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PROPOSED LAW NO. 110 /X

Exhibition of Motives

1. The Superior Council of National Defence (CSDN) is one of the key elements

of the system of State bodies directly responsible for national defence and the

Armed forces. Hence find your last plea in the Constitution itself, in the

article 274, introduced in the first constitutional revision of 1982, anteceding to

structuring of the Council through Law No. 29/82 (National Defense and Forces Act

Armed).

The CSDN has been configured since the source as a variable geometry organ,

advisory for some effects and administrative for others, being its composition

different in the two situations. As an advisory body works in plenary, but

as an administrative body no longer integrates the representatives of the Assembly from the

Republica, the Presidents of the Regional Governments and the Representatives of the Republic for

the Azores and Madeira.

Over the 24 years of existence of the CSDN, in this its current historical format, two

correlated findings were getting progressively support: the first, the

ever-increasing importance, in the organic system of national defence, of its function

specific advisory, and the second, in parallel, to that some of their

administrative responsibilities represented excessive overload for the

due to compliance with this advisory role. Adding that the allocation of some

of these administrative tasks to the Council, such as promotions and certain nominations, already

it did not appear necessary nor did it make already even sense, and may these transitate

satisfactorily for other organs of the State. These two findings were

reinforcing as the political-military framework and the concerns that generated it in

1982 were going to be dated, and it imposed concentration on the response to new challenges and

untold realities such as the end of the Cold War, the transformation in the subjects

military and strategic, the recruiting of terrorism or the international missions of

support for peace, or, here only on the internal plan, the end of compulsory military service.

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But the legal regime of the Council is not only dating to the realities, it is also

misfit in the face of constitutional and legislative developments itself, as will be addressed

further ahead.

The National Defense Act-which has already been amended for six times, without which at any

of these changes if it has modified the operation of the Council-it is going to be one of

main objects of the reform of National Defence and Armed Forces legislation

that the Government perspective for the brief, in the frame of the revision of the conceptual building,

organic and legislative of the National Defence and the Armed Forces currently under way.

It therefore deserves to explain the fact that the Government is to come at this time to propose this

amendment, with respect to the Council, to a law that will know more general review in

brief. There are two explanations for this circumstance.

The first stems from the urgency of the changes, felt in the face of the circumstances referred to.

The second is that, by strengthening the advisory function of the CSDN, it will be strengthening

automatically your ability to participate in the defence reform process

national in progress. What is positive for the Council, is also positive for the

reform, as a whole.

The review of the composition, skills and operation of the Council that now

presents itself is a one-off reform, as it responds only to these

immediate concerns, not excluding the possibility of additional changes, in

parallel or in interaction with the more general reform mentioned above. It affects several areas,

but the conductive line is always the enhancement of the advisory vocation of the organ, which is, no

can we fail to focus, transversal to the whole political system, with his presidency to

compete for the President of the Republic, and with representatives of the Assembly of Republica,

of the Autonomous and still the Government, through the Prime Minister and the

nuclear ministers in these areas. In this way, the CSDN has the ideal conditions to be

a forum for debate and qualified advice, and even eventually

concertation, either in the headquarters of military defence issues or in matters of support

military to foreign policy, whether even on cross-sectoral issues of National Defence

in its broadest sense.

2. Within this line of guidance, the advisory valorisation of the Council that is proposed

results from three orders of amendments: the extension of the advisory skills; the reinforcement

of the advisory composition and the reduction of administrative tasks.

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First, the extension of advisory skills. This includes, since soon, the

transition from the appreciation of the National Strategic Defense Concept of function

administrative for advisory. Which implies that this important instrument of defence

national pass can be not only analyzed in law, as voted by all the

members of the CSDN, including therefore the six members who only integrate it into their

consultative form.

It is also proposed, at this point, to raise the level of advisory competence expressed to

assessment of the involvement of Portuguese military contingents abroad, in

missions of crisis management, humanitarian or establishment or consolidation of the

peace, subordinated to the international commitments of the state. These missions have today

a great significance in terms of the projection of the State's foreign policy, have been

regular object of discussion and opinion in the CSDN, and, in legislative terms, are already targeted

of monitoring by the Assembly of the Republic, whether as a function of the Constitution

(fourth review in 1997), whether in the function of the National Defense Act itself (fifth

change in 1999). This is justified as soon as this matter is high.

express advisory of the Council, in accordance with its nature of organ

specific consultation for national defence affairs pursuant to paragraph 2 of the article

274. of the Constitution.

