In this post I will discuss for the last time matters that are common for the whole federal parliament, both its chambers, namely the legislative process.
Nobody doubts that laws are a very important matter, after all I have written in the suggestion of the constitution's section about fundamental rights that duties can be imposed only by the law. Therefore high attention must be paid to rules of their making and therefore main principles of lawmaking have to be defined by the constitution, as it is common in states' constitutions (though principles of lawmaking are sometimes written in a separate law). My following proposal for the most part corresponds to common constitutional texts regulating this matter but it partially differs also, in particular for the reason of my different view of relation between the executive and the legislative power in the state.
This my different point of view is expressed just in the first suggested paragraph. This paragraph determines who has the right to lay bills and it enumerates only individual members of the Assembly of the Union or groups of its members. The executive power (the Council of Chancellors in my terminology) is utterly absent here, not by an oversight but wholly deliberately. It is a common practice in European (and extra-European) states that the executive power (the government) lays bills and nobody is puzzled about it. Let us however ask why should it be so. Separation of the state power in the legislative and the executive power is based on a theory originating already in the age of Enlightenment and saying that the power in the state can easily turn into tyranny if concentrated in one pair of hands. Therefore was introduced that someone else makes laws and someone else acts according to them. The legislative power creates rules but cannot enforce them in practice and the executive power then pursues practical measures but only in the frame of rules that the legislative power gave to it – both state powers control each other this way. Or it theoretically should be at least so. But if governments lay bills in practice, they in fact create rules to themselves according to which they will act – and it definitely breaks purpose of separation of these state powers. Some people can make an objection that it is not duty of the legislative power (the parliament) to automatically pass government's bills but we know how the things are: governments are formed in order that they have so called parliamentary majority, that is in order that – among other thing – government's bills easily pass in parliament votings. If governments have such parliamentary majority (and they have it almost always), government's bills really pass almost always and control of the executive power by the legislative power is thus only formal (the government gives rules to itself). The principle of separation of the executive and the legislative power and their mutual control is weakened in present European states (also for other ground than this but I will deal with it more precisely in the section about the executive power) and the executive power gets too predominant position. It is necessary to restore balance between these two state powers in conformity with the theory of separation of state powers and a wholly new constitution of the European federation gives an opportunity for it. My proposal assumes no exceptions.
It is common in bicameral parliaments that bills are laid to one predetermined chamber, typically the “lower” one. But this favours one selected chamber to the other one and is not therefore applicable for my proposal of the constitution of the European Union according to my view because I have written in a previous post that both chambers of the European federal parliament should have equal position. In order that it is maintained no chamber can be preferred in the legislative process, so my suggestion of the second paragraphs says that a bill is discussed first in the chamber in which it was laid.
The third paragraph is the longest among all paragraphs of this article and it generally regulates the process of adopting a bill in the frame of one parliamentary chamber. It expressly demands adoption in three steps - readings and shortly describes individual steps. In the first reading all deputies of the respective chamber should be informed about a bill and should decide whether they will discuss it further. In the second reading the deputies should have the possibility to propose amendments to the bill. I added also a remark that proposed amendments must refer to the discussed matter; this provision should prevent from creation of so called riders, proposed amendments by those their proposer tries to surreptitiously enforce a thing that would not pass as an independent proposal. The third reading then should serve for final adoption or rejection of the presented bill without the possibility of proposed amendments. Each reading should be followed by a debate which can be omitted at the request of absolute majority of the present (not all in this case) deputies of the respective chamber. The minimal period that should pass between the individual readings is a question. I am not sure what period is the most suitable, whether rather shorter or longer. I want however not to view the period between the individual readings as a mere technical break but as suitable retardation of the process of adoption a law making rash adoption of a bad law more difficult and giving a possibility to citizens to follow the legislative process and to react to it. That is the reason why I chose 20 days as the minimal period of time that has to pass between the individual readings; and my formulation prevents not that the chambers extend this period by their rules of procedure. The last sentence of this paragraph speaks just about the rule of procedure of each chamber and refers to it in particulars that cannot be included in the short text of the constitution itself. In the end, I must add mention of two explicitly enumerated exceptions for those is not meant what I have written above: the law about declaration of war and the law terminating state of war – one reading has to be sufficient in discussion about these laws for a possible concrete situation would hardly allow long-winded adoption of them. I reserved a separate paragraph for it; then, I will deal with it more in detail in a post discussing the executive power.
The next paragraph speaks about a majority necessary for adoption of a bill in the respective chamber. My suggestion is absolute majority, i.e. majority at least 50% of all deputies of the respective chamber (without regard to the number of deputies really present). I wrote about it in one of my previous posts already.
If one chamber approves a bill, this one must logically be sent to the second chamber where the same process of approval will take place. The fifth paragraph stipulates immediate sending an approved bill from one chamber to the other and determines that adoption of a law requires approval by both chambers.
