Legislative Process

This Article explores a novel cross-national phenomenon: the emergence of a new judicial review model that merges procedural judicial review with substantive judicial review. While this model is not yet fully defined, it has already spurred much controversy. The Article explicates this emerging model, which it terms "semiprocedural review," and provides a theoretical exploration of both its justifications and its objectionable aspects. It concludes by evaluating semiprocedural review's overall justifiability and suggesting guiding principles for a more legitimate model of semiprocedural review. The Article pursues these goals through the unique perspective of juxtaposing semiprocedural review with "pure procedural judicial review" and "pure substantive judicial review."

Legal texts are often given interpretations that deviate from their literal meanings. While legal concerns often motivate these interpretations, others can be traced to linguistic phenomena. This paper argues that systematicities of language usage, captured by certain theories of conversational implicature, can sometimes explain why the meanings given to legal texts by judges differ from the literal meanings of the texts. Paul Grice's account of conversational implicature is controversial, and scholars have offered a variety of ways to conceptualize implicatures and Grice's maxims of conversation. Approaches that emphasize the systematic nature of implicatures can provide explanatory accounts of the gap between literal meaning and the meaning communicated in the text. For example, a theory of scalar implicature, a type of generalized conversational implicature, can account for the application of the interpretive principle known as ejusdem generis, which narrows the scope of 'catch-all' clauses located at the end of lists of items. Despite the availability of such theories, some scholars have argued that conversational implicatures are not applicable to legislation. The arguments, based primarily on the uniqueness of the legislative context and its non-cooperative nature, though, do not establish the inapplicability of conversational implicatures to legislation.

This work studies the performance of the agenda holders, a concept that covers the parliamentarians that in certain themes, centralize political articulations among other lawmakers, the Executive and representatives from business and civil society organizations. Through studies of legislative processes, supplemented with details on the political career of parliamentarians, the purpose is to indicate ways in order to understand who are the agenda holders, how they act, and the connection with their political careers. The results indicate the existence of a significant relationship between careers and the role of parliamentarians as articulators of governmental and nongovernmental organizations.

In recent years, there has been growing and widespread discontent with the state of the legislative process in many legislatures. At the same time, there is an emerging trend of courts exercising judicial review of the legislative process. Against this backdrop, this article explores the question of what can be the role of courts in efforts to improve the legislative process. The article offers a fresh perspective on the problems in the legislative process and their causes. It then develops a novel argument – that does not rest upon a cynical view of legislatures, nor on a rosy picture of courts – to support the view that judicial review of the legislative process can contribute to improving the legislative process.

This essay offers a substantive introduction to the special issue on mending the legislative process. Discontent with the legislative process seems to be pervasive. But how could we move from the widely-shared lament that the lawmaking process is broken to thinking on ways to mend it? This essay sketches the requisite preliminaries for answering this question. It outlines ways to approach the problems with the contemporary legislative process and to think about solutions in a systematic way, and introduces the contributions in this issue.

W artykule przedstawiono analizę przepisów Regulaminu Sejmu Rzeczypospolitej Polskiej dotyczących funkcjonowania podkomisji na tle praktyki parlamentarnej siedmiu kadencji Sejmu (1991-2015). Sklasyfikowano podkomisje pod względem tematyki ich pracy i zadań. Przedstawiono również najważniejsze problemy prawne dotyczące działalności podkomisji wynikające z praktyki parlamentarnej, takie jak powoływanie, ustalania składu osobowego, wyboru przewodniczącego, przebieg posiedzenia i likwidacje podkomisji.

The article provides an analysis of the Standing Orders of the Sejm of the Republic of Poland concerning the functioning of subcommittees against the parliamentary practice of the seven terms of the Sejm (1991–2015). Herein, subcommittees are classifi ed based on the subject matter of their activity and tasks. The most important legal problems concerning subcommittees' activities, resulting from parliamentary practice, are also presented, such as establishing subcommittees, electing chairpersons, the course of subcommittee sittings and dissolving subcommittees.

תקציר בעברית: מאמר זה מנתח את פסק דינו של בית המשפט העליון בבג"ץ 10042/16 קוונטינסקי נ' כנסת ישראל, אשר פסל את הסדר "מס דירה שלשית" בחוק ההסדרים. זהו אחד מפסקי הדין החשובים ביותר בתחום הביקורת השיפוטית על הליך החקיקה והראשון שפסל חוק בשל פגמים בהליך החקיקה. המאמר טוען כי פסק הדין מתאפיין בפער ניכר בין עמדות שופטי הרוב לדעת המיעוט באפיון המהלך שעושה פסק הדין והיחס בינו לבין הלכת מגדלי העופות – ההלכה המכוננת בתחום. בעוד ששופטי הרוב מציגים את פסק דינם כיישום מתבקש, כמעט בלתי נמנע, של הלכת מגדלי העופות (או למצער, כליטוש מתבקש שלה), שופט המיעוט מציג את פסק דינם כלא פחות מ"סטייה רבתי מההלכה הפסוקה". המאמר מתמקד בחקירת פער זה ועוסק בשלוש שאלות מרכזיות: (א) האם יישום אמות המידה שנקבעו בהלכת מגדלי העופות על נסיבות המקרה הייתה צריכה להוביל לביטול החוק? (ב) מהו היקף הפיתוח וההרחבה שעורך פסק הדין לעומת ההלכה הקיימת? (ג) האם הרחבה זו היא התפתחות ראויה?

