The new Hungarian Government changed the direction of the civilian national security services in 2010. Although the professional reasons for, and consequences of, the decision could also be a good topic for analysis, this article concentrates on the legislative solutions utilized by the Parliament and the Government. It also attempts to explain some of the undesired consequences that the particular methods cause in the field of national security.
Since the adoption of Act no. CXXV. of 1995 on the National Security Services (hereinafter: Services Act) there are five national security services in Hungary. Two of them are military and the three others are so-called civilian national security services. The two military services (the Military Intelligence Office and the Military Security Office) are directed by the Minister of Defense. According to the original wording of the Act, the three civilian services (the National Security Office, the Information Office and the Special Service for National Security) are directed by "a designated minister". This formula has created enough maneuvering room for the different Governments. Indeed, during those fifteen years the civilian services were either directed by an independent minister without portfolio or by the Minister directing the Prime Minister's Office. Despite the changes in the actual minister, the direction of the three civilian services was always unified.
This regime was changed in 2010, when the Government divided the direction of the civilian national security services. The Government first renamed the National Security Service as Constitutional Protection Bureau (hereinafter: CPB) and put it, and the Special Service for National Security (hereinafter SSNS) under the direction of the Minister of Interior. Meanwhile, the direction of the civilian intelligence agency, the Information Office, became the responsibility of the Minister for Foreign Affairs. The direction of the military services remained in the hands of the Minister of Defense.
In order to do make the change legally possible, the Government eliminated an important principle of Hungarian national security. Section (2) of Article 11 of the Services Act stipulated that the designated minister, who is responsible for the civilian services, cannot be the Minister of Defense, the Minister of Justice or the Minister of Interior. The roots of this stipulation go back to the times of the regime change. Then, the so-called Opposition Round Table was adamant on the separation of the national security tasks from the law enforcement tasks and also from the minister responsible for law enforcement issues. The reason was to break up the "monopoly of power" existing under the direction of the Minister of Interior, and to bring the services under effective and separate Governmental control. This demand was observed in 1990 and the rule was actually built into the Services Act in 1995. The Act also mentioned the Minister of Defense for the same reason, that is, for the prevention of a "monopoly of power". However, the prohibition related to the Minister of Justice was built into the Act because of a different reason. The national security services must turn to the Minister of Justice to receive permission for the utilization of secret information gathering methods requiring external authorization[1]. Therefore, the law was to prevent the authorizing minister from also becoming the minister directing the services. Indeed, such a scenario would violate the well established principle of "checks and balances" and could create an uncontrollable situation.
The Government, in order to bring the two services under the direction of the Minister of Interior, had to change the law. However, it "threw out the baby with the bathwater" since it abolished the whole Section instead of deleting only the part of the prohibition which related to the Minister of Interior. As a consequence, from now on, any Government may decide to concentrate the direction of services and the authorization of the most intrusive secret information gathering methods in one hand. Although it is not expected to happen, the above-mentioned decision has resulted in the loss of an important legal safeguard. Since the Services Act can only be amended by qualified majority, that safeguard may be lost for longer period of time.
The Legislature has created the legal framework for the divided direction in multiple steps. First, Act no. XLII. of 2010 on the Enumeration of the Ministries of the Hungarian Republic assigned the responsibility of direction to the two ministers mentioned. Then, the Government specified the ministerial responsibilities in Government Decree no. 212/2010 in July. Later on, the Parliament adopted a so-called "Salad Act", or in English terminology, a miscellaneous Act in December. Act no. CXLVIII. of 2010 attempted to contain all amendments that the Government felt necessary to implement due to the change in the overall Governmental structure. The new legal
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framework for the direction of the civilian services can be understood through the analysis of the three above-mentioned legal instruments.
Act no. XLII. of 2010, due to its general nature, could only decide on the division of the direction of the services. However, the actual text of the Act creates an ambiguous situation. According to the Act, "when formerly adopted rule of law ... mentions the minister without portfolio directing the civilian national security services, with regard to the duties related to the direction of the civilian intelligence activity, it should be understood as referring to the Ministry for Foreign Affairs and the Minister for Foreign Affairs".[2] The same formula is used in the case of the CPB and SSNS and the Minister of Interior.
