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          • Year: 2003
          • New Constitutional Position of the Army

          • 23. february 2003. Dr Miroslav Hadžić, Centre for Civil Military Relations, Belgrade

        •  

          For better understanding of civil democratic control in France, we should certainly remember the specific historic circumstances in which its system and institutional frame were established. After the Second World War, at the end of ‘40s and beginning of ‘50s, France entered the era of disintegration of its colonial imperium and rapid erosion of its economic and political power and influence on the main streams of international relations. At the same time, particularly with its useless efforts to resist or at least control the decolonisation process, specially in the Middle East and in the north of Africa, France experienced severe economic and social conflicts and political disturbances which, together with disloyalty of its colonists in Algeria and irregular actions of the French armed forces, led the country to the state of permanent political instability during the second half of the ‘50s. De Gaulle’s becoming president, the new Constitution which was passed on October 4th, 1958 and the announcement of the Fifth Republic were the historical moments regarding the establishment of the basic preconditions for legal state, regularity of elections, the actions of all authorities and their substitution and establishing full, efficient civil and democratic control of the armed forces, within this frame.  

          Independently of when the local actors reach a compromise, it is expected that the Charter will eliminate any constitutional impediments of establishing democratic order in the Union and its members. The Charter should at the same time propose a solid normative framework for continuing reforms. Within this, complete reform in the security sector, i.e. the armed forces is expected. According to the Charter draft, only the army and defence will be under the authority of the Union. The remaining components of the armed forces and security factors will remain under the authority of the member states, therefore the Union will have no effect on the tempo and direction of its reform. It is expected that the Charter will ensure the supremacy of civilian authorities of the Union and member states over the army and defence. Consequently, there should be efficient instruments and procedures included in order to ensure the effective democratic civil control and oversight of the Army and defence. According to this, the constitutional position and assignments of the existing (inherited) army should be defined by the Charter differently than in the Constitution of FRY.

          In the following text, we will therefore analyse what status was given to the army by the authors of the Charter, as well as the assignments intended for them. Afterwards, we will examine whether the solution in the Charter ensures adequate conditions for the democratic civil control and oversight of the army.

          A commission comprised of deputies from majority parliamentary parties of the federal and republic assemblies has been drafting the Constitutional Charter for 8 months. For drafting the text, the Commission, from its own composition, has appointed a sub-commission based on parity. Experts from various fields have been included in the work of the Commission according to its needs and by the choice of the representative parties/groups. On August 9, 2002 the sub-commission collected the results of its work in the »Draft text of the Constitutional Charter« and afterwards submitted it to the Commission for further coordination and decision-making.1 The proposed solutions are given with alternatives, since the Draft text was only a simple total of the different and/or adverse standpoints of the Sub-commission members regarding all the elements of the Charter.

          After painstaking negotiating and numerous delays, the Commission adopted the draft text of the Charter at the end of December.2 Thus, based upon article 27 of the Charter, it has begun work on the draft legislation on implementing the Constitutional Charter defining the procedures for transforming FRY into the new state of Serbia and Montenegro. This then implies that the Charter text is final, i.e. that the national assemblies of the republics will adopt it in this form. Therefore, it is unlikely that the proposed provisions on the army will be changed.

          The status of the Army and indirectly, defence, is defined in Chapter VIII of the Constitutional Charter. This topic is located in the section titled »The Army of Serbia and Montenegro« and is divided into 5 articles (54-58). These articles are drawn from the Draft text, which in Chapter V contains 22 paragraphs with numerous alternatives.3 Thus, only provisions pertaining to the army reached by consensus of the Commission were included in the Charter text. In order to settle the adverse attitudes of the Commission members, they then had to be very general or even better said, to be imprecise. Articles of the Charter defined in this way only say more about political and/or party interests of the authors than about their honest determination (ambitions) to write a worthy and feasible constitutional act. Also, adopted provisions pertaining to the Army detect the degree of their knowledge (ignorance) of contemporary civil-military relations. Since the consensus required political concessions and/or bargains, it appears the authors were more concerned about their gains/losses than the consistency of the above-mentioned provisions. Only in this way could numerous ambiguities in constitutionally defining the position of the army be coherently explained. It leaves the impression that the constitution authors, already in the constitutional act of the union, incorporated a series of faulty solutions, which won’t be so easily removed during its transformation into a law. We will examine this impression by analysing the provision texts pertaining to the Army.

