Spain-JURISDICTION OVER NATIONAL DEFENSE

In Francoist Spain, the head of state occupied the position of commander in chief of the armed forces. He was, in an active sense, at the top of the military hierarchy, linked directly to the three services. The ministers of the army, the air force, and the navy--customarily officers of three-star rank--directed the operations, the training, and the administration of their respective services to the extent of the authority delegated to them by Franco as commander in chief. Under Franco the National Defense Council and the Supreme Staff had planning and coordinating functions without real authority over the three services.

After Adolpho Suarez Gonzalez took office in 1976, replacing Franco's last prime minister, he set into motion a series of measures to convert the command structure into one resembling that of other democratic Western nations and to place the armed forces unequivocally under the authority of the elected civilian government. The chairman of the Supreme Staff, Lieutenant General Manuel Gutierrez Mellado, was entrusted with this task, for which he was appointed deputy prime minister responsible for defense. Gutierrez Mellado acted vigorously to introduce a host of reforms, the first of which was to replace the chairman of the Supreme Staff by transferring his powers to a newly created Joint Chiefs of Staff (Junta de Jefes de Estado Mayor--JUJEM), comprised of the three service chiefs and a chairman. By a royal decree in June 1977, the three service ministries were replaced by a single Ministry of Defense. Gutierrez Mellado became the first minister of defense; when he retired two years later, a civilian assumed the portfolio.

The new ministry was given the task of preparing organizational alternatives for the government to consider in the areas of national defense and the execution of military policy. A further stage in the transition was reached with the promulgation of the new 1978 Constitution, which, in Article 8, states that: 1. The Armed Forces, consisting of the army, the navy, and the air force, have as their mission the guarantee of the sovereignty and independence of Spain, the defense of its territorial integrity, and the constitutional order. 2. An organic law will regulate the bases of the military organization, in conformity with the principles of the present Constitution. Article 97 establishes that "The government directs domestic and external policy, the civil and military administration, and the defense of the state. Exercise of the executive function and jurisdiction will be by regulation in accordance with the Constitution and the laws."

The language of the new Constitution affirms that responsibility for defense and for military policy is to be under the authority of the civilian government. The new definition of the armed forces clearly distinguishes them from the forces of public order, i.e., the Civil Guard and the police, which had been treated as part of the armed forces under the applicable organic law of the previous regime. Allocation to the armed forces of the responsibility to defend the constitutional order was intended to reassert the role of the military in internal security and to underscore the illegality of actions contrary to the democratic system.

In conformity with Article 8.2 of the Constitution, Organic Law 6 was promulgated on July 1, 1980. It allocates authority in matters concerning national defense and the military establishment, declaring that the king is the supreme commander of the armed forces and the presiding officer of the National Defense Council at sessions that he attends, and that the government, headed by the prime minister, is to determine defense policy. It names the National Defense Council, to include both civilian and military officials, as the senior advisory and consultative body of the government, with the task of formulating and proposing military policy. JUJEM would continue to serve as the senior joint military advisory board (see fig. 14).

The division of responsibilities set out in the 1980 law failed to resolve all of the issues involved in the distribution of functions; notably, it failed to assure that the planning of military requirements took full account of available resources. In addition, the powers of the prime minister and the minister of defense to supervise the conduct of military operations were not clearly defined. Some politicians felt that the military still dominated the chain of command.

To deal with these problems, Organic Law 1 of January 5, 1984, introduced certain modifications. It specifically assigns to the prime minister the responsibility for defining the outlines of strategic and military policy, and it authorizes him to order, to coordinate, and to direct the implementation of military policy by the armed forces. It establishes that the minister of defense could exercise various of these functions as delegated to him by the prime minister. It modifies the role of the JUJEM, confining it to that of a military advisory body to both the prime minister and the minister of defense. An important innovation is the creation of the post of Chief of the Defense Staff (Jefe del Estado Mayor de la Defensa--JEMAD). As the highest figure in the military hierarchy, the JEMAD is instructed to act as principal collaborator to the minister of defense in the planning and the execution of the operational aspects of military policy. In wartime, the JEMAD would be commander in chief of the armed forces, directly responsible for conducting military operations.

As explained by the government, the 1984 law formalizes the procedure whereby the prime minister and the minister of defense are given a preponderant role in carrying out defense policy and in integrating the contributions of the individual branches of the armed forces. All three service chiefs of staff must exercise their commands under the authority of the civilian leaders; the law allows for no separate military command whereby the armed forces could operate autonomously.

Data as of December 1988