New International Law

February 21, 2007

Accountability and Transparency of the Security Sector to the Parliament. Special Parliamentary Instruments and Methods of Democratic Control of the Security Sector

The Security Sector represents an area of national politics which is particularly subjected to the system of checks and balances of governance in an open and democratic society. Since the security sector comprises the security forces themselves as well as the civilian authorities responsible for their use, the issue of security sector accountability and transparency leads far beyond mere civilian control over the military. The security sector, as encompassing the nation’s human and material means to use force, is comprehensively interwoven with the overall fabric of society in a political, economic, and sociological sense and therefore touches upon all facets of civil-military relations. The necessity to ensure accountability of those who hold executive responsibility in security and defense affairs derives from the immense power that rests with this bestowment and is mostly directed toward the legislative authority, the parliament, as the representative body of the people. To provide transparency with respect to how the nation’s means of force are administered rests with both major parts of national power, the executive and the parliament, and is primarily oriented toward the public.

While the responsibility for the overall guidance of the armed forces and the basic organization, formulation, and implementation of national security and defense policies resides on the part on  the executive power, the task to pass fundamental laws on defense and to ratify policies and the deployment of forces is normally conferred to the parliament. On top of the legislature’s responsibility, however, we find the authority to exercise parliamentary oversight over the security sector including the budgetary control, the ‘Power of the Purse’ function of parliament as the most powerful tool of the legislature.

In this sense, the parliament has the power to influence the way in which the government designs, implements, and executes the security and defense policies of the nation. It does so by legislation, budgetary decisions, approval of major procurement and defense policies, establishment of committees, etc.

The constitution provides the basic legal provisions for the responsibilities and accountabilities within the security sector.  It determines the rights of the executive authorities to guide and lead the organizations working in the security sector and holds the latter responsible for their actions toward their head executives and, at the same time, establishes the accountability of the executive to the parliament. The Constitutional provisions define the basic political and parliamentary instruments for control and provide the tools for securing democratic oversight of the security sector. The general powers of the Legislature are to initiate laws, to make amendments and appendages, to approve the budget for defense and security, to overview and amend the budget funds, and discuss the appropriate numbers for funding and adequate policies for the security sector in committees.

From this context arises the Legislature’s stake in the development of security policy concepts, its responsibility regarding force structures and defense strategies, personnel planning conceptions,  and in certain cases the approval of major appointments in the defense establishment. The parliament also has the final authority in sending troops abroad and to decide on the participation of military forces in international missions. It approves their mandate, identifies the magnitude and duration of a mission, and defines the rules of engagement and the operational jurisdiction. Another general prescription concerns procurement decisions, the right to approve or reject contracts related to weapons, military equipment, supplies and armament.

