Chapter 6 General Constitutional Framework This chapter concerns the treatment of armed forces and the rights of servicemen at the constitutional level. It first explains the relevance of constitutional provisions in this area, especially within the movement towards democratic reform. It then examines the ways in which constitutions apply to the role of the armed forces, especially in defining their mission and in providing for constitutional approval of decisions to deploy the military, whether in wartime or in peace-keeping operations. Finally, it deals with the constitutional rights enjoyed by service personnel and the impact of these rights on military justice. 1. Issues at Stake A clear constitutional basis for the armed forces is important for several reasons. In nearly all countries, a written constitution provides the basis for the legitimacy of state institutions, and the armed forces are a key state institution, one that protects citizens, territorial integrity, the system of government, and essential services.47 These vital tasks should be clearly recognized and brought under the constitutional order so that the military is not beyond the law. In that way, the military will enjoy legitimacy and the support of democratic institutions. Although the security of the state may ultimately be founded on the possible use of force, such force should be used in support of the constitutional order, and not above or beyond it. Constitutions commonly deal with the following matters: • Legal structure: legislative mechanisms, principles governing non-legislative sources of power (e.g., royal prerogative), procedures for passing emergency legislation, constitutional provisions for derogations from human rights, processes governing entering international agreements for security co-operation; • Accountability mechanisms: the allocation of authority for national defence, security, and intelligence between branches of the state; prohibition on defence or security officials holding parliamentary or ministerial office; powers of the legislature; constitutional powers of the courts (e.g., constitutional review); • Independent review: security of tenure for officials, constitutional guarantees for independence of the judiciary, the position of military courts; • Individual rights: As citizens in uniform, members of the armed forces enjoy constitutional rights and freedoms. In addition, a number of constitutional provisions deal in detail with the right of conscientious objection to military service (see Box 6.2 below). In transition states especially, the adoption of a new constitution is a significant watershed in bringing the military under civilian control and ensuring its future political neutrality. The constitutions of transition states commonly contain explicit guarantees defining and limiting the role of the military. For the armed forces themselves, the constitution provides a firm foundation for their actions in times of crisis. Hence, the constitution may deal with the prerequisites for engaging in armed conflict and specific powers or duties during a state of emergency. It may also provide protection for the military from unconstitutional commands, e.g., instructions to act against political protesters, to engage in civilian law enforcement, or to occupy buildings housing democratic institutions. 47  Art. 9 of the Constitution of Bulgaria (Armed Forces): “The armed forces shall guarantee the sovereignty, security, and independence of the country and shall defend its territorial integrity.” 42 Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel