title: Martial law in the Indo-Pakistan sub-continent.
Creators: name: Munim, F. K. Md. Abdul
Publisher: name: SOAS University of London
Year: 1960

description: The necessity of considering the scope of martial law impressed me forcibly when President Iskander Mirza published his Proclamation of 7 October, 1958, abrogating the Constitution of Pakistan and declaring "martial law" throughout the country. Before considering the nature of the present regime in Pakistan, I thought it proper to inquire what had previously been regarded as the justification and scope of martial law, for without a clear conception of the foundations upon which this rests, any comments on the aspects of the present "martial rules" in Pakistan would be superficial and might be dismissed as inaccurate, I was thus prompted to consider the origin of martial law in the Commonwealth and the United States of America, and the various meanings which have been assigned to it in these countries. To find the true limits of powers exercised by the Armed Forces when martial law is declared, it was considered necessary to discuss the extent of the executive discretionary powers exercised on less dangerous occasions, such as riot and other ordinary braches of peace, as well as during war which demands the sacrifice of life and property of the citizen. A consideration of the decisions of the Commonwealth and American courts and the opinions of jurists and lawyers makes it evident that the executive or military claim to assume unlimited powers has not been conceded. To allow complete freedom of action for the purpose of restoring peace and order does not necessarily confer liberty to commit any excesses. For as soon as martial law is withdrawn, every officer is liable to criminal and civil proceedings for his acts which may be alleged to have been unnecessary or not done in good faith. Chapter I is introductory and discusses the origin of martial law in England and the circumstances which led to the declaration in the Petition of Right, 1628, forbidding the application of martial law in England in time of peace. Chapter II relates the controversies among the judges and lawyers as to the true scope and meaning of martial law and considers whether it may be proclaimed in England today. The question whether martial law is derived from the common law power to repel force by force or from the Crown's prerogative is discussed. Chapter III deals with the application of martial law in the Commonwealth, especially in India during British rule. A few pages have been devoted to the consideration of the declaration of a "state of siege" under French constitutional law. Martial law has so frequently been applied in America by the State authorities that the whole of Chapter IV was necessary to consider the state of law in that country. Chapter V deals with general problems which normally arise in connection with the maintenance of law and order in cases of ordinary breaches of peace. The precise limits of executive powers and the scope of judicial control have been considered in Chapters VI and VII. The exercise of war powers and the claim to uphold the Constitution tinder the stress of 'total war', such as the two preceding World wars required, have been considered in detail in Chapters VIII and IX. Chapters X and XI deal exclusively with the recent application of "martial law" in Pakistan. The nature of "martial law" as now applied in Pakistan is so different from the ordinary conception of martial law that its discussion had to be postponed till the end. The Conclusion finds its place in Chapter XII.