First, the reference to the minister without portfolio is not precise, since in different time-periods the directing minister was the Minister directing the Prime Minister's Office. What is more important, the reference to the Ministry for Foreign Affairs (or to the Ministry of Interior in the case of CPB and SSNS) is erroneous, since the ministries do not participate in the direction of the services. The civilian services did not integrate into the Prime Minister's Office either, when they were directed by that minister. Since the relevant elements of the Services Act were not changed together with the change in the direction, the services' administrative and legal status remains the same. The Services Act in Article 2 still stipulates that the services are "central administrative organizations with statewide jurisdiction and independent finances, directed by the Government". The Government directs the services via the designated Ministers. In other words, from the legal point of view the ministries and the national security services are operating independently from each other, on equal footing, under the direction of the same Minister. The services are by no means subordinated to the ministries. Although it may be seen as over-excitement over poorly chosen words, the imprecise formulation can lead to undue consequences.
Another example for imprecision can be found in the Organizational and Operational Regulations of the Ministry of Interior, issued by the Directive of the Minister of Interior no. 7/2010. Here, Annex 4 of the Directive specifies the CPB and SSNS as an "independent agency for the interior"[3]. This formulation is in contrast with the Service Act, since the change of the direction does not change the status of CPB and SSNS as a national security agency.
The second relevant rule of law, namely Government Decree no. 212/2010 on the tasks of the ministers regulates the related responsibilities of the Minister of Interior and the Minister for Foreign Affairs differently. Interestingly, the Decree does not regulate the responsibilities of the Minister of Defense at all.
In the case of the Minister of Interior the Decree in Article 37 mentions that the Minister is "responsible for the direction of the civilian national security services, except for the direction of the intelligence activity". The decree later stipulates that the Minister participates in the development of "laws related to the status and operation of the civilian national security agencies, except for the intelligence activity".
First, there is a degree of "casualness" in the text when the Decree cannot use the same terminology twice for the national security organizations. First it correctly uses the accepted terminology of "services" than it, incorrectly, talks about the "agencies". Then, there is an inherent dichotomy caused by the fact that the Decree talks about the direction of two "services", while making an exception related to an "activity" instead of the third service. Again, the problem does not look to be too severe. However, the above mentioned erroneous formula was also adopted by Act no. CXLVIII. of 2010, and there it creates much greater inconsistency, as it will be explained later.
Another problem with the Decree is again related to the categorization of the services. The minister receives the mandate related to lawmaking for the two national security services as the "minister responsible for law enforcement". This solution may again cause a serious misunderstanding related to the status of the CPB and SSNS. The activity of the national security services may not be termed as law enforcement. This is reinforced by the last twenty years of lawmaking, both in the field of material law and administrative law. The national security services are not law enforcement agencies and they do not carry out traditional law enforcement or public security functions. The separation of the law enforcement agencies and the national security services is of primary importance. Based on the Services Act the status of the services cannot be questioned. The fact that now the Minister of Interior directs them, does not change their status.
The mistake was repeated in Resolution no. 55/2010 of the Prime Minister, which appointed the new Director General of SSNS "based on the proposal of the minister responsible for law enforcement". Here again, the Minister of Interior should have made his proposal not as the minister responsible for law enforcement, but as the minister responsible for the direction of SSNS, since SSNS is not a law enforcement agency.
Similarly, the Information Office does not become a foreign affairs institute just because it is directed by the Minister for Foreign Affairs. However, the
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same mistake was not committed in the case of the Minister for Foreign Affairs.
In the case of the Minister for Foreign Affairs, Article 117 of the Decree stipulates that "the Minister for Foreign Affairs directs the Information Office as set forth in a separate rule of law". The term of "separate rule of law" refers to the Services Act. The Act in Article 11 contains all elements of the ministerial mandate, including the lawmaking powers that were expressly (and therefore, unnecessarily) stipulated by the Decree in the case of the Minister of Interior.
