Theory and Practice of Legislation最新文献

{"title":"Omnibus legislation as a tool of legislative reform by developing countries: Indonesia, Turkey and Serbia practice","authors":"Bagus Hermanto, Nyoman Mas Aryani","doi":"10.1080/20508840.2022.2027162","DOIUrl":"https://doi.org/10.1080/20508840.2022.2027162","url":null,"abstract":"ABSTRACT Globally, most developing countries struggle to shift their legislation paradigm by proposing legislative reform. This is because these countries have realised legislative reform ability to create an effective, efficient, and comprehensive legislative drafting framework within legal transplanted omnibus legislation. Therefore, this research aims to determine the use of the omnibus legislation as a comparative legal tool in Indonesia, Turkey, and Serbia to identify, analyze, and explain their legislative process. In this context, this research proposes the importance of omnibus legislation despite the number of possibility-driven factors, obstacles, and standard measurements to pursue legislative reform agenda by developing countries.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44400848","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Introduction: illiberal tendencies in law-making","authors":"Tímea Drinóczi, Ronan Cormacain","doi":"10.1080/20508840.2021.1955483","DOIUrl":"https://doi.org/10.1080/20508840.2021.1955483","url":null,"abstract":"ABSTRACT The ongoing autocratisation processes in the last couple of years have led us to ask the question of how legislation is actually made in a political and legal environment in which illiberal and populist governments govern and systematically disregard the Rule of Law, democracy and relativize human rights protection. Our goal was not to investigate illiberalism as a whole, but, instead, examine the interrelationship between illiberal tendencies in government and the law-making process. Do illiberal states show evidence of a particular type of law-making process? Or do certain types of law-making process make it easier to have illiberal tendencies in government? This special issue collects the most prominent examples from Poland, Hungary, Turkey, Brazil, Italy, and Indonesia, and even if it is difficult to draw firm and over-arching conclusions from the different states surveyed in this issue, it is possible to tentatively identify some common themes. Firstly, some states reveal a strong reliance on pure majoritarian principle, the instrumental use of legislation, the increased use of accelerated legislative processes and omnibus legislation, disregard of compromised procedural and semi-procedural constitutional review of legislation. Secondly, there is the reduction of the importance of the citizen in the legislative process. Thirdly, illiberal projects are easier to implement in a parliamentary system than in a presidential system. Fourthly, the independence of the judiciary from the ruling party can be compromised where constitutional or supreme courts are “packed” by the executive with judges who can be seen to favour that ruling party.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44567644","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Illiberal tendencies in Indonesian legislation: the case of the omnibus law on job creation","authors":"Saru Arifin","doi":"10.1080/20508840.2021.1942374","DOIUrl":"https://doi.org/10.1080/20508840.2021.1942374","url":null,"abstract":"ABSTRACT For the first time in the country’s legislative history, the Indonesian Parliament passed an omnibus law on job creation. By incorporating multiple statutory provisions from different types of law into a single Act, the omnibus law heralded a new age of Indonesian legislation. The legislation model of the omnibus bill, on the other hand, has been heavily criticised, with venues including marches, demonstrations, social media messages, and academic discussion forums. The government’s new omnibus bill format for the Job Creation Law, according to this article, endangers Indonesia’s parliamentary democracy by tilting it toward illiberalism. In illiberal democracies, public engagement is often ignored. Parliament does not have enough time to discuss the substance of Articles because they are lengthy and time-limited. An omnibus legislation, on the other hand, takes longer to complete due to the increased number of content rules. Consequently, rather than satisfying public expectations, the government’s policy has been distilled into the omnibus bill plan. Meanwhile, the omnibus bill has thrust society to the forefront of the legislative agenda. To be completely frank, the efficacy and effectiveness with which legislative laws convey people’s desires dictates the quality of legislation. As a result, this article proposes amending the legislation governing legal development by introducing an omnibus law model appropriate for Indonesia’s legal democracy.