainty about the doctrinal basis for martial law, the Privy Council in the 1902 Marais case, on appeal from Britain’s Cape Colony, extended the power to declare martial law to even where the ordinary civilian courts were still sitting (D.F. Marais v The General Officer Commanding the Lines of Communication and the Attorney-General of the Colony [1902] AC 109). Their Lordships ruled that the Boer War was still underway, and this meant that the military authorities had unreviewable and hence untrammelled powers. They stated: ‘[O]nce let the fact of actual war be established, and there is an universal consensus of opinion that the civil courts have no jurisdiction to call in question the propriety of the action of military authorities’ ([1902] AC 109, 110–12).

Even more revealing was the massacre of anti-British colonial protesters in Amritsar, India, in 1919. Martial law was proclaimed and Brigadier-General Rex Dyer ordered his troops to open fire on 20,000 people who had gathered in defiance of regulations that prohibited meetings of more than four men (Simpson 2004: 64–6). The crowd was trapped within the walls of a meeting ground. Around 380 were killed and more than 15,000 wounded. Numerous in-camera trials followed, at which 180 people were sentenced to death and 264 to transportation for life. A committee of inquiry rejected Dyer’s justification that the massacre was necessary to intimidate potential unrest elsewhere and he was condemned by the House of Commons, though not by the House of Lords (Simpson 2004: 64–6). Predictably, Dyer was never prosecuted, only invalided out of the army (Ferguson 2004: 276–9). According to Simpson, the committee might have adopted a Diceyan theory, according to which Dyer and others were ‘personally liable, and risked trial and indeed conviction for murder’ but there was ‘no real sense in which this was or could ever be done’ (Simpson 2004: 66). Simpson cited other examples of martial law and military brutality in Palestine, Egypt and South Africa (Simpson 2004: 62–71).

Martial law fell into disuse in Britain (but not its Irish colony) and most other ‘advanced’ countries during the twentieth century, usually replaced by more statutory forms of emergency or repressive powers (Simpson 2004: 69–71). Nevertheless, it remains in reserve. Martial law is still loosely described as ‘the right to use force against force within the realm in order to suppress civil disorder’ (Heuston 1964: 152). This formulation could justify dictatorial measures.

According to de Smith (a leading late twentieth-century authority on English constitutional and administrative law), if martial law arises, it is generally thought that the officer commanding the armed forces will become all-powerful and his actions ‘non-justiciable and, for the time being, absolute, subject only to consultation (if this is feasible) with the civil power’ (de Smith 1981: 511). ‘Non-justiciable’ means that the courts have no power to scrutinise the lawfulness of the actions taken.

In Australia, martial law was invoked several times during the nineteenth century against convicts, Aborigines and workers. In his work, Emergency Powers, Lee ‘hazards a guess’ that the power to resort to martial law continues in Australia as a creature of the common law. Lee considered that, while legislation was generally preferable, the doctrine of martial law should not be buried, ‘for in the face of an extraordinary crisis it may come in useful … it may be better to rely on a “shadowy, uncertain, precarious something” than nothing at all’ (Lee 1984: 224).

This argument would seem to justify dispensing with the rule of law. The words quoted by Lee were taken from a nineteenth-century English judgment, where Chief Justice Cockburn stated: ‘Martial law when applied to the civilian is no law at all, but a shadowy, uncertain, precarious something, depending entirely on the conscience, or rather on the despotic and arbitrary will of those who administer it’ (R v Nelson and Brand (1867) F Cockburn Sp Rep 86).

How these propositions might apply in practice can be assessed from the experiences of British rule in Ireland, which provide a case study of the continuing operation of martial law during the twentieth century (Campbell 1994).

The first instance was triggered by the Easter 1916 Rebellion. The nationalist uprising was short-lived, lasting five days in Dublin, while the insurrection never even got off the ground elsewhere. Officially, 124 Crown forces were killed and 388 injured in the five-day counter-insurgency operation, compared to 180 civilians killed and 614 wounded (Ewing and Gearty 2000: 338–9). The Lord Lieutenant, Lord Wimborne, a cousin of Winston Churchill, proclaimed an immediate state of martial law in Dublin city and county. Under this authority, the British army commander-in-chief in the region, General Friend, swiftly issued martial law regulations that imposed a curfew and declared that any civilian carrying arms was liable to be fired upon without warning.