Second, the reinforcement of the advisory composition. At this point it is proposed to

integration between the members of the Council, and by inertia, of the President of the Commission

of National Defence of the Assembly of the Republic, and in accordance with the will in that

felt manifested in a meeting of the Council itself.

Finally, and third, the reduction of the cast of administrative skills.

As mentioned above, they have been constituting, in general terms, and as mentioned,

an unnecessary overweight to the functioning of the CSDN, and they are generally found to be

outdated by the easy evolution and even at times by the line of evolution itself

legislative. Two of these cases, which are now intended to review, are that of the promotions of

generals officiating and that of certain appointments for high military positions, whose

confirmation competence withdraws from the Council, with solutions that do not affect the

substance or the solemnity that must accompany these acts.

In short, this proposal translates the will to expedite in the shortest term the

operation of the Council, so that it can better fulfil its role while

forum increasingly attentive to the evolution of reality and actuality, and as a specific organ

of consultation in the areas of National Defence and the Armed Forces. Hence, understood the

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Government that review of the status of the Council should be the subject of a proposal

autonomous, anticipating the more general review of the National Defense and Forces Act

Armed. Thus, the present proposed law translates into a seventh amendment to the Law n.

29/82 (National Defence Act) but an amendment strictly contained in the standards that

governing the National Defence Council, and as such should be understood by

legislators and interpreters.

It was obtained assent from the Higher National Defence Council.

Thus:

Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the

Assembly Republic the following proposed law :

Article 1.

Subject

This Law amends Law No. 29/82 of December 11 (National Defence Act and the

Armed forces) with regard to the composition, skills and operation of the

Top National Defense Council.

Article 2.

Amendment to Law No. 29/82 of December 11

Articles 25, 28, 29, 44, 46, and 47 and 47 of Law No. 29/82 of December 11

(National Defence and Armed Forces Act) with the amendments introduced by the

Laws No 41/83, of December 21, 111/91, August 29, 113/91, August 29

and 18/95, of July 13 and by Organic Laws n. 3/99, of September 18 and 4/2001, of

August 30, shall be replaced by the following:

" Article 25.

[...]

1-A definition of the systems of forces necessary to comply with the

missions of the Armed Forces is approved by the Higher Defense Council

National, on a proposal from the Minister of National Defence, drawn up on the basis of

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in draft of the Council of Chiefs of Staff.

2-[ ... ].

Article 28.

[ ... ]

1-[...].

2-The promotions to officer general, as well as the promotions of officers

generals, from any branch of the Armed Forces carry out upon

deliberation in that sense of the Council of Chiefs of Staff,

deliberation this which is preceded by proposal of the respective Head of

General Staff, heard the Superior Council of the branch.

3-The promotions referred to in the preceding paragraph shall be subject to approval

by the Minister of National Defence and the confirmation by the President of the

Republic, without which they do not produce any effects.

4-[ ... ].

5-[ ... ].

Article 29.

[ ... ]

1-[ ... ].

2-[ ... ].

3-Compete to the Minister of National Defence to appoint and exonerate, under

proposal of the respective Chief of Staff, the holders of the posts

following:

a) Deputy Chiefs of Staff of the branches;

b) Naval Commander;

c) Operational Commander of the Army;

d) Operational Commander of the Air Force;

e) [ Revoked ];

f) [ Revoked ];

g) [ Revoked ];

h) [ Revoked ].

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4-The nominations and exonerations referred to in the preceding paragraph shall be

confirmed by the President of the Republic, without what they do not produce

any effects.

