"Law and Security", the journal

Issue 1 (10), March 2004

Which One Should the National Security Law Be?

V.Y.Varlamov, Counselor of Moscow Government

On December 17th, 1997 persuant to RF President decree No 13001 Concept of National Defense of the Russian Federation was approved, and on January 10th , 2000 persuant to Decree No 242 a new wording of Concept was approved. The Concept is highly important for the state and public; its necessity has been discussed by Russian politicians, scientists, experts for a long time. The Concept highlights threats to national security and drafts the was of its provision. In conformity with part 2, Article 90 of RF Constitution RF President decrees and orders are compulsory for all the territory of the Russian Federation and thus this document established targets for activity of state bodies for protection of national interests. Along with it the Concept itself is not a normative but a political document reflecting the system of opinions in Russian Federation concerning protection of a person, society and state from foreign and domestic threats in different areas of life. That is why development and adoption of law concerning national security seems to be very urgent since it would add up to the existing legislative basis for the security ensuring.

Not minimizing the importance of federal laws regulating activity of bodies and forces of Ministry of Defense of Russia, MIA of Russia, Federal Security Service and other force-possessing bodies I consider that national security law must take the central place among other things. State Duma deputies in their speeches also expressed the opinion that Federal Law "About national security" "shall be basic and outlining frameworks for special legislation intended for Russian national security protection".3 The existing RF Law "About security" was adopted in 1992 under different political and legal conditions, it contains provisions and terms conflicting with RF Constitution of 1993, during reform of Constitution many of its provisions were declared not applicable by RF President. However it is evident that under the present conditions workers of executive federal bodies in question, officers of executive authority bodies of RF entities as well as ordinary citizens are entitled to be provided but the state with the expressed legislative standards which would not give ground to doubt its content and legal force in law enforcement practice.

RF President opinion about the necessity of such federal law was set forth in the letter to State Duma published on 12th November 1997 in "Rossiyskaya gazeta" containing decision in reply to the draft bill "About status of Security Council of the Russian Federation" which was adopted by the chamber in the first reading. In accordance with the opinion of RF President the norm of clause "æ" Article 83 of RF Constitution by no means designates that issue of a separate federal law is needed with regard to the matter of Security Council status. The chief of the state considered it inexpedient to separate the issues of Security Council status definition and regulation of its activity as well as legalization of legal relationships in the area of national security on the whole. As it was mentioned in the above letter in future the issues will be regulated by Federal Law "About national security ".

Among specialists there is an opinion that term "national security" appeared in the USA in post-war period. Once and for all it became firmly established when in 1947 the USA adopted the Law of National Security.4

Difficulties with correct understanding of term "national security" that exist in our home practices and debates concerning relevancy of its use in Russia are possibly connected with the opinion that has formed in this country that a nation is an ethnical and language community of people, a nationality. However understanding of term "nation" as a political and state community, "human substratum of state" is common in modern world (and probably it starts to become one in the Russian Federation).5

To our opinion in Russia definition of term "national security" was for the first time used in Letter by RF President to RF Federal Assembly of 1996 "About national security"6. Let us compare the meanings of notions "security" and "national security" in accordance with RF President Letter and Article 1 of RF Law "About security".

RF President Letter: national security shall be understood as the condition of national interests immunity from domestic and foreign threats, ensuring progressive development of personality, society and state; national interests constitute integrated expression of vital interests of personality, society and state.

Article 1 of RF Law "About Security": security is condition of immunity of vital interests of a personality , society and state from domestic and foreign threats; vital interests, aggregate of requirements which satisfaction reliably ensures existing and ability of personality, society and state to develop progressively.

Apparently the trinity "personality, society and state" belongs to the objects of both notions of "security" and "national security".

We have to admit that RF Constitution does not contain the term "national security". However there such terms as "public security" (Clause "á", Section 1. Article 72), "national security" (Clause "ä", Section 1, Article 114) and "state security" (Section 5, Article 12; Section 3, Article 55). And a number of provisions of Chapter 2 of RF Constitution, and in particular Article 21 ( Section 1, Article 56 contains term "security of citizens") are devoted to security of personality. This also allows to consider the definition of term "national security" proposed by President justified.

RF Council of Federation supported the said Letter by the chief of the state by Resolution of 08.08.96 No 326-ÑÔ7. I would like to draw your particular attention to the above fact as thereby the heads of representative and executive bodies of RF governmental power who at the same time represented the interests of corresponding territories in RF Council of Federation possibly supported definition of term "national security" which contained in the paper.

It is important to take into account the fact that in conformity with Section 4, Article 15 of RF Constitution common principles and norms of international law and international treaties of RF are an integral part of its legal system. In this connection it is expedient to note that term "national security" which is contained in a number of RF international treaties and, for example, in Convention of Protection of Human Rights and Fundamental Freedoms which became valid for Russia on the 5th of May 19988. This also dives us ground to consider term "national security" integrated into Russian Law as well.