A day later, martial law was extended across the whole of Ireland, with British Prime Minister Asquith informing parliament that General Sir John Maxwell was being ‘given plenary powers under martial law over the whole country’. By War Office instructions, Maxwell was empowered to ‘take all such measures as may in his opinion be necessary for the prompt suppression of insurrection in Ireland’ (Ewing and Gearty 2000: 339, 339n). A further proclamation brought into operation an emergency regulation that contemplated two types of military justice – a general court martial and a field general court martial – to try anyone charged with offences against the Defence of the Realm Regulations then in force throughout the UK. These tribunals, which sat in secret, could impose the death penalty where the intention of the accused was to assist the enemy, and, in other cases, prison sentences of up to life imprisonment (Ewing and Gearty 2000: 341). In the first few weeks of May 1916, 3,419 suspected Sinn Fein sympathisers were arrested by the military under internment and other emergency regulations, 188 civilians were tried by courts martial, 90 death sentences were passed and 15 people were executed (Ewing and Gearty 2000: 342).

No effort seems to have been made to challenge the legality of the executions, but one bid to challenge the closed-door conduct of the hearings was dismissed unanimously by a seven-member King’s Bench court. Lord Chief Justice Viscount Reading considered that, having regard to the army commander-in-chief’s opinion that it was necessary for public safety and the defence of the realm to exclude the public and the media, it was ‘abundantly clear’ that the in-camera proceedings were lawful. The readiness of the judges to dispense with the legal principle of open courts was voiced most vehemently by Justice Darling. He declared that it would have been ‘grotesque’ to invite ‘the public to come and hear witnesses give evidence against rebels with whom a great many of that same public sympathised (R v Governor of Lewes Prison, ex parte Doyle [1917] 2 KB 254, 272, 274). One month after its proclamation, martial law was extended indefinitely. It was never formally revoked by proclamation, but simply ceased to apply when not judged essential by the UK government (Ewing and Gearty 2000: 339n).

The willingness of the courts to legitimise martial law was demonstrated in three Irish King’s Bench Divisional Court cases: R v Allen [1921] 2 IR 241; R (Garde) v Strickland [1921] 2 IR 317; and R (Ronayne and Mulcahy) v Strickland [1921] 2 IR 333. The first involved John Allen, who was sentenced to death by a military tribunal for possessing a revolver, ammunition and an IRA publication entitled ‘Night Fighting’. Giving the unanimous decision of the court to uphold the sentence, even though it would not have been possible under the ordinary law or even the emergency legislation, Chief Justice Molony declared:

It is the sacred duty of this Court to protect the lives and liberties of all His Majesty’s subjects, and to see that no one suffers loss of life or liberty save under the laws of the country; but when subjects of the King rise in armed insurrection and the conflict is still raging, it is no less our duty not to interfere with the officers of the Crown in taking such steps as they deem necessary to quell the insurrection, and to restore peace and order and the authority of the law. ([1921] 2 IR 241, 242)

In that case, there was no challenge to the government’s proclamation of the existence of a state of war, or to its claim that such a state of disorder existed when Allen was arrested. The court ruled that it was ‘clear on the authorities that when martial law is imposed, and the necessity for it exists, or, in other words, while the war is still raging, this Court has no jurisdiction to question any acts done by the military authorities’ ([1921] 2 IR 241, 269). Relying upon the 1902 precedent set by the Privy Council in Marais, the court held that the continued functioning of civilian courts in the martial law areas did not affect the legality of the military tribunals. And the lack of availability of the death penalty for these offences under the ordinary law was an objection ‘rather for the consideration of Parliament than for this Court, which cannot, durante bello [during war], control the military authorities, or question any sentence imposed in the exercise of martial law’ ([1921] 2 IR 241, 272). Allen was duly executed four days later, together with five others (Ewing and Gearty 2000: 364).

Another judicial ruling, handed down in mid-1921, did call the continued application of martial law into question. Egan v Macready ([1921] 1 IR 265) was a further challenge to a military court’s death sentence, this time for possessing ammunition. Significantly, the case was heard following the partition of Ireland, after sweeping electoral victories in the south for Sinn Fein and amid the announcement of a truce between the British forces and the IRA (Ewing and Gearty 2000: 365–6). Possibly influenced by the truce, Ireland’s Master of the Rolls, Charles O’Connor, ruled that the power to declare martial law had been removed by the adoption of the Restoration of Order in Ireland Act – the very proposition rejected by Chief Justice Molony’s Irish King’s Bench court two months earlier. Master of the Rolls O’Connor insisted that the ‘claim of the military authority to override legislation, specially made for a state of war, would seem … to call for a new Bill of Rights’ ([1921] 1 IR 265, 275). He cited the then very recent House of Lords judgment in Attorney-General v De Keyser’s Royal Hotel [1920] AC 508, which ruled that legislation could preclude the operation of prerogative powers by evincing an intention to cover the relevant field.