Remarks
Table 15.2 neither provides an overall picture of co-participation of democracies or authoritarian regimes in the domain of war powers nor does it intend to categorize all possible forms of participation in the political decision-making processes of parliamentarian, mixed presidential or presidential regimes.
Also, the quantitative distribution as to the numbers of countries adhering to systems of ex-ante control or ex-post control of the deployment of troops does not reflect the constitutional and political reality. It may still be assumed that a significant minority of countries belong to the first type of ex-ante control as stated in the “Report of the Geneva Center for the Democratic Control of the Armed Forces” (2010) quoted above. But even in the report a growing tendency (in the period until 2004) becomes apparent.[1046] One other major aspect to be taken into account without any kind of ranking or evaluation is the entire normative setting between constitutional norms, defence laws and constitutional practice. It is a striking reality that Commonwealth countries mostly follow the example of the UK and prefer to abide by the principle of the “Royal” or “executive privilege” (UK, Australia, Canada, New Zealand and India);[1047] however this does not preclude a more or less effective ex post-control of Parliament for the deployment of troops abroad (like in the UK by statute or conventional practice). Thus, for parliamentary democracies of British “descent” the evaluation must be more nuanced than for more recently drafted or developed constitutional models, for example in Israel (Basic Law on Government) or South Africa's constitution of 1994. The latter’s modest ex post control is the more striking as the overall textual definition and function of the armed forces and the indirect control by Parliament are impressive.A second major element is the significant age of some constitutions and their rigidity for potential amendments (especially USA). Older constitutions, especially in presidential or sometimes semi-presidential systems, still use the term of “to declare war” which evidently refers to a formal declaration of war vis-a vis another state in the sense of international law, but refrain from integrating new modalities of subversive or terrorist attacks, joint peacekeeping missions under UN mandates or of regional defence organisations. The “declaration of war” by the President as Supreme Commander in Chief does not automatically encompass the authority to send armed forces abroad in situations below this stage or new military challenges. The ongoing dispute on the distribution of “war powers” between the President and the Congress in the US is a significant example.[1048]
This may partly be attenuated by extending the state of war to situations of “martial law” or special cases of external emergency (e.g. Russia, Georgia, Poland (Sejm), Portugal, South Korea, Pakistan, Philippines, Ecuador and Venezuela), how different the constitutional practice may appear.
If the “Constituant” or the amending power still prefer to practice an ex-post control of military involvement abroad this should expressly be regulated in the constitutional text for the cases of foreign armed attacks and international peacekeeping operations with informed consent of Parliament within a very short delay (e.g. 48 h). Parliaments should always be capable to revoke the ex-ante power of Government in the first meeting possible after governmental action (at least in semi- presidential systems). But even in strong and stable presidential systems the democratic control of the armed forces should not be limited to the traditional instruments of control (budget cuts, right of questions and interpellation as well as defence and enquiry committees) but be complemented by the legitimation of the whole Parliament or—if needed—by “Joint” or “Main”- Committees before the whole Parliament may convene (e.g.
Pakistan). Any subconstitutional delegation should be unambiguous and clear as to the aim, function and time limits of parliamentary participation.If the constituent assembly however strives for an ex-ante control which guarantees a stronger democratic control—as an ex post—control may often amount to a de facto confirmation of the present state of military deployment abroad—it must be clear that even then the ex-ante control must be well constructed as to the aims, tasks and delays of parliamentary approval (e.g. three months with potential renewed extension), subdelegation to the legislative must remain substantive.
Even an a priori approval, however, does not resolve the thorny problem of the emergency powers of the President and/or Parliament in cases of armed attacks or other cases of external emergencies. It is undisputable that in presidential and semi- presidential systems (however one may define them more precisely)[1049] the decree power of the Chief of State plays a decisive role in war and emergency situations.[1050] If one does not identify the President mainly with the emergency power in times of crisis as supreme guardian (as in Weimar, e.g. Carl Schmitt) one must recognize that the Parliament in a well-balanced system of separation of powers must play an important part to control executive decisions even a posteriori.
In case of an immediate attack (armed, subversive, terrorist or cyber) an institution like the President as Commander in Chief or the Head of Government must be constitutionally legitimated to take the necessary decisions of defence and deployment or armed forces with immediate or subsequent information and following consent of the parliamentary representation or its designated entities (e.g. Austria, Denmark or Germany). This may vary from the type of presidential, semi- presidential or parliamentary system but an ex post control in these cases should be provided for in all these cases.
The same applies even more for parliamentary democracies with an ex-ante control where an effective control should be provided for in the constitutional text itself or at least by a substantial delegation to the legislator. As well drafted examples may be considered Austria, Croatia, Czech Republic, Denmark, Hungary, Lithuania, Ireland, Slovakia, Spain, Bolivia, Brazil and Egypt.