In this connection we consider that RF President's statement of the question about need to settle legal relationships in the area of national security by means of adoption of Federal Law "About national security" is quite justified in spite of the opinion of certain authors that such name is inappropriate9. As for the reform of future statutory legal act I would like to stress the following.

Clause "æ" of Article 83 of RF Constitution establishes that status of RF Security Council created and headed by RF President is determined by federal law. At that we should take into consideration that in a number of Constitution articles (for example, Section 2 Article 5, Clause "à" Article 71, Section 3 Article 90) the term "federal law" is used in the meaning of common gender encompassing all kinds of federal laws. Thus in case of regulation of status of RF Security Council altogether with its activity and "legal relationships in the area of national security as a whole" the statement of question about constitutional law adoption for these purposes seems to be legally acceptable. Expediency of choice of the very form of statutory legal act in order to reach the set task consists in the following.

Generally vital interests of a person (acknowledgement, observation and protection of rights and freedoms of a person and a citizen), society (obligatoriness of social orientation of activity of all institutions of authority) and state (integrity and inviolability of territory, sovereignty, unconditional observation of laws) are envisaged by Chapter 1 of RF Constitution "Basis of constitutional system of the Russian Federation". Thus social relations arising from the fact of national security ensuring are of constitutional nature with regard to their essence. That is why it is better to legally regulate the area of national security by means of federal constitutional law.

Section 1 of Article 108 of RF Constitution establishes that federal constitutional laws are adopted with regard to the issues envisaged by RF Constitution. A number of RF articles directly names such issues (regime of martial law, circumstances and order of martial order introduction , precedence rule of RF Government and other issues). However Section 1 of Article 76 of RF Constitution devoted to the matters of federal legal regulation only establishes that federal constitutional laws as well as federal laws are adopted with regard to the issues of competence of RF among which there is such issue as security (Article 71 of RF Constitution).

Also it seems to be true that precepts of law consolidating the principles, i.e. fundamental points of national security which establish the aims of all the system of national security, are called to act as a legal basis during the development of certain federal laws regulating the activity of Ministry of Internal Affairs of Russia, Federal Frontier Guard Service of Russia, Foreign Intelligence Service of Russia, and other "defense structures"; they must certainly have a higher level legal power if compared with the provisions of the laws regardless the dates of their adoption. In other case legal principle "lex posteriori derogat priori"- "a law adopted later terminates the earlier adopted law" would be applicable, as it follows from legal position of RF Constitutional Court set forth in Decision of 05.11.99. And that is why the percepts of law must be included just in a federal constitutional law and the provisions of such law would develop and provide details to "common" federal laws in certain spheres of security. That is why it is hardly expedient to issue a federal constitutional law with regard to such RF matter of competence as defense as in essence it is certainly important though just a segment of national security; it is aimed at ensuring of protection of the country mainly from foreign threats of military nature.

Possible content of draft bill "About national security"

Preamble of the law concerning the principle is intended for giving ground to law adoption or declaring its aims. Preamble of draft bill "About national security" could express the idea that "the present Federal constitutional law secures legal basis and principle of security of personality, society and state ensuring, it establishes the system of national security and its functions, powers of public authorities and local governments in the area of national security, order of their activity control and supervision as well as determines the status of Security Council of the Russian Federation". It would be advisable to correspondently formulate and structure the norms of such draft bill.

Apparently Section I "General provisions" must define general ideas, principles of national security provisions, ways of national security provision; indicate legal basis of the activity aimed at national security provision (it would be advisable to devote a separate article of national security Concept draft bill). It would be expedient to mention probable participation of citizens and their associations in national security ensuring in the same section.

The series of articles included in Section II of the draft bill could contain norms of national security system, of main functions of the system; distribute authorities in the area of national security provision among RF President, federal public authorities, RF entities public authorities.

We consider it appropriate to legislatively define the status of RF Security Council, its targets and functions; to determine on the whole the purpose of inter-departmental commissions of Security Council, of Scientific Council under Security Council and of Security Council Staff In the very Section II. As it was already mentioned above Security Council is mentioned in RF Council only in Clause "æ", Article 83 which is mainly devoted to RF President authorities. That is why legislative establishing of the fact of which officers shall be included in the constitutional body is probably intolerable since it is not a definition of Council status and at the same time it implies intrusion upon exclusive powers of President to form the body. Today only President is designated as Chairman of RF Security Council on legislative level and only in Article 32 of Federal constitutional law "About Government of the Russian Federation"10 which truly reflects its supremacy with regard to this body.

Besides that taking into account that Security Council is a body under RF President it would be lawful to approve the provisions about Security Council, its executive bodies11 and stuff by corresponding President's orders which would in more detail regulate functioning and cooperation of the structures. It seems to be necessary to envisage issue of such decrees in the section of the draft bill.

Under conditions of main form of Security Council and its inter-departmental commissions operation being consideration of corresponding matters at their meetings, the Council staff is very important as it prepares these meetings and develops the projects of proper decisions. Today its tasks and functions are in detail regulated by Statute about staff of RF Security Council approved by RF President Decree of 28.03.98 No 29412. In accordance with the Statute Security Council staff is an independent subdivision of RF President' Administration and has a status of central administrative board. Thus the staff of one constitutional body is a part of another one. Norm of Clause "è" of Article 83 of RF Constitution is the legal basis for such an approach. In accordance with it President sets up its Administration and, respectively, is entitled to include Security Council staff into it as a subdivision.

Such status of the staff being obviously high though has its own disadvantages. They include, for example, the fact that Secretary of RF Security Council lacks "an officer of the Russian Federation who is directly accountable to President of the Russian Federation"13; authorities to independently approve list of members of the staff, appoint its officials as well as authorities with regard to efficient disposal of financial means.

In this connection we consider justified that it is better not to fix in the draft bill the present status of the stuff (in conformity with the above constitutional fixing only status of Security Council requires legislative definition) allowing the fact that it could be possible for head of state to alter the present situation in future and to detach RF Security Council staff as an independent body dealing with support of Security Council and its bodies' activity. In this respect Security Council staff being excluded from the united system of RF executive authorities may be endowed with some coordinative functions especially in case of crisis situations with the view to provide the conditions for realization of constitutional authorities of RF President.

The same draft bill section may include general provisions concerning the aims of bodies and forces of national security ensuring (the special ones shall be regulated by the above federal laws about police, frontier guard service, foreign intelligence etc.).

Section III of the draft bill could generally determine the order of financing of national security ensuring as well as regulate the issues of control and supervision of national security provision. At the same time it seems to be expedient (both taking into consideration the threats to national security and in order to increase the maintenance level of respective bodies) first, to establish that additional financing of the said activity may be made at the expense of non-governmental funds and voluntary donations by legal entities and physical persons and, secondly, that such voluntary donations are supported by public authorities and local governments in the order determined by federal law with regard to charity. We consider that such a norm would allow to apply, if needed, respective provisions of Federal Law "About charity and charitable organizations"14 as well as to soundly provide tax privileges to the said persons and entities in conformity with the legislation (financial assistance and other welfare to the state in connection with public protection form domestic and foreign threats is obviously a socially-oriented activity).

And finally, Section IV could include final provisions about joining into force of such Federal Constitutional Law and about claiming RF Law "About security" null and void.

Varlamov Vadim Yurievich - former officer of Legal Department of RF Supreme Soviet Staff, Administration of RF President (specialist-expert of Main State Legal Department of RF President, Counselor of RF Security Council Staff, Assistant of Secretary of RF Security Council), Counselor of Department of Staff of Government of Moscow. 3-class Full State Counselor of the Russian Federation.

Notes:

1. Code of Laws of the Russian Federation (hereinafter referred to as "CL of RF"). 1997. No 52. Article 5909.

2. CL of RF. 2000. No 2. Article 170.

3. Bilalov A.G., Gatin R.R. Legislative provision of national security in the making of RF statehood// Law and security. 2002. No 4 (5). p. 108.

4. Telegin V.I. History and sociology analysis of sociology and the idea of sociology development with regard to the problem of national security// Security (Information collected articles of National and International Security Fund). 1995. No 2. pp. 78-91.

5. Constitutional (public) law of foreign countries. T. 1-2. General section. M., 1996. pp.105-106.

6. Diplomatic bulletin. 1996. No 7. p. 33

7. CL of RF. 1996. No 34. Article 4059.

8. CL of RF. 1998. No 20. Article 2143.

9. Raldugin N.V. Legal examination of draft federal bills., 2001. p. 51.

10. CL of RF. 1997. No 51. Article 5712; 1998. No 1. Article 1.

11. See RF President's Decrees of 01.08.97 No 1317 "About improvement of activity of Scientific Council under Security Council of the Russian Federation " (CL of RF. 1999. No 40. Article 4820), of 30.09.99 No 1326 "About Inter-Departmental Commission under Security Council of the Russian Federation for preparedness activity and mobilization" (CL of RF. No 40. Article 4822), of 01.09.00 No 1603 "Issues concerning Inter-Departmental Commissions under Security Council of the Russian Federation" (CL of RF. 2000. No 37. Article 3701).

12. CL of RF. 1998. No 14. Article 1536.

13. Clause 14 of Statute about Security Council approved by Decree by President of the Russian Federation of 202. 08. 99 No 949 (CL of RF. 1999. No 32. Article 4041).

14. CL of RF. 1995. No 33. Article 3340.

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