Parliamentary oversight of the security sector is an essential element of the arrangement of checks and balances built in democratic constitutions, serves as a counterbalance to the executive power (which deals with security issues on a daily level), attributes to policy effectiveness, and monitors the executive on security matters. The members of parliament have to exert constant oversight on weapons procurement, arms control, and the preparedness of the armed forces. To fulfill that commitment, parliamentary factions designate defense speakers and establish defense committees. Legislative debates on defense issues contribute to the creation of an informed public ready to participate in a constructive and sophisticate dialogue on security policy issues. The transparency of this process of open debate and decision legitimizes both the armed forces and defense policy.Good governance, as an effective cooperation between defense sector exponents and parliament, is a conditio sine qua non for democratic oversight of the security sector and demands “predictable, open and enlightened policy-making, a bureaucracy imbued with a professional ethos acting in furtherance of public good, the rule of law, transparent processes and a strong civil society participating in public affairs.” (The World Bank’s Experience, World Bank 1994). The debate on security issues is going through several phases: 1) the development of security policy, 2) the decision-making phase, 3) the implementation and evaluation of the pursued policy.The role of the parliament in the development of a new national security policy is limited because this is primarily a competence of the government. However, an important role for the parliament lies in the task to make the process transparent to the public, and by doing so, exerts indirect influence on the shaping of policies. Parliamentarians also have to argue the rationale of emerging new security concepts, have to make clear why change is required, and win the public’s support and understanding.  Parliamentary committees provide expertise on subject matters and are often consulted in earlier stages of policy development, when the draft is in process of elaboration or in order to provide time for reflection and consideration. Committees also use the discourse in order to get inputs for the development of associated legal norms.The second phase commences with the official arrival of a proposal for amendment or the realization of a new legal provision at the parliament. Particularly when established defense committees reject or suggest changes to draft documents, the proactive and decisive role of the legislature in the decision making process becomes visible. The passing of defense legislation and the parliament’s approval of security policies are acts considered to be most important factors in democratic civilian control as they are supposed to represent the people’s broadest consent. The issue of transparency and accountability manifest itself fully when it comes to monitoring and scrutinizing public expenditures and financial demands of the government. The instruments and mechanisms used by parliament to control policy execution and supervising the administration are common for most of the democratic system and usually include parliamentary debates, questioning and interpellations, and parliamentary inquiries as a means to obtain information from the executive. Parliamentary debates on security issues are conducted when the executive reports on defense or foreign affairs, during the presentation of strategic reviews or other major defense documents as well as in connection with budget proposals and governmental programs concerning security matters. The interpellation is a procedure of attending to members of the government, either ministers or representatives of concerned ministries and departments, and has two characteristics: to raise general debate and to carry political sanctions. The interpellation is the most direct form of control and ends with a vote expressing the approval or disapproval of the parliament with the explanations given by the executive. The purpose of the procedure of questioning is to educe concrete information from head representatives of the executive in order to obtain detailed facts which can clarify complicated bills laid before the parliament. The widely used practice of parliamentary questioning is normally preceded by a set of questions handed to federal ministers by parliamentary factions which grants the executive time to carry out their own interagency investigations and prepare detailed answers.  This should provide for timely, accurate, and updated information on issues of defense and security questions, help the parliament to control the implementation of the security related policy, keep executive bodies and organs answerable for their doings, and to generally provide transparency on security and defense subjects to the parliament in its entirety and via the media to civil society as a whole. The instrument of questioning also serves to redefine policies to exert further influence on political agendas. Another common foundation for democratic societies in the implementation of democratic oversight is the establishment of specialized defense committees and, at times, intelligence committees to oversee government policies, as well as, to examine operations and performances of security sector organizations in the field. The size and the special focus of committees allows for scrutinizing subject matters more closely and also offers a better opportunity to attain to compromises or find consensus among different political parties on important security issues. In this sense the committees are most influential on preparing new legislation or amendments, also providing expertise and advise for executive drafts or petitions before their submission to the parliament for full debate. Committee reports grant guidance to legislators on the floor regarding their discussions and their final on the issues. The security clearances of parliamentarians serving on defense committees allow them to conduct secluded hearings when secrecy is required, however, beyond the boundaries of national security, committee representatives also provide for the essential level of transparency toward society and the public. A number of legal provisions and mechanisms authorize committees to access and scrutinize the expertise necessary to exercise oversight of the security sector. These competencies include the right to request government documents, summon witnesses (including ministers and state secretaries), and hold public hearings. The nature of the security field often produces bureaucratic unwillingness to reveal information, a phenomenon normally exacerbated when intelligence services become involved. In many countries of eastern and southeastern
Europe the practice of policy makers and military representatives who have been historically accustomed to operating behind a curtain of secrecy and unaccountability constitutes a heritage which is still to be overcome.
In any event, parliament alone cannot guarantee effective oversight of all executive activities and policies within the security sector. Other national institutions also responsible for overseeing the security sector, such as the judiciary and the general auditing office, have to join in. An important role is being played by civil society mostly as far as the use of think tanks, research institutes, and academic circles are concerned, all of whom are tasked to engage in public debate, contribute expertise on specific issues, and offer alternative courses of policy action. Stimulating the existence of a nongovernmental defense community supports the objective to foster transparency and accountability in the sensitive field of the security sector.The media serve as the major link between state institutions and civil society at large, including the broad range of organizations and institutions dealing with security affairs. They help the public and their representatives to grasp issues and articulate their interests. They largely contribute to overseeing the action of the three branches of state power and raise the debate in the society on particular questions, which in turn could have an impact on the decision-making process in the government and among the legislators. From a democratic and good governance perspective, the media have the right to gather and disseminate information on security related issues in the interest of society and to contribute to transparency and public information following the principles of fairness and objectivity. 

All procedures and mechanisms built in constitutional provisions and laws to promote accountability of the executive toward the legislature and bind both to the constitutional principles are not an end in itself. They serve the overall goal of assuring the nation of most efficient security policies that contribute to the best interest of society while striking a balance between the need for security and the upkeep of democratic freedom and civil liberties.

author: Viara Zaprianova Marshall, legal expert, International Law and Politics


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