          We will cite the provisions on the army in the order that they are written in the text of the Constitutional Charter, and after, we will comment on them and combine them. In this context we will verify whether and to what extent the Constitutional Charter on the whole, and its parts, secure the implementation of the mentioned provisions. At the same time, we will attempt to figure out what civil-military topics did the authors of the constitution pass on to future legislatures. It is our intention to examine whether the provisions of the Constitutional Charter offer them a sufficient basis to do their job well.

          Article 54: Serbia and Montenegro shall have an army that is under democratic and civil control.«

          In the first part of Article 54, the normal order of matters is established, and now, Montenegro, after many years of abstinence, willingly undertakes the rights and obligations of the army and defence of the Union. At the same time, requests to form "joint armies" were eliminated, and the idea of the dividing the Yugoslav Army and/or establishing separate armies of member states under a joint command was dropped. Also, dilemmas about the VJ status were eliminated, therefore it will become/remain the army of the Union. The procedure of its transformation will most likely be defined by the Law on implementing the Constitutional Charter, while the details will be worked out in the Law on the Yugoslav Army and defence. From this provision, it cannot be determined what the name of the Army of the new state will be, but it is certain the VJ will be renamed.

          In the final part of this article, which introduces the »democratic and civil control« over the army, represents a new chapter in the Serbian-Montenegrin constitutional history, and in this way, at least a nominal departure was made from an authoritative civil-military heritage and its inherent client army. Thus, for the first time, an urgent need for putting the army under democratic civil control was brought to the level of a constitutional principle. The genuine dedication of the authors of the Charter to this principle can be estimated through the analysis of the constitutional instruments and procedures for its practical implementation. The results will be presented in the sequence dictated by the Charter provisions on the army.

          The first doubts are a result of putting an "and" in between "democratic" and "civil" control. In this way, the authors separated and potentially opposed the two components of control over the army. It is as if they neglected the fact which was theoretically explained long time ago, and also proven by Yugoslav wars, that not every civil control of the army is democratic. Democratic control is just one, but an optimal and desirable variant of subordinating the army to civil authorities. By adding an adjective "democratic" to civil control, it should be emphasized that only democratically elected civilian authorities can carry this out. They are obliged to carry out this control by constitutional procedure and by applying democratic measures. By using unwieldy formulations, the authors left room for the replacement of democratic control with its civilian surrogate. The post October experience with Mr. Koštunica makes it possible to imagine a situation where some president of the Union or the Supreme Defence Council will claim that, the fact they are civilians proves the democratic nature of their control over the army.

          Moreover, the Charter does not include the necessary prerequisites for the implementation of »democratic and civil control«. We believe that the authors of the Constitution deprived legislative and executive authorities of precise jurisdiction in controlling the army and defence. This is proved by the findings about the jurisdiction on the national assemblies of Serbia and Montenegro that will follow. The domain of the executive authorities will be discussed in a more appropriate place.