English Abstract: This article analyzes the judgment of the Supreme Court of Israel in HCJ 10042/16 Quantinsky v. the Israeli Knesset, which invalidated the “Third Apartment Tax” provisions in the Arrangements Law. This is one of the most important judgments in the field of judicial review of the legislative process and the first case that invalidated a law due to defects in its legislative process. The article argues that the judgment is characterized by a considerable gap between the positions of the Justices in the majority to the dissent opinion in characterizing the judgment and its relationship to the Poultry Growers case – the landmark precedent in the field. While the majority Justices view their decision as a necessary, almost inevitable, application of the Poultry Growers case (or, at least, as a necessary refinement), the dissenting Justice presents their decision as no less than a major deviation from the case law. The article focuses on exploring this gap and discusses three main questions: (a) Does correct implementation of the standards established in the Poultry Growers case on the circumstances of the current case lead to invalidation of the law? (B) To what extent does the current decision develops and expands the existing case-law? (C) Is this expansion appropriate?

In this article, the authors, collaboratively and based on their experience of related research (normative-legal activity of local self-government (Petryshyna, 2011), general theoretical problems of law-making and norm-making (Didych, 2018), problems of reception of foreign experience of reforming local self-government (Petryshyn, problems of decentralization reform (Hyliaka, 2015)) investigate the features and the shortcomings of the system of normative-legal acts of local self-government of Ukraine. These include: the problems of the legal status and the nature of the modern system of normative legal acts of local self-government, its normative-legal consolidation; the issues of practical law-making by bodies and officials of local self-government through the prism of the heritage of the Soviet system of local self-government; the shortcomings in the reforms undertaken since independence; the ongoing decentralization and associated reforms as well as existing concepts and plans aimed at the integration of Ukraine into European legal space and the European Union in particular. The result of the study was the identification of a number of substantiated features of the system and general recommendations aimed at the improvement of the overall state of local self-government and its law-making activity in the context of the current and future related reforms in Ukraine.

O trabalho aborda um problema fático: os discursos travados no âmbito do Poder Legislativo – e que se convertem na política criminal brasileira – não se baseiam em informações, em dados, em pesquisas realizadas pelo Poder Executivo, por universidades ou por associações civis interessadas em intervir no processo legislativo. As opiniões dos parlamentares são fortemente influenciadas pelas mídias, pela opinião pública, e as estratégias de tramitação ou de interrupção de tramitação de determinados projetos de lei passa exatamente pela sensibilização dos parlamentares em relação ao apelo midiático. O problema de pesquisa, então, se delineia: partindo do paradigma da criminologia crítica, como conter esse quadro de (re)produção de discursos punitivos, que resultam no aumento da população carcerária e que impedem a discussão de medidas descarcerizantes ?

From the point of view of the participating or monitoring bodies, the legislative process may be found as unclear and unsatisfying in terms of citizens’ access. The state authorities should be interested in engaging the society in it more widely, though. The more discussion and social consultation within the process of law-making, the greater chance
for avoiding errors and mistakes as well as for a social approval and a high level of law preservation. The paper is an attempt to present the very subjective list of the elements of law in need for speedy changes. It also points out the de lege ferenda solutions that might significantly improve its quality.

The law-making process in the reception of many entities participating in it or monitoring its course is not very transparent and unsatisfactory as far as the level of civic participation is concerned. The authorities should care about civilizing the law-making process. The more discussions and consultations are in the process of creating assumptions for legal acts, the greater the chance of avoiding mistakes and the chance that citizens will approve the existing legal system and abide by the law. In this publication, the author has attempted to make a subjective indication of these elements of the law-making process that require rapid change. At the same time, he pointed to solutions that could significantly contribute to improving its quality.

Abstract: The article discusses the legislative output of the Sejm of 1615. There is a common opinion in reference to the seventeenth century that the constitution was a concordant conclusion of the three parliamentary estates combined with a promulgation. However, the conducted analysis reveals that despite the lack of agreement to the conclusion of the 1615 Sejm, it adopted normative acts: both at the beginning and at the end of the parliamentary proceedings. In addition, a new type of law sources has been characterised, i.e. resolutions of the Chamber of Deputies, which at that time were equal in rank to Sejm constitutions.

The Fidesz-KDNP coalition parties were voted into office in 2010 with a two-thirds majority in the unicameral National Assembly, which gave them significant leeway to implement their political agenda smoothly. Nevertheless, the governing coalition, driven by revolutionary zeal, was determined to put in place major legislative reforms as quickly as possible in the face of every opposition. This attitude led to the instrumentalization of parliamentary legislation which manifested itself in an increasing number of serious irregularities of the legislative process. This article argues that the procedural flaws of parliamentary law-making constitute an infringement of the rule of law principle as it is interpreted in the Council of Europe and the European Union. In order to show that the situation is much more serious in Hungary than the criticisms voiced by the European rule of law mechanisms suggest, we analyze all the constitutional review cases in which legislative acts were challenged on procedural grounds after 2010. Finally, we discuss the outcome of the cases adjudicated by the Hungarian Constitutional Court to see which irregularities were found unconstitutional.

