FEATURES OF THE FUNCTIONING AND LEGAL REGULATION OF THE STATE EXECUTIVE BODIES’ ACTIVITIES UNDER MARTIAL LAW

Abstract

The article is devoted to the legal analysis of the features of the functioning and regulation of the activities of state executive bodies under martial law. The relevance of the topic is stipulated by modern geopolitical challenges, in particular the long-term martial law in Ukraine, which caused significant transformations of the institutional structure of public power. The fragmentation of existing research, dominated by a sectoral or practically oriented approach, is noted, and the urgency for a systematic doctrinal understanding of the evolution of the legal status and competencies of executive bodies in extreme regimes is substantiated. The fundamental principle of the separation of powers and its transformation during martial law, when there is a temporary centralization of powers in favor of the executive branch with the obligatory preservation of parliamentary and judicial control, is emphasized. It is substantiated that even under martial law, the rule of law and the separation of powers remain the foundations of the constitutional order, and restrictions on rights are possible only within the limits of proportionality and necessity. The peculiarities of the executive authorities’ functioning are analyzed, in particular the expansion of the powers of the President, the Cabinet of Ministers and military administrations. A comparative legal review of international experience of the United States of America (Insurrection Act, War Powers Resolution, Ex parte Milligan case), France (régime d’état d’urgence, conclusions of the State Council on the harmfulness of prolonging emergency regimes), Israel (prolonged state of emergency since 1948 and judicial control over proportionality), and Great Britain (Civil Contingencies Act and rejection of absolute executive discretion), is done Special attention is paid to doctrinal aspects, in particular the doctrine of necessity, the distinction between the rule by law and the rule of law, as well as the paradox of martial law, which should not make “legal black holes”. It is summarized that the effectiveness of the executive branch in crisis conditions is possible only if the fundamental elements of the separation of powers and the direction towards the rapid restoration of constitutional order are preserved.