Problems of legal regulation of military social policy.

A key area in the activity of any state is its social policy. Military social policy, which is an independent component part of social policy, is based on a whole complex of specialized normative legal acts and is meant to direct the social development of the state's military organization, to meet the material and cultural needs of servicemen and their families, and so to ensure the reproduction of their moral, psychological and physiological potential, to maintain the internal stability and combat efficiency of the military organization.

The state and its institutions exert a guiding influence on the processes in the sphere of military social policy through legal regulation, i.e., a normative-organizational impact on social relations for the purpose of their ordering, protection and development in accordance with social needs. An integral element of the mechanism of legal regulation of relations in the military social sphere is law enforcement, which constitutes the content of the governing activities of state agencies and authorized officials resulting in the adoption of individual orders in the award of pensions, payment of compensations and allowances, provision of benefits, etc. Legal rules establish a special mechanism for realizing the subjective social rights of servicemen and their families, which includes lawful acts by natural persons and competent government agencies.

Practice shows the existence of numerous gaps and contradictions in military social legislation. This is due in large measure to the inadequate effectiveness of the lawmaking activities of government bodies. Experts have estimated, for example, that most of the bills put before the State Duma are private bills (narrowly specialized or "spot" bills) and have a low quality. The current organization of legislative activities leads to a state of affairs where Federal legislation in the military social sphere is often incomplete but at the same time redundant, and is marked by instability, numerous contradictions, lack of coordination and duplication of normative material. (1)

The primary, central element of the mechanism for the legal regulation of military social policy is the system of legal norms contained in normative legal acts: laws, presidential decrees, governmental regulations, and departmental normative legal acts. The number of normative legal acts governing this sphere is very large: only legislation on the rights and benefits of servicemen includes over 300 legislative and other normative legal acts, and legislation on military duty and military service includes over 200 sources.

Such an extensive normative framework for military social policy is in itself a good thing. But there is also a reverse side of the coin. The practice of resolving social problems in the Armed Forces has brought out a starkly paradoxical regularity: the greater the number of issued laws, decrees, regulations, orders and other legal acts on social protection, the lower the social protection level of servicemen. Evidently, in rule-making practice there is a certain limit, a kind of critical level. When this level is exceeded, the effect can be opposite to that expected by the legislator. The existence of numerous normative legal acts (differing in legal validity and source of issue, often contradicting each other and containing impracticable rules) makes them much less accessible to servicemen, hampers their use in the solution of social problems, and paves the way for abuses in law enforcement practice.

Russian historical experience since Peter I to our day shows that an accumulation of numerous ill-matching normative acts undermines the foundations of law and order in the country. The well-known Russian lawyer and statesman M.M. Speransky noted that "overcomplexity, fragmentation and uncertainty are as great a hindrance (or probably even greater) as a shortage of legislation, for they are a source of calumny, misinterpretation and biased rulings under the guise of legality, necessitating ceaseless clarifications and authorizations, which in turn breed further complexities." (2)

Accelerated preparation of new laws and other normative legal acts in the sphere of military social policy has a negative effect on their quality. Effective legislation in this field is marked by instability, Federal laws are adopted in new wordings, with frequent amendments and addenda, * there is no standardized terminology in these laws, and the same concepts are formulated in different ways. As the RF President noted in his annual Message to the Federal Assembly back in 2001, "our normative legal framework today is, on the one hand, excessive and, on the other, incomplete. Too many laws have been passed. Many of them duplicate each other, but in a number of cases they do not actually address the tasks that had been set, because they are adopted under pressure from narrow--group or departmental--interests." (3)

So what is the way out of this situation? It is known that the only way out of a blind alley is in the direction of the entrance. That is why it is necessary, in my view, to change the very principle underlying the approach to social rule-making: we need a single codified normative legal act governing the sphere of military social policy in the Russian Federation.

A paradoxical situation has taken shape in Russia. Article 7 of the RF Constitution proclaims the Russian Federation to be a social state whose main task is to achieve the wellbeing of the individual and society, to ensure a dignified life and free development of the individual. But in a state which calls itself a social state there is no social code, but only an air, land, water, forest and many other codes. This obviously detracts from all that is directly connected with people's vital interests.

Many scholars and specialists see the way out of the present situation in the preparation and adoption of a code of laws of the Russian Federation, which should be drawn up so as to remove both the existing contradictions and inconsistencies between the various laws and their internal deficiencies. (4) This document should have a special section dealing with matters of legal regulation of military social policy. The RF President emphasized in the above-mentioned Message to the Federal Assembly: "We have long been in need of a systematization of legislation that would make it possible not only to take account of the new economic realities, but also to preserve traditional sectors dangerously 'eroded' in recent years."