Legislative initiative is an issue of fundamental nature, as a institution starting the entire legislative process that results with a new law coming into force. Moreover, it is also a fundamental right - for individuals and bodies – to bring the draft legislation to the parliament and thereby to effectively initiate the legislative procedure provided by law. Among other subjects authorised to bringing the draft legislation there is a group of 100 000 people having reached maturity and enjoying right to election to the parliament. The aim of the article is to present basic regulations on citizens’ legislative initiative from the perspective of Polish parliament and its legislation as well as to analyse to which extend Polish citizens may have decide of the shape of law.

In the past few months, the Fidesz government has been working on the reform of the administrative judiciary at full speed with the assistance of the European monitoring bodies. The Constitutional Court recently had the opportunity to slow down the process of undermining the independence of the last stronghold of the rule of law in Hungary, by invalidating the reform legislative act on the basis of procedural irregularities. Even though the law had been adopted as a result of a chaotic parliamentary vote, the justices did not find a violation of the Fundamental Law. The outcome is not surprising, as the Court cannot be accused of exercising a particularly strong control over the parliamentary legislative process in general. What is puzzling, however, is the massive amount of hypocrisy manifested in the reasoning: the very same Court, which has, for the most part, failed to stop the abusive practices of the governing majority in respect of parliamentary law-making, gives the opposition MPs a lecture on the basics of parliamentary work and decorum.
https://verfassungsblog.de/administrative-judicial-reform-in-hungary-who-gives-a-fig-about-parliamentary-process/

Analisa-se o uso da medida provisória antes da Emenda Constitucional 32/2001 à luz do princípio democrático. Argumenta-se que em tese (in abstracto) não há incompatibilidade entre o instrumento legislativo medida provisória e o princípio democrático. Contudo, in concreto, o excesso de medidas provisórias editadas e reeditadas pelo Poder Executivo, bem como a omissão do Congresso Nacional e a interpretação política do caput e do parágrafo único do art. 62 (na redação anterior à EC 32/2001) não estavam em conformidade com o princípio democrático.

This paper analyzes in a critical way the principles and rules used by the recent spanish law of administrative procedure to reinforce better regulation. It concludes with some reflections about the limits and problems of meta-regulation, that is to say regulation dealing with regulation.

A história constitucional brasileira é investigada de modo singular neste livro de Leonardo Augusto de Andrade Barbosa, derivado de sua tese de doutorado defendida na Faculdade de
Direito da Universidade de Brasília. O autor parte do período pós-1964, quando diversos processos de reforma ou ruptura alteraram as regras relativas a mudanças constitucionais, e apresenta um desenho dos principais instrumentos jurídicos
utilizados pelo regime militar a fim de garantir a sua hegemonia política e jurídica. A análise passa pelo processo constituinte
de 1987-1988, para verificar em que medida se rompeu com o paradigma instaurado pela ditadura, e investiga as principais tentativas de, sob a vigência da nova Carta Magna, alterar o processo de reforma constitucional.

This Article explores the "law of lawmaking" – the body of rules that govern the legislative process in Parliament. It argues that this body of law, which received very little attention in legal scholarship, has great practical and normative importance. The Article develops the theoretical and normative thinking about the law of lawmaking by focusing on the question of what are (and should be) the aims of this body of law. It argues that the law of lawmaking should serve six main purposes: (1) organizing legislative activity and decision-making; (2) increasing the efficiency of the legislative process; (3) providing clear criteria for recognizing valid law; (4) restraining the legislature and protecting the opposition and citizenry; (5) improving the quality of legislation; and (6) guaranteeing a legitimate democratic process. The article also offers ways for realizing an optimal balance between these goals.

The Article then analyzes the existing rules governing lawmaking in the Knesset in light of these goals, and argues that the two main purposes that are insufficiently manifested in the current law of lawmaking are restraining the legislature and ensuring the quality of legislation. It also highlights some room for improvement in realizing the principles of transparency and public participation. The Article then turns to discussing the implications of the discussion on the proper purposes of the law of lawmaking for amending the rules governing lawmaking or designing new rules, including a Basic Law on Legislation. Finally, it discusses the implications of the discussion about the law of lawmaking for the issue of judicial review in its various types: judicial review of the legislative process; judicial review on the content of the legislative rules; and substantive constitutional review.

Note: the Article is in Hebrew

Aiming to contribute to the understanding of political reform as a complex phenomenon, the authors examined the legislative procedures that lead to political rejection of the bill n. 1210/2007 in the Chamber of Deputies Through the method of case-study and process tracing. The results led to discussions on the key variables that influenced PL’s 1210/2007 trajectory and the presentation of the concept of political rejection phenomenon as a useful resource for understanding the legislative process.