Patrick Dunne

In the midst of a lockdown in this country, and lockdowns in many other western democracies, reference has been made to the imposition of martial law. This, it is claimed, would result in members of the Defence Forces entering onto the streets to enforce law and order.

We have already seen that members of the Defence Forces’ 96th Cadet Class have been working with the HSE as part of their contact tracing programme. Ships from the Naval Service have also been acting as testing centres and troops with specialist training have been deployed as part of advanced paramedic teams with Dublin Fire Brigade and the National Ambulance Service. The Defence Forces are now assisting the HSE in delivering PPE.

All of these roles can be described, in military parlance, as taskings in Aid to the Civil Authority (ATCA). The references to members of the Defence Forces entering onto the streets is a somewhat different, much more coercive role. That would go beyond traditional domestic security operations which ordinarily fall under the auspices of Aid to the Civil Power (ATCP).

While it has to be accepted that martial law is not a concept many will be intimately familiar with, references to martial law are in this situation misplaced and unhelpful and soldiers on the streets does not mean we’re heading towards martial law.

Martial law

Writing in 1990, the former Chief Justice Ronan Keane described martial law as the suspension of normal legal process during invasion or rebellion on a scale which makes the functioning of the ordinary courts impractical. Martial law in this sense therefore exists to shore up the capacity of the military authorities to preserve essential societal functions, by empowering those military authorities to make and enforce civil and criminal law through the establishment of an ad-hoc courts system.

Unlike the Special Criminal Court, there is no requirement for these courts to be established by law. Martial law exists to step into the breach in times of existential threat to the state, and enables military authorities to repress the civilian population by whatever means they deem appropriate, save and with the exception of the death penalty. The imposition of martial law on a civilian population amounts to a truly exceptional and extraordinary removal of citizens’ personal rights.

There are a number of constitutional safeguards in place which prevent the imposition of martial law on a civilian population. The Constitution protects your right to a trial by your peers (save in certain circumstances) and contains many other procedural safeguards for the trial of offences. The personal rights contained in Article 40 have long been litigated by persons seeking redress before the courts, and the procedure contained in Article 40 (where a person is unlawfully imprisoned can gain freedom through an application to the High Court) can be brought by an individual at any time. Each of these provisions may be disapplied in a state of war or armed rebellion.

The emergency powers provisions are properly designed not to be activated unless there is an existential threat to the state. Anything short of that threshold being reached will result in the State, and the Defence Forces, dealing with matters through existing powers.

Aid to the Civil Authority

The Defence Forces provide a critical service to the communities they serve, yet the decision-making process for members of the Defence Forces mobilising into those communities can seem opaque. We’ve seen in recent days that the Defence Forces have been tasked to assist with the provision of safe COVID-19 test centres and this is a typical ATCA tasking, albeit in an atypical set of circumstances.

The Defence Forces operate guidance in respect of assistance to the civil authorities in maintaining or restoring essential services in a major emergency. Memoranda of Understanding or Service Level Agreements between the Department of Defence and the principal response body form the basis for providing the services in line with the Framework for Major Emergency Management in Ireland. There is also provision within guidance and the Framework for members of the Defence Forces to undertake duties in our prisons, as was reported during the week.

Aid to the Civil Power

ATCP is primarily governed by Defence Forces Regulation (DFR) CS1 and the current version has been used by the Defence Forces since 1967. While I note above that the term martial law is effectively a substitution of civil authorities for that of the military authorities, the role and function of ACTP is fundamentally different. This is the use of military personnel in domestic policing operations in support of, and at the request of, the civilian policing authorities.

The strong protections against the imposition of martial law at a constitutional level are not designed to prevent members of the Defence Forces conducting armed security operations in the state. This much is clear from the fact that it is common for armed members of the Defence Forces to be deployed in support of the civil authorities where directed by national law, both in times of significant strife (as was seen during the Troubles), and in providing routine security duties as requested.

The current operations guidance documents, and DFR CS1 in particular, have demonstrated that the Defence Forces can be deployed in a targeted manner and will adhere to principles to limit their use of force when deployed on ATCP. These deployments can include the use of lethal force (a more detailed discussion on the use of force can be found in ‘The Use of Force’, An Cosantóir, December 2019/January 2020). These guidelines are separate and distinct to UN rules of engagement which Defence Forces’ personnel operate in peace support operations in UNIFIL and UNDOF.

Aside from these formal requests for assistance, the Defence Forces possess existing common law powers to deal with riot and affray which have been formally recognised in the Irish courts since 1938.

Defence Acts

It is also worth noting that the Defence Acts 1954 to 2015 also contain standalone provisions in which the Government can declare a period of emergency for the purposes of the Act. Arising from that declaration, the Government may, inter alia, place the Defence Forces on active service, and call up the Reserve.

The range of powers available to the state are considerable, and are sufficient to deal with any difficulties presented by COVID-19. The threats faced by the state are not existential and situations, as dynamic as they are at the moment, will be dealt with using existing powers. The Defence Forces have a long track record of providing an excellent service to the state in difficult times. The call to arms, such as a call for martial law, is not something which can be seriously considered.

• Patrick Dunne is a graduate of Dublin City University and a barrister-at-law degree candidate.