Martial Law in India, Pakistan and Ceylon

98 Pages·1962·2.043 MB·English

by  Joseph Minattur Ph.D. (London), LL.D. (Nimeguen) of Lincoln’s Inn (auth.)

MARTIAL LAW IN INDIA, PAKISTAN
AND CEYLON
MARTIAL LAW
IN INDIA, PAKISTAN
AND CEYLON
by
JOSEPH MINATTUR
Ph.D. (London), LL.D. (Nimeguen)
of Lincoln's Inn, Barrister-at-Law
Diploma of the Hague Academy of
International Law
•
THE HAGUE / MAR TINUS NIJHOFF / 1962
ISBN 978-94-011-8540-0 ISBN 978-94-011-9292-7 (eBook)
DOI 10.1007/978-94-011-9292-7
Copyright 1962 by Martinus Nijhqfj, The Hague, Netherlands
All rights reserved, including the right to translate or to
reproduce this book or parts thereof in any form
Contents
Acknowledgements 6
Introduction 7
(i) What is Martial Law? 7 - (ii) Martial Law Com
pared with the State of Siege 10
I. Martial Law in India 15
(i) During the East India Company's Rule 15 -
(ii) During the Administration of the Crown 17 -
(a) Ordinance-making Power of the Governor-General
17 - (b) Martial Law Ordinances 20 - (c) Administration
of Martial Law under the Common Law Rule 39 -
(iii) Constitutional Provision relating to Martial Law 40
II. Martial Law in Pakistan 42
(i) During the Dominion Period 42 - (ii) Indemnity
Provision in the Constitution of 1956 -51 - (iii) Martial
Law Administration since 1958 -52 - (iv) Special
Features of the Administration 72
III. Martial Law in Ceylon 75
(i) The Revolt of 1817 -75 - (ii) The Rebellion of 1848
76 - (iii) Communal Riots in 1915-78
IV. Conclusions 87
(i) Comparisons 87 - (ii) Need for Constitutional
Provisions 89-(iii) Need for Parliamentary Controlgl -
(iv) The Propriety of Martial Law 93
Bibliography 94
Table of Cases 96
Table of Enactments 97
Index 99
5
Acknowledgements
I am indebted to Professor Alan Gledhill, University of London,
and to Professor Jan de Meyer, University of Louvain, for helpful
comments and suggestions in the preparation of this study. While
expressing my gratitude to them, I should mention that the sole
responsibility for the views expressed in it rests with me.
I am also thankful to Miss L. Wezenberg who typed the text
and to Mr Z. Khan who helped in proof-reading.
The Hague, J. M.
February, 1962.
Introduction
(i) What is Martial Law?
It is difficult to define martial law, especially because of "the haze
of uncertainty which envelops it." 1 The expression is used to
denote a variety of forms of government or law, such as military
law governing soldiers in the service of the State, military govern
ment in occupied areas, any kind of arbitrary government in which
the military arm plays a dominant role, and the emergency ad
ministration "which obtains in a domestic community when the
military authority carries on the government, or at least some of
its functions." 2
It is in the sense indicated last that martial law is discussed in
the following pages. In this sense, it is "the extension of military
government to domestic areas and civil persons in case of invasion
or rebellion. .. it is a suspension of normal civil government in
order to restore it and has civilians for its subjects and civil areas
for its loci of operation." 3 Thus martial law has to be clearly
distinguished from military law and military government, though
all these have common roots in history and logic.4
The term 'martial law' was originally applied to the law ad
ministered by the court of the Marshal and the Constable of
England. There are two theories about the source of the word
'martial' in the expression. One theory is that the term 'martial
1 C. Fairman, The Law of Martial Rule, page 19.
2 idem, page 30.
3 C. L. Rossiter, Constitutional Dictatorship, page 140.
4 See W. S. Holdsworth, Martial Law Historically Considered," XVIII
Law Q;tarterly Review (1902), page 1 1 7.
7
Introduction
law' was originally spelt 'marshal law,' meaning the law ad
ministered by the Marshal or Constable which, according to
Coke, was "the fountain of marshal law." 5 The other is that
'martial' is derived from the Latin word martialis, an adjective
meaning 'pertaining to war' and that martial law means the law
relating to war. Though both explanations are plausible, the first
is probably the correct one. 6
Sir Frederick Pollock refers to the term 'martial law' as "an un
lucky 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." 7
Dicey considers martial law as the "power of the government
or of loyal citizens to maintain public order, at whatever cost of
blood or property may be necessary." 8 In his concurring opinion
in Duncan v. Kahanamoku 9 Stone, C.]. of the United States Supreme
Court described martial law as the "exercise of the power which
resides in the executive branch of the government to preserve
order and ensure the public safety in times of emergency, when
other branches of the government are unable to function, or their
functioning would itself threaten the public safety. .. It is a law
of necessity to be prescribed and administered by the executive
power." 10
Martial law is not statutory in character. It is the law of emer
gencies and arises out of strict military necessity. Its true character
is emphasised by Weiner when he describes it as the "public law
of necessity." 11 He further stresses the fact of necessity when he
says, "Necessity calls it forth, necessity justifies its existence, and
necessity measures the extent and degree to which it may be
employed." 12 Hare states that "Nothing short of a necessity can
5 Sir Edward Coke, The Fourth Part of the Institutes of the Laws if England,
page 123.
6 See R. S. Rankin, When Civil Law Fails, page 4.
7 F. Pollock, What is Martial Law?, XVIII Law Quarterly Review (1902),
page 156.
8 A. V. Dicey, Law of the Constitution (8th Ed., 1915), page 286.
9 (1946) 327 U.S. 304.
10 idem at 335.
11 F. B. Weiner, A Practical i'vlanual of Martial Law, page 16.
12 ibidem.
8
Introduction
justify a recourse to martial law," 13 but contends that "such a
necessity may exist before the blow actually falls. .. All that can
be said with certainty is that there must be reasonable and pro
bable cause for believing in the imminency of a peril that suspends
the ordinary rules." 14
In the absence of conditions necessary for the initiation of
martial law, a proclamation of martial law has no authority. If the
exigencies of the situation compel the initiation of martial law, a
proclamation is not necessary. It has, as Thurman Arnold puts it,
only an "emotional effect," 15 as the proclamation is merely an
