Chapter 7 Domestic Legislation This chapter is concerned with the recognition in domestic law of the human rights of members of the armed forces, whether civil and political rights such as the right to vote and to participate in political affairs, privacy, freedom of expression and so on, or social and economic rights, such as social security, education, and housing. This is a narrower focus than military law in general, much of which is concerned with imposing specific legal duties upon members of the armed forces to underline the disciplined environment in which they operate, e.g., dealing with issues such as desertion, absence without official leave, insubordination, mutiny, aiding the enemy, and sleeping on duty. We are not concerned in general with such offences in this study, although human rights aspects of military justice procedures are examined in Chapter 21. However, the rights of members of the armed forces may also be spelled out in law. One advantage of doing so explicitly, rather than relying upon general constitutional or legal provisions applicable to all citizens, is that the legal parameters of the rights in question can then be specified in a way that is appropriate to a military environment. This chapter deals first with the need for defence legislation, and then with its scope, with the connection between legislation and broader methods of parliamentary accountability. We address these matters because the human rights protection given to members of the armed forces operates within a broader context of the position of the military within a democratic state. Finally, the chapter deals with legislation and the human rights of armed forces personnel. 1. The Need to Legislate on Defence Matters The rule of law is a fundamental and indispensable element of democracy. National security should not be used as a pretext to abandon the commitment to the rule of law that characterizes democratic states, even in extreme situations. The need for legislation and parliamentary accountability to govern the armed forces is also recognized by a range of international organizations, as Box 7.1 indicates. Legislation is the legal embodiment of democratic will. In most states, approving legislation (along with scrutiny of government actions) is among the key roles of the parliament. It is therefore appropriate that, in democracies, where the rule of law prevails, the armed forces derive their existence and powers from legislation, rather than from customary or common-law powers such as the common-law doctrine of prerogative. Legislation enables conscious consideration and design by law-makers of the principles in this area, rather than their evolution or chance survival from a different historical era. Moreover, in order to claim the benefit of legal exceptions to human rights standards for reasons of national security, it is necessary that the armed forces derive their authority from legislation. The competence to legislate on defence matters is often dealt with by the constitution. In this sense, it is a constitutional duty for parliaments to legislate. However, there are also pragmatic considerations. Parliamentary involvement gives legitimacy and direct democratic accountability. It can help to ensure that the armed forces are serving the state as a 47 Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel