Defence Legislation within the Republic of Hungary
The transformation of the Army and the Armed Forces is instrumental, indeed critical, to the success of transition to democratic systems of government. The transition implies that, in a time of new challenges and risks to security, in the absence of a collective security system, there should be an efficient army, which if necessary can ass its the new democracy in defending regained national sovereigntyand territorial integrity.
On the other hand, the purpose of the reform is also to create a democratically led army under civilian political control. This would prevent abuses of power both institution and individual.
The transformation of the Army is an immense and complicated task involving a number of changes in the way policies are formed and actually implemented and calls for constitutional as well as legal reforms. This is made even more complicated by the need to re-evaluate and redefine policies in an increasingly deteriorating economy.
The process of transformation of the Armed Forces, necessitates a change in size, structure, geographic deployment and possibly in technical levels. To some foreign observers, already, it seems as if policies and laws are being passed at a breath-taking speed. However it is not fast enough from an insiders point of view to completely eradicate the contradictions between the old and new systems. This is a problem that, to some extent al! of our countries are still having to work with old or only partially reshaped legal frameworks, coupled with some highly centralized policy-making institutions inherited from the former regime.
Currently, old and new laws each designed to serve a very different power structure sit side-by-side. This threatens to undermine the legitimacy and weaken the capacity of the system which should be serving as a regulatory mechanism of the State. In some countries, this sort of situation has led to an open discussion of a "crisis of authority".
This question can be especially critical to the Armed Forces and defense issues. Under such circumstances, and in a political environment constantly referring to the rule of law, the introduction of new legislation, has to be a reform priority. In such cases, any legal moves aimed at closing the gap between the new political proposals and the old, yet still operative laws, can only contribute to a greater legal coherence and a more consolidated democratic environment.
Let us now briefly look at three legal papers concerning Hungarian defense: the Defense Concept, the Defense Bill and the Law concerning the legal status of the Soldier.
The Defense Concept
Hungary, now free of the confines of the Warsaw Pact, has discovered that the country is largely unprepared and incapable of independently defending itself properly in the 1990's, this being a result of the previous subordinated defense policies. There is not even a conceptual framework, whereby a policy could be developed. Fortunately, international and domestic events, over the last few years, have made the development of a national defense policy and concept possible. Such an elaboration is also necessary in fact, if one considers the events in Eastern and Southern Europe and the security risks that have evolved as a result.
After intense debate, in April 1993, the Hungarian Parliament adopted the document entitled "The Main Tasks and Basic Principles of Hungarian Defense Policy" (also referred to simply as "The Defense Concept" and sometimes, with some negative connotations, a 'The Military Doctrine'). The piece reflected a consensus reached by the six parties represented in Parliament. The MOD, who initiated the draft, played a crucial role, together with the Parliamentary Defense Committee, in the birth original version.
The document states that Hungary has no preconceived "enemy image" and does not expect a large-scale attack from an Y direction. However, we cannot ignore on-going conflicts at the level of civil wars and their possible escalation posing a potential military threat to our country, which would therefore constitute a new type of threat or challenge to our security. The paper then goes on to define the strategic requirements and priorities of national defense, and at this point shows a large political consensus behind the issues, with regards to the development of Rapid Reaction Forces, procurement and above ali the Army's size.
The Defense Concept points out that Hungary's security be will ultimately determined by membership in the European Community and NATO. However, this is a long way off. In this transitional period, security is more
likely to be strengthened as we develop closer relations to those institutions and their individual member states, as well as the nations of our area. Such cooperation will enable Hungary to adapt better to the international standards of the democratically developed armies, especially with regard to the democratic system of political control.
The Defense Bill
If we look at the draft of the Defense Bill, we see a basic legal act covering the whole domain of civilian-military relations, encouraging a constitutional system of 'checks and balances' whereby the Government, Parliament and the President all separately have a say. The Bill needs a 213 majority, but in early October a multi-party consensus, on the debated key issues, was reach ed. This has been instrumental in the successful outcome of the debate of the plenary session. Consequently the adoption of the Bill is practically guaranteed by this political compromise and it can be expected by the end of this month. The new law will replace defense legislation which was accepted in 1976 and modified in 1990 by the new assembly.
The draft of the Defense Bill clearly determines the supremacy and control of the political authority over the military. It exactly states the role of Parliament and the Government as regards the policy formulation and implementation, and the professional tasks of the Army as regards military command. The Defense Bill stipulates the delicate balance of the relationship, functional division of labor and the interaction of the executive and legislative branches of power. Parliament plays a decisive role in defining the priorities of defense policy. The National Assembly decides on the staffing levels of the Armed Forces, the structure of the Services, the main directions of development within military technology and the Defense Budget. In accordance with the Constitution, its sole right to declare a state of emergency is also laid down. Tied in with this is the detailing of its unique authority to deploy the Armed Forces, in addition to the details of how Parliament can create the Home Defense Council (in other countries, sometimes referred to as 'the War Cabinet').