official declaration of an existing fact. It serves as a warning by
the authorities that they have been compelled to have recourse to
strong measures to restore public order.
It would therefore appear that martial law is "nothing more
than a state of fact based upon a condition of necessity." 16 As
Sir James Mackintosh expresses it, "The only principle on which
the law of England tolerates what is called martial law is necessity;
its continuance requires precisely the same justification of neces
sity; and if it survives the necessity on which it alone rests for a
single minute, it becomes instantly a mere exercise of lawless
violence." 17
If the initiation of martial law is based on necessity the justifi
cation ofa ll measures adopted during a regime ofm artial law should
also be based on necessity. There are different views about what
this criterion of necessity permits. While Pollock believes that all
acts which may have been fairly regarded as necessary during
the crisis should be deemed permissible by the Courts, Dicey
inclines to extend judicial protection only to those actions justi
fiable on the grounds of 'immediate necessity'. Dicey's view finds
favour with the majority of English judges.18 But facts of history
support Pollock's view that martial law may permit measures of a
13 J. 1. C. Hare, American COl!5titutional Law, Vol. II, page 965.
14 ibidem.
1l; Thurman Arnold, Martial Law, in The Encyclopaedia of the Social Sciences.
16 C. L. Rossiter, op. cit., page [46.
17 Quoted in C. M. Clode, The Military Forces qfthe Crown, II, page 161.
18 H. M. Bowman, "Martial Law in England," XV l\llich. L.R. (1916), pages
111-112, cites some of the authorities.
9
Introduction
preventive nature and may extend to areas merely threatened by
invasion or rebellion.19
The contention that there is no necessity for a resort to martial
law when the civil courts are open does not seem to find unquali
fied support. Willoughby commenting on the majority opinion in
ex parte Milligan,20 says: " ... there may be urgent necessity for
martial rule even when the courts are open. The better doctrine ...
is ... , as in all other cases of the exercise of official authority, to
test the legality of an act by its special circumstances. Certainly the
fact that the courts are open and undisturbed will in all cases
furnish a powerful presumption that there is no necessity for a
resort to martial law, but it should not furnish an irrebuttable
presumption." 21 It would appear to be fair to state that when the
civil courts are functioning properly and handling the situation
successfully, there is no necessity for a resort to martial law. It
may not be unreasonable to give the expression 'open court' in
some of the judicial decisions dealing with martial law the con
notation of a properly functioning court.22
(ii) Martial Law Compared with the State of Siege
"Martial rule," writes Rossiter, "is an emergency device designed
for use in the crises of invasion or rebellion. It may be most pre
cisely defined as an extension of military government to the civilian
population, the substitution of the will of the military commander
for the will of the people's elected government. In the event of an
actual or imminent invasion by a hostile power, a constitutional
government may declare martial rule in the menaced area. The
result is the transfer of all effective powers of government from
civil authorities to the military, or often merely the assumption of
such powers by the latter when the regular government has ceased
to function ... Martial rule has a variety of forms and pseudonyms,
1" See irifra, martial law in Peshawar, for instancf'.
20 (1886) 4 Wall. 2.
21 W. W. Willoughby, The Constitutional Law of the United States (2nd Edition),
III, page 1602.
22 See the Privy Council case Marais v. General O'/ficer Commanding, (1902).
A.C. 109, which decided that martial law might exist where the civil courts
were still open. Usually in a martial law area when the ordinary courts are open
for business, this is onlv at the sufferance of the military authoritie,.
10
Imroduction
the most important of which are martial law, as it is known in the
common law countries. .. and the state of siege, as it is known in
the civil law countries of continental Europe and Latin America.
The state of siege and martial law are two edges to the same
sword, and in action they can hardly be distinguished." 23
Martial law is thus the common law counterpart of the state of
siege in civil law countries. The same circumstances give rise to
both, the same procedure is followed and the same purpose is
sought to be served. An invasion or insurrection gives rise to both
martial law and the state of siege: suspension of civil rights,
establishment of military courts for trial of civilian offences, and
the substitution of the military arm for the regular police gene
rally characterise the procedure in both. The o~iect in view in
both is the restoration of public order and normal government.
In spite of these similarities, "martial law and the state of
siege arise from different legal systems, and from different politi
cal and military histories." 24
As the state of siege adopted in various civil law countries is of
French origin, we shall consider in some detail the institution as
it exists in France. The law of August 9, 1849, which was enacted
in pursuance of Article 106 of the Constitution of November 4,
1848,25 and later supplemented and amended by the laws of
April 3, 1878, and April 27, 1916, forms the basis of state of siege
in France. Under the law of 1849 the declaration of a state of
siege would have the following consequences:
(a) For all general police duties military authorities will re
place civil authorities and it is for the former to decide which of
these duties they will take over and which they will leave to the
civil authorities.
(b) The military authorities will have special police powers
to make house searches by night or day, to remove persons who
have no domicile in the area under siege from that area, to order
the surrender of arms and ammunition, to search for and remove
them, and to prohibit publications and meetings which, in their
view, might endanger public order.
23 C. L. Rossiter, op. cit., page 9.
24 idem at page 139.
25 Article 106: "A law will fix the occasions in which the state of siege can
be declared, and will regulate the forms and effects of this measure."
1 I