5-Compete to the Minister of National Defence, on a proposal from the Chief of the

General Staff General of the Armed Forces or the Chief of Staff

respective, as the cases, appoint and exonerate the holders of the posts

following:

a) Commanders of the dependent operating commands directly

of the Chief of the General Staff of the Armed Forces;

b) Commanders of the Military Academy, the Naval School and the Academy

of the Air Force;

6-The nominations by the President of the Republic for the posts referred to in

point ( e) of Article 38 (4), as well as nominations for the posts

referred to in points a) and b) of paragraph 2, and in paragraphs 3 and 5, may only focus on

admirals, vice-admirals, generals or lieutenant-generals, when another

post not resulting from the law, in the situation of asset.

7- [ previous n. 6 ].

Article 36.

[...]

1-[...].

2-The Ministry of National Defence provides technical and administrative support

necessary for the exercise of the Prime Minister's own duties in

matter of National Defense and Armed Forces.

3-[...].

Article 44.

[...]

1-[...].

2-[...]:

a) [...];

b) [...];

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c) [...];

d) [...];

e) [...];

f) [...];

g) [...];

h) [...];

i) [...];

j) Propose to the National Defense Council National Defence confirmation of the

Military Strategic Concept and the approval, under project of the

Council of Chiefs of Chiefs of Staff, of the Forces ' missions

Armed and the systems of forces necessary for their compliance;

l) [...];

m) [...];

n) [...];

o) [...];

p) Approve the promotions to the general officer, as well as the promotions of

general officers, from any of the branches of the armed forces, after

Deliberation of the Council of Chiefs of Staff.

3-[...].

Article 46.

[...]

1-[...].

2-[...].

3-[...]:

a) [...];

b) [...];

c) Ministers responsible for the sectors of national defence, of the

foreign affairs, internal administration, finance, the

industry and energy and transport and communications;

d) Chief of the General Staff of the Armed Forces;

e) Representatives of the Republic for the Autonomous Regions of the Azores

and of Madeira;

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f) Chairpersons of the Regional Governments of the Azores and Madeira;

g) Chairman of the National Defense Commission of the Assembly of the

Republic;

h) Chiefs of Staff of the branches;

i) Two deputies to the Assembly of the Republic, by this elected us

terms of this Law.

4-A composition of the National Defense Council, while

administrative body, covers the members referred to in points a) , b) , c) and

d) and h) of the previous number.

5-[...].

6-The Council meets ordinarily every three months and

extraordinarily whenever for this to be convened by the President of the

Republic, on your initiative or at the request of the Prime Minister.

7-The Superior National Defense Council is secretariat by an officer

general or by a qualified public servant with a degree

appropriate to the exercise of the function, which shall be appointed and exonerated by the

President of the Republic, on a proposal from the Government.

8-The Secretary of the Council shall be equated for all purposes to the Director-

general.

9-Technical and administrative support to the Higher Defence Council

National is ensured by the Secretariat-General of the Presidency of the Republic,

on whose budget the monies necessary for its implementation are entered.

Article 47.

[...]

1-[...]:

a) [...];

b) [...];

c) Strategic concept of national defence;

d) Legislation on the organization of national defence and definition of the

duties of it arising out of and general bases of the organization,

operation, reequipment and discipline of the Armed Forces and the

conditions of employment of the Armed Forces in the state of sitio and in the

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state of emergency;

e) [ previous point (d) ];

f) Involvement of military contingents abroad in the framework

of the international commitments of the Portuguese State, on missions

not arising from the state of war;

g) [ previous point (e) ];

h) Approve the proposed appointments and exoneration for the posts

referred to in Article 29 (2) to be submitted to the President of

Republic;

i) [ previous point (g) ];

j) [ previous point (h) ];

l) [ previous point (i) ].

2-[...]:

a) [ Revoked ];

b) Confirm the military strategic concept and approve the missions of the

Armed forces and the systems of forces necessary to their

compliance, after proposal by the Minister of National Defence;

c) [...];

d) [...];

e) [ Revoked ];

f) [...];

g) [ Revoked ];

h) [...].

3-The opinions of the Superior Council of National Defence are not

published, save when the Council itself exceptionally the

determine; the acts practiced by the Council pursuant to paragraph 2 of this

article they are only published in the case of the point f) and are of the form of

resolution.

Seen and approved in Council of Ministers of December 14, 2006

The Prime Minister

The Minister of the Presidency

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The Minister of Parliamentary Affairs