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2021-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2021.1942374","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43944805","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legislative resistance to illiberalism in a system of coalitional presidentialism: will it work in Brazil?","authors":"Thomas Bustamante, E. Meyer","doi":"10.1080/20508840.2021.1942370","DOIUrl":"https://doi.org/10.1080/20508840.2021.1942370","url":null,"abstract":"ABSTRACT Illiberal governments typically attempt to undermine representative democracy by adhering to a single comprehensive doctrine sustained through a majoritarian account of legitimacy that is suspicious of the rationality of liberal constitutional democracies. But perhaps there is hope for a system of coalitional presidentialism, such as Brazil. It has been argued that coalitional presidentialism may be in a better position to resist an illiberal project to erode democracy because of its centripetal and conservative forces, which might constitute a firewall against the concentration of powers in the executive branch. The legislature can either slow the pace of authoritarian measures or subject the government to relevant political defeats, raising the chances of democratic reconstruction. Should we expect success for legislative resistance to illiberal populism? What can the Brazilian experience under the first eighteen months of Bolsonaro's government teach us about it? Even though it might be too early for a conclusive assessment of these matters, we try to offer in the following sections a moderately optimistic response to the first question based on our assessment of the second.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2021-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2021.1942370","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48653268","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legislation in Illiberal Poland","authors":"A. Bień-Kacała","doi":"10.1080/20508840.2021.1942364","DOIUrl":"https://doi.org/10.1080/20508840.2021.1942364","url":null,"abstract":"ABSTRACT Poland and Hungary seem to represent the same type of constitutionalism. It can be defensibly labelled as illiberal, as it is based on a longing for a charismatic leader and specific national identity, combining individual freedom with non-liberal values, and distances itself from western standards comprising the Rule of Law, democracy, and human rights protection. Weak restraint is provided by EU and international norms and procedures. The aim of this paper is to recognize the tendencies in legislative practice in Poland since 2015 that are associated with the illiberalization of the constitutional system, and investigate their role in deterioration of the legislative quality, and thus, maintenance of illiberal constitutionalism. These tendencies are detected as inequality, defective constitutional justice and compromised judicial independence, accelerated and pure majoritarian approach to legislation, and illiberal content of laws. It is found that the legislation has been fuelled by the majoritarian vision of a state community that is emphasized in the political narrative of the ruling alliance. This vision has been transformed into political decision-making and situated against rule-of-law considerations. It generates de facto discrimination against certain groups of people (LGBTQI+), de iure inequalities (retirement age and pension), and the will of the (majority of) people is placed above the Constitution. A captured constitutional court is not able to defend the Constitution. The legislative process has been accelerated to such an extent that there is no meaningful discussion, consultation, or public participation in the procedure. The statutes are abused for informal constitutional changes or have symbolic meaning without proper legislative effectiveness. Legislation during the COVID-19 crisis has not improved the quality of laws at all and could not properly addressed the criticism emerged after some experiences of the pandemic-related functioning of the parliament and government. The combination of all these tendencies makes the Polish legislative practice distinctive in its illiberal tone.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2021-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2021.1942364","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44671257","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Governmental predominance in Italian law-making: undemocratic or illiberal?","authors":"G. Piccirilli","doi":"10.1080/20508840.2021.1942372","DOIUrl":"https://doi.org/10.1080/20508840.2021.1942372","url":null,"abstract":"ABSTRACT Italy has experienced different kinds of involution of parliamentary democracy and the legislative output over the course of the past couple of decades. Following the ‘Berlusconi-era’ (1994–2011) two major issues have dominated the evolution of Italian politics: technocratic governments (predominantly that of Monti in 2011–2013) and the recent emergence of populist parties (e.g. the Five Star Movement, the League). Despite the apparent opposition of these phenomena, they do share many commonalities with regard to their approaches to the legislative process. They both fostered an acceleration of established in Italian law-making, which also become more apparent in the last decade. The constraints provided for by the 1948 Constitution (including the Head of State and the independent and powerful Constitutional Court) had so far limited impact on these problematic trends.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2021-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2021.1942372","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42704791","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The misuse of the legislative process as part of the illiberal toolkit. The case of Hungary","authors":"V. Z. Kazai","doi":"10.1080/20508840.2021.1942366","DOIUrl":"https://doi.org/10.1080/20508840.2021.1942366","url":null,"abstract":"ABSTRACT 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.