Needless to say, there is a dichotomy in the Decree between the terminologies used in the case of the two ministers. While the formula exempts the direction of the "intelligence activity" from the mandate of the Minister of Interior with the obvious reason to leave it for the Minister for Foreign Affairs, the latter (correctly) becomes responsible for the direction of the intelligence service, that is, the Information Office.
The Decree does not contain any other rules on national security. Therefore, the Act on the Ministries and the Decree only decides on the division of the direction of the services. Indeed, the adopted legislative solution correctly defines responsibility, whenever a formerly adopted rule of law refers to ministerial tasks related to the direction of the services. However, the Services Act and other rules of law mandate the minister to perform certain duties that are not related to the direction of the services per se. Indeed, neither the Act on the Ministries, nor the above mentioned Governmental Decree could incorporate more rules on the intricacies of the direction of the national security activity. Therefore, the lack of detailed regulation cannot be cited as a defect of the two laws.
However, the above-mentioned Act no. CXLVIII. of 2010, which was adopted in order to take care of all pending questions caused by the change of the Governmental structure, did not really clarify the situation with regard to national security. Despite the half year passed since the change in the direction of the services, the amendments set forth by the Act remained of technical nature. The changes were restricted to the amendments that were necessary for the appearance of the two Ministers in the Services Act, instead of "a designated minister" as defined earlier. However, even the implementation of so-called technical changes was not well-thought-out.
One example for poor lawmaking is the amendment of Section (1) of Article 10 of the Services Act, which is the main paragraph defining the structure of the ministerial direction. Due to the amendment, starting from January 1, 2011 the text of the Article reads as follows: "10. § (1) The Government directs the Information Office via the minister responsible for the direction of the civilian intelligence activity, the Constitutional Protection Bureau and the Special Service for National Security via the minister responsible for the direction of the civilian national security services, the military national security services via the minister responsible for defense (hereinafter altogether: Minister)".
Although at first look the amendment seems to be logical, the terminology is erroneous, or more precisely it is in contradiction with the terminology set forth in Section (2) of Article 2 of the Services Act. The latter Article defines all three services, that is, the Information Office the CPB and SSNS as the three civilian national security services. However, in the new text of Article 10, the Minister of Interior is defined as the "minister responsible for the direction of the civilian national security services". One cannot fail to notice that the new text of the Act is copied from Government Decree no. 212/2010 as described above.
By deduction, from now on there are two definitions for the group of the civilian national security services. The direct definition in Article 2 of the Act relates to three services, while the indirect one, which terms the Minister of Interior as the "minister responsible for the direction of the civilian national security services" can refer only to the CPB and SSNS.
This type of ambiguity may cause tension in the future. The indirect reference to CPB and SSNS as the (only) civilian national security services in Article 10 was probably created by mistake. If the Legislature had really intended to change the grouping of the services as defined in Article 2 of the Services Act, it could have done it already in Act no. XLII. of 2010 when it amended the Article in order to rename the National Security Office to Constitutional Protection Bureau.
However, the Legislature does not even recognize the dichotomy, since it uses the same technique in other cases too. For example, in Section (2) of Article 41 of the Services Act the term civilian national security services continue to cover the Information Office too. But in Sections (4), (6) and (7) of Article 45 the term of "the minister responsible for the direction of the national security services" refers to the minister directing CPB and SSNS only.
Another area where "impulsive" lawmaking led to undesired consequences is the area of Government level national security intelligence activity. Before the 2010 changes, the direction of analysis and dissemination of information related to state level national security was concentrated in one hand. The Services Act stipulated the following: "11. § (6) The analysis and evaluation of information related to the State's national security as received from the relevant state agencies, and also the activities facilitating the decision-making of the
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Government in that regard, is directed by the minister directing the civilian national security agencies".
In essence the minister was solely responsible for the coordination of an analytical activity involving all national security services and other relevant national agencies in order to provide the Government with a unified intelligence product on the important issues related to national security. In that regard not only the information provided by the Information Office and the National Security Office was combined, but, to a lesser extent, the products of the military national security services were also utilized in the coordinated analysis.