          The army and defence are directly or indirectly in the domain of the National Assembly of Serbia and Montenegro (art.19) based upon the rights of its deputies to: (a) define the functioning of federal institutions (pr.1); (b) declare and terminate a state of war by previous agreement with the assemblies of the members states (pr.3); (c) adopt laws and other acts pertaining to »military issues and defence« (pr.4), as well as (d) »the yearly revenue and expenditure necessary for financing duties vested to Serbia and Montenegro on the proposal of the competent member state bodies and Council of Ministers« (pr.10). Three out of four tangent authorities are more or less clear. It is possible that the second part of paragraph 4 includes adopting laws on defence and strategic defence. However, we can only presume the meaning and scope of the acts pertaining to »military issues«. What are these issues and how will they be regulated by the laws and other acts? According to article 19 of the Charter, we know that the Assembly (Union) will do this, but we don’t know who will consider this and in what form. Doubts may have been eliminated had there been word that the systemic status of the army and its members, as well as relations within it, would be defined by law. Broader interpretation and having enough reasons, the Assembly could have the right to decide for the army and defence on membership of Serbia and Montenegro in international organizations (pr.5) - for example, the program of Partnership for Peace or NATO; to define the borders between Serbia and Montenegro (pr.6); to ratify international agreements of Serbia and Montenegro (pr.9), and to choose the president and council of ministers (pr.12).

          However, the Assembly power of control has been reduced already in the first paragraph of article 19, in which, along with the right to amend the Charter, it was granted the authority to »adopt legal and other acts«. Therefore, the Assembly does not have the authority to control or oversee any area it regulates. We can agree that the authority to (not)elect the president of Serbia and Montenegro and the Council of Ministers, gives it considerable controlling-overseeing power, i.e. also in the part of the military-defence affairs that are in the authority of these two organs. Along with this, control of constitutionality and legality in the army and defence, is vested to the Court of Serbia and Montenegro (art.46, pr.4 and 5). By adopting a defence strategy, the Assembly will also approximately determine the nature, volume, and use of the army and defence. It is, however, stripped of its explicit power to measure the army and defence through the budget (»annual income and expenditure«, as it was formulated in the Charter) and to verify their functionality by controlling the money spent. In addition, the Assembly does not have an influence on the choice, nomination, and appointment/dismissal of the highest-ranking military officials - for example, the Chief of General Staff. Along with this, the Assembly has no authority on the protection of human rights, concretely, members of the army and/or citizens falling within the jurisdiction of the army, and this, in spite of article 9 of the Charter (pr.3) that Serbia and Montenegro »monitor exercising human and minority rights and civil freedom and ensuring their protection, in the event that this protection is not ensured in the member states.« In this way, citizens and army members are denied the right, among other things, to appeal to the Assembly and its bodies for the protection of their rights. It remains to be seen whether this possibility will be given by the Charter on the human minority rights and civil freedom, which will be a constituent part of the Constitutional Charter.

          It is difficult to expect that the Assembly will compensate these faults in the Rules of Procedure of its work, because it will not be able to exceed the boundaries of its prescribed authority to only adopt legal and other acts.

          Article 53.

          Paragraph 1: »The task of the army is to defend Serbia and Montenegro in line with the Constitutional Charter and the principles of international law that regulate the utilization of force«.

          The malicious reading of the contents of the first paragraph of this article leaves the impression that it was only in vain to expect that the constitution makers would assign the army clear tasks, as it was not clear and still is not clear to them what kind of a joint Serbia and Montenegro this will be. For this reason, it seems to have been the easiest solution for them to assign the army general tasks, whatever meaning they may have. Presuming that the authors, pressured by Djukanović’s teams, avoided all qualifications (sovereignty, territorial integrity and independence), which would designate the Union in any way as a political or state entity, even if it already is so by its international subjectivity. Avoiding to precisely define the defence tasks of the army, they left room for ad hoc interpretation, i.e. left room for subsequent additional connotations according to the momentary political and security needs of power holders.

          In the above-mentioned paragraph, the army is denied of its classical constitutional tasks of defending the territorial integrity, sovereignty, independence, and constitutional order of the Union. Leaving out the defence of the constitutional order can easily be justified by bad experiences with the JNA and VJ, because, on this basis, both were misused in Yugoslav wars, as well as for the forceful defence of Slobodan Milošević’s rule. The renunciation of military defence of sovereignty, thus logically follows the temporary character of the Union, as well as the fact that it doesn’t have original sovereignty. We feel free to presume that leaving out the defence of independence was conditioned by difficulties in creating a concrete and precise notion because it is a Union, whose sovereignty and independence will be (still is) restricted by the NATO and UNMIK protectorate in Kosovo and Metohija. It is also because of the voluntary decision of its makers to »integrate into European structures, especially the European Union« (art.3, pr. 3), which requires previous acceptance of restricted sovereignty and reduced independence in the state.

          Despite this, based upon on article 5 of the Charter, it can be said that the army will, in fact, defend the territorial integrity of the Union. Since the »border of Serbia and Montenegro is inviolable« (second paragraph), and the »the territory of Serbia and Montenegro consist of the territories of the member states of Serbia and Montenegro« (first paragraph), it is logical that the army, protecting the inviolability of the Union borders, eo ipso will defend its territorial integrity. Referring to international principles that regulate the utilization of force, the makers make the same conclusion, since in the UN Charter in article 5 Chapter VII confirms for every state »the innate right on individual and collective self defence in the event of an armed attack«, while the Final act KEBS (Helsinki, 1975) requires respect of the state sovereignty » including, especially the right of every state to legal equality, territorial integrity, freedom and political independence.«

          Paragraph 2: »Defence strategy shall be adopted by the National Assembly of Serbia and Montenegro in accordance with the law.«

          It should immediately be emphasized that granting authority to the National Assembly of Serbia and Montenegro to create the defence strategy in accordance with the law (art.53, pr. 2) is another positive step in relation to FRY and its predecessors. Transfer of this power onto the Assembly terminates the previous monopoly of the army/military leadership and the FRY president in defining the defence strategy, i.e. in determining the sources and perils endangering the defence of the state - the values protected by using the army. By this, it should be expected that the defence strategy of the union will be the final product of "collective" knowledge and public discussions, i.e. to be finally set on a rational basis and free of ideological supplements.

          It is worth mentioning that the Charter authors, by emphasizing the defence strategy instead of the security strategy of the Union, remained below the level of historical requirements and concrete circumstances. In this way the problem of having a secure society and state, whose base is a secure citizen, was reduced to a military-defence dimension. They overlooked the current changes in the meaning and content of the concept of security and defence that have resulted from new, dominant non-military security risks. In the euro-Atlantic region, for this reason, changes occurred in the purpose, composition, and training of the army/armed forces. Today, the army is more focused on the fight against terrorism, international crime, arms, drugs and people trafficking. If we exclude the possibilities of revival of Yugoslav wars, i.e. new wars for territories, resulting in repeated foreign military interventions, there is little possibility that Serbia and Montenegro will ever be faced with a classic aggression. After all, today the security of its citizens is primarily endangered by internal risks, which are caused by the missing radical separation from the authoritarian regime and forming of regional and pan-European networks of local mafia.

          It appears that the true reasons for strategic »overlooking« done by the Charter authors are derived from the forced character of the Union. Since the EU imposed the joint state, its protagonists, especially DPS and DS, hurried to in advance deprive this state of its security power, although the EU, into which the local power holders apparently want to integrate Serbia and Montenegro, proclaimed joint foreign and security policy. It is easy to see through the motives of DPS and DS, as having a (joint) security strategy would require at least coordination of the work of the army, police forces of the republics, military and civilian secret services, as well as paramilitary forces, and this is what the power holders of Serbia and Montenegro would like to avoid at all costs.

          The main troubles will ensue when defining the defence strategy of the Union. We presume that the authors, in the introduction, will list all the unspecified forms and perils of endangering the Union’s defence. In order to then assign reasonable and comprehensible tasks to the army, it will take a creative imagination, because even if in the defence tasks all aims of the Union 4 are included, it will not be easy for them to proclaim them as societal/state values to be defended by the Army. All the more, by strategically defining the tasks of the army, the authors (Assembly) will not be allowed to mention territorial integrity, sovereignty and independence of the joint state. We must remind you that the Assembly in Strategy, based upon the »budget«, must determine how big and what kind of army is needed in Serbia and Montenegro. We ask ourselves how will it do this, if before this, it hasn’t been able to coherently establish the purpose of this army.