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2021-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2021.1942366","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49646874","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"With a different name, the rose is not a rose anymore: legislative quality and gender equality in the AKP's Turkey","authors":"V. Scotti","doi":"10.1080/20508840.2021.1942368","DOIUrl":"https://doi.org/10.1080/20508840.2021.1942368","url":null,"abstract":"ABSTRACT The 1982 Turkish Constitution established a legal system aimed at ensuring state efficiency and stability more than the full respect of the rule of law. In the last decade, the latter is undergoing a democratic decay. The currently dominant Islamic Populism is reinterpreting fundamental concepts of constitutional democracy to entrench a paternalistic majoritarian vision of the law-making process and of the society. This perspective undermines the principle of gender equality, confirming the denial of LGBTQIA+ rights and increasingly favouring the principle's interpretation in line with the Islamic conception of gender complementarity. Such a limitation in women's enjoyment of equality is quite striking for a country that started the process of women's emancipation and empowerment at the beginning of the twentieth century, coevally with the establishment of the Turkish Republic. Furthermore, this drift raises doubts as to the activity of the parliamentary committee on ‘Equal opportunity for women and men’, established in 2009 with the duty of ensuring the respect for gender equality throughout the law-making process. Does it effectively enhance gender equality in the legislation or is it a mere reputational tool? To answer this question, after having introduced the illiberal features of the current Turkish regime, the activity of the Committee is assessed against the European and Turkish standards on the quality of legislation. Finally, concluding remarks compare the Turkish case with other illiberal authoritarianisms’ discourse on gender equality, underscoring to what extent the Turkish authoritarian drift entails an anti-gender evolution in line with the conservative ideological vision of several other populisms.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2021-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2021.1942368","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45966627","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Parliamentary scrutiny of the quality of legislation in Canada","authors":"J. Keyes","doi":"10.1080/20508840.2021.1904567","DOIUrl":"https://doi.org/10.1080/20508840.2021.1904567","url":null,"abstract":"ABSTRACT This paper looks at how legislative quality is addressed in Canada by private (non-Executive) members of the two legislative chambers forming part of the federal Parliament (the Senate and the House of Commons). It considers legislative quality from three perspectives (1. Policy and Politics, 2. Legality, 3. Accessibility / Intelligibility) and reviews the resources and mechanisms parliamentarians have at their disposal to assess and improve the quality of legislation. The paper concludes that, while there is some potential for considerable parliamentary contribution to legislative quality, it is in fact relatively limited. This largely results from the dominant role the Executive plays in the development and enactment of legislation. The paper suggests the current pandemic crisis might provide an opportunity to re-evaluate this dominance and approaches to addressing legislative quality in Canada.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2021-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2021.1904567","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46327268","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Parliamentary scrutiny of the quality of legislation in Germany","authors":"Matthias Rossi","doi":"10.1080/20508840.2021.1904566","DOIUrl":"https://doi.org/10.1080/20508840.2021.1904566","url":null,"abstract":"ABSTRACT In Germany, there is no exhaustive institutionalised process of scrutiny for parliament to ensure the quality of laws. Neither the members of parliament nor the parliamentary administration are tasked with this quality review. In fact, the German legislative procedure draws on a pluralistic concept of quality review: all organs and persons involved in legislation are called upon in order to ensure good legislative quality. This concept stresses the political reality of the principle of democracy, rather than the legal rationality resulting from the rule of law, and therefore accepts inferior laws based on democratic legitimacy rather than good laws that in turn do not rely upon the expertise of democratically non-legitimated committees. An equilibrium between these poles can only be found in time: after all, laws are amendable, thus adaptive and improvable.","PeriodicalId":42455,"journal":{"name":"Theory and Practice of Legislation","volume":null,"pages":null},"PeriodicalIF":4.0,"publicationDate":"2021-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/20508840.2021.1904566","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43150228","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}