UKRAINE LEGAL UPDATE
24 February 2022
Rada imposes a 30-day martial law period over Russia’s invasion. To help mobilize for the war effort, the structure of government is to be changed, some civil rights and liberties suspended, and elections postponed. Businesses and individuals will face a rollback in rights.
As Russia hit targets across Ukraine in the wee hours of 24 February 2022, moving in with a full-scale multi-pronged land invasion, Ukrainian parliament, the Rada, acted promptly to enact a presidential decree imposing a 30-day period of martial law. Badly hit by devastations from the fighting and related economic dislocations, people and companies must also deal with various legal disabilities engendered by martial law.
Legal basis
Martial law, its elements, introduction and operation, is the domain of a special act of parliament, under which the executive branch may also issue enabling regulations. The general legal framework is provided by the Constitution (e.g. as to kinds of civil rights and liberties that may be suspended) with input from other legislation. Under the Constitution martial law is limited to a threat of foreign aggression (actual aggression apparently entailing a state of war, a separate regime). However, under the governing statute martial law covers ongoing hostilities as well.
Declaration of martial law
Martial law is imposed by a presidential decree, which must be approved by a law voted by parliament. The decree must address certain mandatory issues, such as the reasons for martial law’s introduction, the list of civil rights and liberties to be suspended, etc. It can be imposed for any period of time and extended any number of times.
Elements
Martial law, which may apply to individual territories or the whole of Ukraine, can be seen as involving a number of overlapping elements:
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expanded powers of the military,
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changed structure of government (mostly at the local level),
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suspension of constitutional liberties and rights,
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introduction of martial law measures, and
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postonoment of political processes.
Powers of the military
A general effect of martial law is that it puts the military in charge of various aspects of civilian life (including internal security). That is done, among other things, through the formation and operation of military administrations and the military’s introduction and enforcement of martial law measures. Military officers may issue orders and directives binding on civilian authorities and private citizens. Authorized officers range from the general staff to commanders of individual units.
Changed structure of the government
The President may decree the formation of military administrations in areas threatened or affected by the hostilities. These are normally staffed by the military and report to the army command. The administrations assume all authority in the area.
Operation of courts and justice
Martial law does not generally affect the way justice is administered. The courts continue to operate, and may not be substituted by other entities or procedures, including any special or expedited ones. Where affected by hostilities, courts may be relocated or their jurisdiction reassigned.
Suspension of civil rights and liberties
Martial law restricts personal rights. For individuals, that is framed in terms of suspension of certain constitutional rights and freedoms. As to organizations, the law speaks simply of limiting their rights and interests. See more here.
Martial law measures
Martial law measures refer to various legal restrictions deemed necessary to boost the nation’s readiness for defense. These range from the general ones, such as stepping up patrolling and security measures, imposition of curfew and blackout restrictions, to those directly affecting rights of individuals and businesses. See more here.
Postponement of political activities
Martial law has the effect of freezing political life for the duration. It rules out any elections, whether at national or local level, with the resultant prolongation of the incumbents in office. Political parties are free to operate unhindered, but those engaging in anti-Ukrainian activities may be suspended by the executive and banned by court.
Government
The powers of the Rada (parliament), the President and the Cabinet of Ministers generally remain unchanged and their work goes on without interruption. The law lists high officials that may not be dismissed under martial law, although the President may suspend them from office and name acting heads instead.
Martial law vs state of war
Legally, martial law is not a state of war, although the two may overlap. Nor are they mutually exclusive. The former seems to relate to Ukraine’s domestic matters, while the latter is largely a question of its foreign relations.