          Article 56.

          Paragraph 1: »The Supreme Commander of the Army shall be the Supreme Defence Council, which will decide on the utilization of the army of Serbia and Montenegro.«

          It is apparent the constitution makers of the FRY took the model of collective supreme commanding over the army. Maintaining the institution of the Supreme Defence Council (VSO) principally guarantees the equality of member states. In this way, the president of Serbia and Montenegro, as opposed to his predecessors, is denied executive commanding over the army. According to this, the only paragraph which proclaimed the FRY president superior to presidents of the republics was revoked. The equal status of the three presidents was additionally supported by the fourth paragraph of article 26 of the Charter, by which the president of Serbia and Montenegro is only a »member of the Supreme Defence Council«. Since the VSO can only collectively order the utilization of the army, dangers of individual mis(use) of the army have been principally removed.

          From the mentioned paragraph, however there is a new doubt about the Commission’s devotion to the democratic civil control of the army. Namely, when supreme commanding was granted to the VSO, the Commission was obliged to define to whom the Council and its members are responsible for their (non)acting. The president of Serbia and Montenegro is responsible to the Assembly that elects him, for the work he performs and as a member of VSO also (art.28). However, two members of VSO remain out of its jurisdiction: the president of Serbia and the president of Montenegro. The thesis that each one of the answer to the citizens and/or the assemblies of the member states is only partially true because the consequences of their commanding cross the borders of the member states, or rather cover all of the citizens of the Union. Therefore, in cooperation with the president of the Union, they can use the only, but dangerous force of compulsion at the disposal of Serbia and Montenegro, and then not answer to anyone for this. If member states, in their constitutions define who their president answers to for the decisions of VSO, this will then only be individual responsibility, because the VSO will always be excluded from it as a collective commander of the army and separate body of the union.

          It is interesting that the authors of the Charter avoided to define in this article or rather in section VIII, the possibilities and conditions for use of the army abroad, which was discussed by the Sub-commission. In paragraph 7 of the Draft text, two formulations for this were proposed. The DPS representatives proposed that the army could be used only »in the service of international organizations«, on the basis of a decision made by the Assembly and this only after receiving consent of the assemblies of the member states. The rest proposed that the army, on the basis of the decisions of the Union Assembly, can participate »exclusively in peaceful and humanitarian operations.«

          Let say that leaving out the paragraph on the use of the army abroad was implicitly aimed at removing uncertainties in the possibility of offensive attacks against its neighbours. It remains unclear why the Charter authors avoided to define whether the army would or under which conditions could it participate in international peacekeeping operations. By this manoeuvre, the Commission only delayed taking a clear position of the Union towards responsibilities for integration into the euro-Atlantic union. Within these responsibilities, under the circumstances, are the fight against terrorism and participation in peacekeeping operations of the UN, as well as NATO, if and when authorized by the UNSC. For this reason, the Assembly may have to, in the near future, amend the Charter, of course, if the Union survives until then. If, however, this topic is subsequently defined by law or the Defence Strategy, all VSO decisions on the use of the army abroad will have a lack of legality and legitimacy, because it will not be backed up by the constitutional act, according to which modern states and sovereign citizens usually take a position on war and peace, i.e. the use of its army.

          Paragraph 2: »The Supreme Defence Council shall be comprised of the president of Serbia and Montenegro and the presidents of the member states.«

          The composition of the Supreme Defence Council is stated precisely in this paragraph. The paragraph, however, does not infer anything about the activities of the collegial commander. It remains unclear who and according to which procedure convenes the meetings, who chairs the meetings and formulates the proposals of commanding acts. We agree that defining these procedures is not among constitutional topics. But, at the same time, we are obliged to remind that a lack of a precise procedure in collegial commanding of the army, from the experience of the JNA and VJ, leaves room for possible political misuses by leading generals and military secret services, as well as party nepotism in the army.

          This topic will probably be defined by the Law on the Army and Rule of procedures on the work of the VSO. We prefer legal regulations, since it offers the greatest transparency of the commanding procedure. At the same time, the status and domain of work of the military cabinet of the FRY president, which will most likely be transformed into the VSO service, should be stated precisely. For two reasons favour this: first, transferring direction of the work of the army to the Defence Minister (art.41) excludes the military cabinet from operative activities, and also, it is necessary to revoke all informal sources of power of the Cabinet, i.e. president or members of the VSO over the military elite.

          Paragraph 3: »The Supreme Defence Council shall make decisions by consensus.«

          By introducing consensus into group commanding over the army, even if it seems democratic, creates numerous dilemmas. Group commanding is disputable from the point of view of the (wartime) use of the army and nature of the military organization. This could be, and is, a forced response to having a complex state. This is why the commanding consensus can spare Serbia and Montenegro of repetitive bad experiences with the JNA and VJ, as the order for decisions to be made by consensus principally excludes every majority outvoting in the VSO, i.e. additionally protects the interests of the members. However, the automatic implementation of consensus contradicts a one-line chain of command as the basic principle of the military organization. Moreover, it can block the decision-making of the VSO, and especially during war, leave the army without timely command. This problem in the Charter, for example, could have been moderated by separating decision-making in peacetime and wartime or by the statement that the VSO principally make decisions by consensus, but to leave its details to the law on defence and the army. It was also possible to list the (crucial) decisions of the VSO in the Charter that require consensus.

          The situation is additionally complicated by the way that the authors defined the authority of the Defence Minister. Determining that the defence minister is a civilian (art.41, pr.3), we admit they strengthened the supremacy of civilian authorities over the army. Also, the right of the Council of Ministers is to »define and implement policies of Serbia and Montenegro, according to defined mutual policies and interests of the member states« (art.33, pr.1) consistently transformed into the duties of the defence minister to »coordinate and implement defence policies« (art.41, pr.1).

          The problem arises with the interpretation of his additional responsibilities from the first paragraph of article 41, to »direct the work of the army in compliance with the law and authority of the Supreme Defence Council.« From the text, it is clear that the law will prescribe the responsibilities of the minister in directing the work of the army. It is not, however, clear whether the minister will undertake the authority of the VSO (which?) or will the VSO authorize him for something (what?). If they really wanted to authorize the VSO to transfer its (which?) power to the defence minister, then the VSO should have been authorized to control the way the minister uses it. The Charter, however, does not stipulate that the VSO should transfer its (commanding) power onto anyone else. All the more, transfer of powers would also include giving separate instructions to the minister on their implementation, but the minister is not subordinated to the VSO. On the contrary, he is a member of the Council of Ministers and together with other ministers, he is responsible to the Assembly for his work (art. 37).

          The first paragraph of article 41 also stipulates that the minister directs the work of the army while the VSO commands it. Simply speaking, this obligates the minister to prepare the army for defence assignments defined by the VSO. The future legislature will have the difficult task to determine whether it is possible to direct the work of the army without having the right to command it, i.e. to define the supreme commanding of the army, which excludes previous and/or successive managing of it. Even if it were possible, it still remains unclear which place the minister has, if he has it at all, in the chain of supreme commanding of the army.

          From the Charter, it cannot be discerned whether the VSO commands the army directly or through the Defence Minister. The charter, as we warned, does not subordinate the Defence Minister to the VSO, nor does it claim that the VSO should command through the General Staff. This is why the relations of the Defence Minister and General Staff cannot be discerned from the Charter text. Since the minister directs the work of the army, the General Staff should be subordinate to him. The minister, however, can only direct the work of the General Staff and army, but not command them. Conversely, the VSO will be able to command the army but not direct its work. It is therefore possible that the General Staff and army will be torn between two orders, one coming from the direction of the minister, and the other from command of the VSO.

          Paragraph 2 of article 41 creates new dilemmas, because it authorises the Defence Minister to »make recommendations to the Supreme Defence Council on the nomination of candidates and appoint, promote and dismiss officers from service in accordance with the law.« This order, without a doubt, introduces another civilian instance in the process of selecting and promoting military officers. This topic stipulated by law will create the formal conditions for terminating the inherited practice of secret and arbitrary selection of officers (generals) for the highest military duties.

          From the mentioned paragraph, it is clear that the nomination of the officers (to certain positions?) is separate from their appointment, promotion and dismissal. It remains unclear why the VSO was not authorized to dismiss officers because if it is to nominate someone for a position, it must previously dismiss somebody else from that position. In this way, it turns out that the Supreme Commander nominates, and a body that is of lower rank - the Defence Minister - appoints and dismisses persons that were previously nominated by the VSO, i.e. the Defence Minister can even appoint and dismiss officers independently of whether the VSO previously nominated them. It appears to us that the military staff could have been organized better had one of the following solutions been applied: first, authorizing the VSO on staff issues, which it will apply only upon recommendation of the Defence Minister, and second, delegating all powers to the minister, whose execution requires previous consent of the VSO. Both solutions comply with the principles of democratic civil control, because they would introduce a »check and balance« in between these two authorities. It would also be good that the constitutional authors included rules of taking into consideration the recommendations of the Assembly or its competent committee for nominating, appointing, and dismissing the highest military officers, for instance the Chief of General Staff.

          Article 57.: »Conscripts shall serve the army on the territory of their respective member states, with the possibility of serving on the territory of the other member state, if they wish so.«

          This provision, although unusual in modern states, reflects the spirit of the Charter, i.e. the nature of the Union. Since the Charter excludes the internal utilization of the army - defence of the constitutional order and territorial integrity - this does not present a problem for the conscripts to choose where they will serve the army. Moreover, this new provision practically thwarts or at least hinders unconstitutional use of the army in defending a regime or its use against another member state. It is improbable, although not impossible, that conscripts would agree to use arms against their fellow citizens. This provision is in core rational, as it reduces the expenses of sending conscripts to serve in the army, as well as the expenses of visits from their families and relatives. At the same time it narrows the possibility of corruption in the army, making it unnecessary to seek connections in order to be assigned a location of choice for service.

          The aforementioned is in fact applicable only in peaceful conditions. Problems could arise in wartime. Serving the army during war has not been excluded from this provision. This is why as long as compulsory military service is in effect, the manoeuvre capabilities of the army and the supreme command will be drastically reduced. Problems with military reserve units could arise as well, who will expectedly strive to attain this right for themselves.

          Article 58.: »Conscripts shall be guaranteed the right to conscientious objection.«

          By introducing this provision, the authors of the Charter only partially fulfilled the obligation of Serbia and Montenegro (art.10) to directly apply provisions of international agreements on human and minority rights and freedoms of citizens. Here, they only took half a step, as they failed to guarantee the rights of citizens of the Union to an alternative (civil) service, in the duration of military service, that is in accordance with the Resolution 337 (1967) of the Parliamentary Assembly of the European Council as well as the recommendation of the Assembly, no. 816 (1977).

          By not fully guaranteeing the right to objection, the authors left defining the right to an alternative service to legislators. In the process, having in mind our experience, there is a possibility that a restrictive interpretation will prevail, i.e. the citizens will be deprived of fully enjoying one of their basic human rights. It would also have been better had the authors of the Charter transferred this (amended) provision into the Charter on human rights, where, as a topic, is its place.

          Article 66.: »The powers of military courts, prosecutors and legal offices shall be transferred to the organs of member states, in accordance with the law. «

          In the draft text of the Charter, which was made public after the Commission session on December 6, 2002, 5 there was also a provision stipulating »The powers of military judiciary organs shall be transferred to civilian ones , in accordance with the law.« It was classified in the eighth paragraph in the section on »The Army of Serbia and Montenegro«, article 18 of the first Charter draft, completing the topic on defining the status of the army and defence.

          This provision announced a radical split from the tradition of the separate military judiciary process in the former Yugoslavia. Along with it, another source of covert power of the army over the citizens and society was to be revoked. The democratic potentials of this step would be visible only after legal stipulation of this topic and the procedure of transferring power from military courts to regular courts, also.

          For the reasons which were not made public, constitutional authors changed their original position and in the meantime, redefined their first intention. They first excluded the topic on the authority of military judiciary organs from the chapter on the army, and afterwards put it in Chapter XI of the Charter, defining the process of transferring the rights and responsibilities from the FRY to Serbia and Montenegro. Therefore their powers were only transferred to »member state bodies in accordance with the law« (art.66). By this article, however, it was not precisely specified which member state bodies would the power of the military courts, prosecutor's and legal offices be transferred to. Eventual disagreements could be avoided by specifying these bodies using full formulations (it shall be transferred to the courts, prosecutor's and legal offices of the member states) or shortened (it shall be transferred to the competent member state bodies). It is possible that someone for instance, without expertise - the Charter text must be adjusted to average knowledge and education - misunderstands article 66 and believes that member states will establish their own military courts, prosecutor's and legal offices, or that the powers of military judiciary bodies will be transferred to some other member state organ (for example: the government). There is still hope that the forthcoming law will remove all uncertainties.

          We are convinced that the aforementioned conclusions present enough evidence to prove that the Constitutional Charter is an incomplete and inconsistent document. There is no doubt that the authors of the Charter were not able to or did not want to define the status of the army and defence in the Union in a modern way and without remains. To make things more difficult, they only forwarded the crucial dilemmas to future legislators, and did not ensure a strong constitutional foundation for them to be able to do the job well.

          The reasons for this are a result, among other things, of how the Charter was worked on. The citizens of Serbia and Montenegro will have an imposed constitution again, not having any influence on its form or contents. When the Constitution is adopted, it will lack legitimacy. As we noted, this is all a final product of the way the joint state of Serbia and Montenegro was created.

          This is why, under the existing circumstances, the implementation and legal elaboration of the Charter will directly depend on the political will of the power holders in Serbia and Montenegro. Despite the Charter, its citizens will remain in a pre-political state. All the more, there is not enough evidence that the local power holders will engage in the legal elaboration of the charter, i.e. that the Union will survive long enough to implement new legislation. It seems that the army will find itself again in a legal interregnum, leaving it on the margins of reform. This anticipates the continuation of its subtle and covert entropy, that we can only hope in its later phase will not become destructive.

           

          --------------------------------------------------------------------------------

          1 Draft Text of the Constitutional Charter, prepared at the sitting of the Sub-commission from August 5-9, 2002, internal version, 68 pages.

          2 The Constitutional Charter of the joint state of Serbia and Montenegro, Constitutional Commission on drafting the Constitutional Charter of the joint state of Serbia and Montenegro, no. 00-1/02-014, Belgrade, January 14, 2003

          3 See:  Draft text, gen. source, pp. 57-63. 

          4 Article 3 of the Charter includes, among other things, respect of human rights, preserving and promoting human dignity, integrating into European structures, adopting European and international economic standards, creating a free market economy, etc… 

          5 The Constitutional Charter of the joint state of Serbia and Montenegro, Danas, Belgrade, December 9, 2002, pp.4-5  

        • Tags: army, Serbia, democratic control, parliament, constitution, position, Serbia and Montenegro, Constitutional Charter, civil control, Defence, vso, Supreme Defence Council, Serbian Army
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