This system of coordinated Government level reporting on national security issues was completely abolished by the slavish utilization of the formula invented by Act no. CXLVIII. of 2010. The current text of the Act reads as follows: "11. § (6) The analysis and evaluation of information related to the State's national security as received from the relevant state agencies, and also the activities facilitating the decision-making of the Government in that regard, is directed by the minister responsible for the direction of the civilian national security services with regard to the Constitutional Protection Bureau and the Special Service for National Security; and by the minister responsible for the direction of the civilian intelligence activity with regard to the Information Office".
Instead of the coordinated Government level reporting, the current text mandates the two ministers to do the reporting independently from each other. What is less apparent, the new wording completely leaves the information collected by the military security services out of the loop. This is the side effect of narrowing the two ministers' mandate to reporting on issues related to the tasks of organizations directed by them. Hopefully, the abolishment of the uniform reporting mechanism was not intentional. It not only abolishes another principle clearly laid down at the time of the adoption of the Services Act, but also puts the Government into an untenable situation.
The automatic utilization of the above-mentioned formula calls into question another principle of the Act. According to Section (2) of Article 8 of the Services Act "The Special Service for National Security may not pursue Government level reporting activity". The principle works as an institutionalized legal safeguard. It ensures that SSNS, which carries out secret information gathering for all national security services and law enforcement agencies, does not use the same information for parallel reporting activity. SSNS has to forward all data to its tasking organizations and delete all data from its database. In turn, the tasking organizations, that is, the national security services and law enforcement agencies, are solely responsible for the utilization of the data received from SSNS.
In the view of the above-mentioned rules it is completely incomprehensible, how could the Minister of Interior direct the analysis and evaluation of information with regard to the Special Service for National Security.
One may ask why the Act juggles with formulas like "minister responsible for the direction of intelligence activity" or "minister responsible for the national security services" instead of naming the two ministers by their name, as Minister for Foreign Affairs, or the Minister of Interior. The reason is that the Legislature wants to retain a formula whereby the actual Government in power may be free to decide on the designation of the directing Minister as it wishes to. If the two ministers were to be expressly mentioned by name in the Services Act, which can be amended by qualified majority only, it would unduly limit the maneuvering room of the Government. However, the "double minister" formulas currently used by the Act make the future reunification of the direction of the civilian national security services extremely hard. In that regard, the new formulas indeed limit the possibilities of a future Government that might not have qualified majority.
The Acts and the Government Decree mentioned above do not contain further rules on the Government level direction of the national security activity. The lack of such supplementary rules on coordination makes the direction of the previously unified civilian national security activity much harder. Even the formerly unified body of law will become divided over time, since both ministers have the right to regulate the life and activity of their services independently. Furthermore, there are many pieces of law, where certain mandate or task was given to the (then sole) designated minister directing the civilian national security services. In all of those cases it is still unclear who is the successor minister.
The legislative solution and the formulas chosen by the Parliament and the Government in dividing the direction of the civilian national security services have created undue uncertainty, and therefore, require further clarification. Until that happens, the Governmental direction of national security is, in essence, substituted by fragmented direction of military security issues, civilian intelligence issues and civilian national security issues by the respective ministers.
The new Parliament has adopted altogether 150 Acts, including 43 new Acts and 107 Acts amending many more former Acts in less then eight months. The amount is impressive, and during such a mara-
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thon certain mistakes necessarily happen. Nonetheless, as it is described above, there seem to be too many irregularities in field the national security. Many of the questions go to the heart of the national security activity and should be rectified in a timely manner. ■
NOTES
[1] Those are the most intrusive methods, including wiretapping, eavesdropping and postal services monitoring.
[2] All legal texts appearing in italics are unofficial translations provided by the author.
[3] Raw translation for the term "belügyi szerv". In the relevant Hungarian scientific studies the world "belügyi szerv" is often interchangeable with "rendvédelmi szerv", which can be more precisely translated as "law enforcement agency". While the Police is indeed a law enforcement agency, the same cannot be said for the national security services.
Lábjegyzetek:
[1] The Author is PhD-student.
Visszaugrás