Such approaches to the codification of legislation on social security are fully applicable to the systematization of legislation on the social protection of servicemen, citizens discharged from military service and members of their families. Today the sources of law on social protection of the aforesaid persons are normative legal acts effective in various areas of social life and having unequal validity, form and scope, and different sources of issue. That is why we need a single, constantly updated and generally accessible codified normative act on the rights and benefits of this category of citizens.

An important point to note here is that in Russia the codified form of legislation has always played a special, key role in regulating relations. This tradition is rooted in Russian prerevolutionary and in Soviet law. Codification is the most radical way of developing legislation. It is precisely such codified normative legal acts that provide the basis for the institutional subsystems of legislative acts and subordinate legislation in each branch of law.

Legislators in this country have fairly wide experience in addressing this task. In 1924, a Code of Benefits and Privileges for Servicemen of the Workers' and Peasants' Red Army and Red Navy of the USSR and Their Families was enacted by decision of the All-Union Central Executive Committee (VTsIK) of the USSR. (5) In his report on the draft Code at a regular session of the VTsIK, A.S. Bubnov, a representative of the military department, said: "This code is of great importance both to the men and to the commanders of the Red Army, because it affects the vital interests of the Army as a whole. The need for such a code has now become obvious to all. The benefits granted by the state to Red Army men and command staff are scattered across a whole range of separate decrees, circular letters issued by people's commissariats, etc. We have no guarantee that a Red Army man and his family will be informed about the benefits to which they are entitled under the law ... Given the extreme fragmentation of these decisions, the organs of power have no way of controlling their execution. The Red Army as a body is interested in having all the benefits codified so that they could be truly implemented in the localities." (6)

Alongside a list of concrete benefits made available to servicemen, the 1924 Code also contained articles establishing the mechanism for their realization and the responsibility for their improper execution. Thus, Article 44 said: "The protection of the legal and property status of the families of Red Army men both by legal and by administrative procedure shall be vested in local executive committees. Officials failing to take measures to protect the legitimate interests of Red Army men shall be prosecuted under the respective articles of the Criminal Code of the Union Republic."

In 1930, that Code was subjected to substantial revision and was enacted by decision of the Central Executive Committee and the Council of People's Commissars of the USSR in a new wording and under a new title as the Code of Benefits for Servicemen and Reservists of the Workers' and Peasants' Red Army and Their Families. (7) Today these codes have naturally become obsolete. They have fallen far behind the requirements of current practice and have lost their former significance. But the general methodological approaches used by the legislators in the development of these codes can and must be taken into account today in the codification of the respective legal norms.

So, a codification of legislation on matters of social protection of servicemen can be regarded as one of the most urgent tasks of lawmaking practice in the sphere of military social policy. As I see it, a code is the most acceptable form of systematizing legislation, because such a legal document is the only way to unify and systematize the rules pertaining to several branches of law. A code can ensure uniform understanding and enforcement of legal rules on the social protection of servicemen throughout the country. In my view, such a code could be entitled "Military Social Code of the Russian Federation." With its adoption it would be possible to repeal the numerous fragmentary and often contradictory acts and rules in this area. This code could provide a solid and highly effective legal basis for military social policy in the Russian Federation. It should be predicated on the performance of the state's duty with regard to the individual as recorded in Article 25 of the Universal Declaration of Human Rights and in Article 11 of the International Pact on Economic, Social and Cultural Rights: to ensure an adequate living standard for every person and his family, including sufficient food, clothing and housing, and also a steady improvement in living standards.

The above remarks and proposals, in my view, will help to upgrade legislation in the sphere of military social policy in the Russian Federation.

* For example, the RF Law on Pension Provision for Persons Who Served in the Armed Forces, Internal Affairs Agencies, the State Fire Fighting Service, and Institutions and Agencies of the Criminal Enforcement System, and Their Families has had 13 amendments since 1993; the Federal Law on the Status of Servicemen, which entered into force on 1 January 1998, has had 9 amendments; and the Federal Law on Veterans has had 5 amendments over the past two years, including a new wording of the law.

NOTES:

(1.) See: Ye.M. Savelieva, "Problemy sovershenstvovania zakonodatel' noi deiatel' nosti Rossii na federal' nom urovne," Gosudarstvo i pravo, No. 9, 2001, p. 6.

(2.) Quoted from: Konstitutsia, zakon, podzakonnyi akt, Gosizdat Publishers, Moscow, 1994, p. 68.

(3.) Rossiiskaia gazeta, 4 April 2001.

(4.) See: S. Korabel'nikov, "Svod zakonov stabiliziruiet rossiiskoie zakonodatel'stvo," Rossiiskaia iustitsia, No. 5, 1997, pp. 12-13.

(5.) See: SZ SSSR, No. 21, 1924, Art. 198.

(6.) Krasnaia zvezda, 28 October 1924.

(7.) SZ SSSR, No. 23, 1930, Art. 253.

Justice Colonel V.M. KORIAKIN

Candidate of Juridical Sciences