The Law strengthens the constitutional position of the President of the Republic as the Chief-in-Command of the Armed Forces. At the same time, however, with this act the legal position of the Government, as the directing force of the Army, in peacetime, has also been recognized, this control being exercised through its specialized agency, the Ministry of Defense. The Army will be placed in immediate subordination to the MOD, who undertakes the administrative responsibilities to do with the Armed Forces. It brings into effect the military policy, which Parliament and the Government have defined, in such a way that it directs and controls the Army. The political leadership, at the same time, does not interfere with the military chain=of-command, the responsibility of this leadership is coordinated from on high by the General Staff. On the other hand, it is the duty of the military establishment to communicate "feedback" of the requirements of the Armed Forces to the political decision-makers.
The sphere of authority of the Government is a serious issue when it comes to the question of "limited deployment". This is in the event of an aggressive violation of the Republic's airspace, or when armed forces have to be stopped from attacking the Country. The Law states the immediate actions to be taken by the Government and its obligation to simultaneously inform the key constitutional players, involved in the decision-making process, such as the President and Parliament.
The Law concerning the Legal Status of the Soldier
At the moment, the status of military personnel is stipulated by the still operative law of 1971. Without doubt, there is a need to re-define this status. We have to create a law which details the legal position of the members of the Hungarian Army, in agreement with the special requirements of defense and with the requirements of individual civil and human rights.
While the Defense Bill is concerned with the legal position of the Armed Forces and how they relate to all the institutions and branches of power, in contrast, the Bill concerning the legal status of the Soldier, deals with the legal side of military service as related to each individual soldier, as well as to the collective army structure as a whole.
The modernization of the legislative process was made necessary by the fact that, even in the face of the newly instigated democratic restructuring of our Society, the Army has remained slightly insulated from the general civilian state of affairs, being a kind of of sub-culture, usually functioning to a different set of standards. Today, in peacetime, one stilt comes across unjustified restrictions of the individual rights of service personnel, in certain cases expectations which lead to self-sacrifice. Service itself is strictly fixed. it burdens one physically as well as psychologically, while at the same time, for the moment, the material and moral rewards are far from being proportional to the sacrifice.
We would like to improve this situation. One of our most important aims, in the codification process, is the creation of the ideal of 'the citizen in uniform', which is one of the basic tenets of the armies of highly developed democracies.
During the preparatory stages of the Law, we tried to find an answer to the question of how we can minimize military subordination and duties and the limitations which are necessary for the achievement of the goals of a normally functioning army. The military way of life is undertaken by two types of figure within our Country : the career soldier, who voluntary exercises his responsibilities and the conscripted soldier who enters the Army out of his constitutional duty to serve.
Both these types of individuals, despite the obvious differences between them, execute one and the same type of activity. For this reason it was important for us to start by making sure that the law that was in preparation, would create one and the same system of relations for conscript and career soldier alike.
It is a matter of fact that military service, entails certain restrictions for the person involved in the activity. These restrictions should not exceed the necessary limitations undisputedly required for the execution of relevant duties. These are restrictions which burden the Soldier and for this reason have to be encased by guarantees.
The law concerning the legal status of civil servants is based on a similar legal plan with similar principle aims, such as (amongst others) the de-politization of the Army and the politically neutral and party-independent state of the Soldier. At present, the drafting, which is at an inter-agency stage, offers two versions of the question of political neutrality .
The 'A' version forbids military personnel from taking leading positions within political parties. The 'B' version forbids a soldier from even being a member of a party.
There are other topics of debate, for example, in relation to trade-union like structures for the protection of soldiers' interests. Can we have such organizations working within the body of the Armed Forces, or should such organizations purely be established outside the main body and only active in defending such interests from the outside? These dilemmas represent real difficulties even for democracies with much more experience than we have. The testimony of individual countries cannot provide us with a ready-made universal answer.
The Law on the legal status of the Soldier, which 1 have mentioned, has passed through internal team debates within the Army and the Ministry, and the text is now to be edited at governmental, inter-agency level. Next, probably in the first quarter of the coming year, the debate in Parliament will begin, as will the search for multi-party consensus related to the final parliamentary acceptable version of the text.
During the whole process of preparation, we found the exchange of international experience very useful with alt the NATO member countries and with some of the nations of Central and Eastern Europe, who are in similar position to ourselves. We are quite aware that there is no single ideal solution, or universally applicable model. Every country has to individually find the concrete political and legal mode most relevant to its own historical and social situation and circumstances. International cooperation and fore similar to this conference, give us access to the kind of experiences and observations which can be utilized as pieces of a mosaic, which will finally give the picture that is the legislative process of reform.