MARTIAL LAW: CHALLENGES FOR DEMOCRACY

Abstract

The article analyses the ambiguity of views on the issue of restricting human rights and freedoms and ensuring security in emergency situations. The author notes that in today’s world, different legal regimes are applied in response to threats. The researcher emphasises that a state of emergency objectively restricts human rights and freedoms, and prolonged legal regimes of emergency and martial law challenge democratic values. At the same time, war does not justify disregarding accepted legal norms, and national security cannot be an unconditional justification for restricting human rights. The concentration of power in the executive branch obstructs the implementation of the principle of separation of powers, and the refusal to hold elections obstructs the rotation of power. Referring to the growing number of conflicts in the world, their recurrence and duration, as well as the ineffective mechanisms available for their resolution, the author questions the classification of martial law as an emergency situation. The researcher points out that while the problem of guarantees of fundamental human rights and freedoms under special legal regulation is recognised and monitored, the democratic nature of the regime in emergency conditions is no longer assessed. As a new approach to analysing a state of emergency, the author proposes Israel, where the review of executive decisions in the field of national security is widespread. In fact, it refers to the lack of guarantees for democracy during and after martial law and emphasises the need to protect it, including through the courts. The study analyzes international experience and draws a conclusion about the role of the judiciary in ensuring the balance of power. It examines the problem of proportionality of restrictive state measures to extraordinary threats and the role of courts in determining proportionality. The study concludes that Ukraine, under martial law, has preserved democratic institutions and demonstrates commitment to democratic values, but finding a balance between preserving democratic values and ensuring security during war is a complex process that requires constant monitoring. An analysis of the functioning of the legal regime of martial law in Ukraine allows us to draw conclusions about the challenges to the principles of rotation of power and separation of powers. The state of freedom of speech in Ukraine during martial law requires a separate study.