In the suggestion of the sixth paragraph I return to the executive power. I concede some part to it in the legislative process after all, namely a possibility to return laws adopted by the parliament to it for reassessment. Although I disagree that the executive power itself makes laws (as it occurs today) I believe that the right of it to return a law to the parliament is an important component of mutual control of state powers. I concede this right of so called suspensive veto to the holder of the executive power of the European federation, the Council of Chancellors. It has 20 days for assenting to it or returning it with observations to the Assembly of the Union. In the second case each chamber has – without possibility of amendments – to vote on the law again and now the majority of 4/7 (=57%) of all deputies of the respective chamber is required because the parliament has to “outvote” the veto. The limit of 4/7 is a number that goes not much away from 50% and can be expressed in a so simple fraction as possible too. The paragraph determines two exceptions, again the mentioned laws about proclamation of war and terminating state of war – on the one hand for the reason of time, on the other hand for the reason of control of the executive power by the legislative power.
The eighth paragraph of my proposal determines how the adopted law comes into effect. It says that adopted law shall immediately be inscribed in the Official Journal of the Union and it comes into effect at that moment, unless the law itself determines something else.
The following two suggested paragraphs say what attributes adopted laws must not have. The ninth one determines contradiction to the constitution as the first such thing and forbids further a law to have retroactive effect. The tenth paragraph then forbids more mutually unrelated matters to be regulated in the frame of one law which should have positive influence on lucidity of federal laws (and it goes again against the so called riders as it is mentioned above).
The last paragraph of this suggested article resembles the previous two ones, it determines required components of the law about declaration of war because it is not desirable that it is promulgated carelessly and gives carte blanche to the executive power. According to me therefore a bill of such law must contain a reason of declaration of war, definite determination of the enemy and objective of military actions in order that it is not possible to arbitrarily misuse the armed forces of the federation.
That is all for this time, the next post will deal with special characteristics of each chamber.
Nobody doubts that laws are a very important matter, after all I have written in the suggestion of the constitution's section about fundamental rights that duties can be imposed only by the law. Therefore high attention must be paid to rules of their making and therefore main principles of lawmaking have to be defined by the constitution, as it is common in states' constitutions (though principles of lawmaking are sometimes written in a separate law). My following proposal for the most part corresponds to common constitutional texts regulating this matter but it partially differs also, in particular for the reason of my different view of relation between the executive and the legislative power in the state.
This my different point of view is expressed just in the first suggested paragraph. This paragraph determines who has the right to lay bills and it enumerates only individual members of the Assembly of the Union or groups of its members. The executive power (the Council of Chancellors in my terminology) is utterly absent here, not by an oversight but wholly deliberately. It is a common practice in European (and extra-European) states that the executive power (the government) lays bills and nobody is puzzled about it. Let us however ask why should it be so. Separation of the state power in the legislative and the executive power is based on a theory originating already in the age of Enlightenment and saying that the power in the state can easily turn into tyranny if concentrated in one pair of hands. Therefore was introduced that someone else makes laws and someone else acts according to them. The legislative power creates rules but cannot enforce them in practice and the executive power then pursues practical measures but only in the frame of rules that the legislative power gave to it – both state powers control each other this way. Or it theoretically should be at least so. But if governments lay bills in practice, they in fact create rules to themselves according to which they will act – and it definitely breaks purpose of separation of these state powers. Some people can make an objection that it is not duty of the legislative power (the parliament) to automatically pass government's bills but we know how the things are: governments are formed in order that they have so called parliamentary majority, that is in order that – among other thing – government's bills easily pass in parliament votings. If governments have such parliamentary majority (and they have it almost always), government's bills really pass almost always and control of the executive power by the legislative power is thus only formal (the government gives rules to itself). The principle of separation of the executive and the legislative power and their mutual control is weakened in present European states (also for other ground than this but I will deal with it more precisely in the section about the executive power) and the executive power gets too predominant position. It is necessary to restore balance between these two state powers in conformity with the theory of separation of state powers and a wholly new constitution of the European federation gives an opportunity for it. My proposal assumes no exceptions.
It is common in bicameral parliaments that bills are laid to one predetermined chamber, typically the “lower” one. But this favours one selected chamber to the other one and is not therefore applicable for my proposal of the constitution of the European Union according to my view because I have written in a previous post that both chambers of the European federal parliament should have equal position. In order that it is maintained no chamber can be preferred in the legislative process, so my suggestion of the second paragraphs says that a bill is discussed first in the chamber in which it was laid.
The third paragraph is the longest among all paragraphs of this article and it generally regulates the process of adopting a bill in the frame of one parliamentary chamber. It expressly demands adoption in three steps - readings and shortly describes individual steps. In the first reading all deputies of the respective chamber should be informed about a bill and should decide whether they will discuss it further. In the second reading the deputies should have the possibility to propose amendments to the bill. I added also a remark that proposed amendments must refer to the discussed matter; this provision should prevent from creation of so called riders, proposed amendments by those their proposer tries to surreptitiously enforce a thing that would not pass as an independent proposal. The third reading then should serve for final adoption or rejection of the presented bill without the possibility of proposed amendments. Each reading should be followed by a debate which can be omitted at the request of absolute majority of the present (not all in this case) deputies of the respective chamber. The minimal period that should pass between the individual readings is a question. I am not sure what period is the most suitable, whether rather shorter or longer. I want however not to view the period between the individual readings as a mere technical break but as suitable retardation of the process of adoption a law making rash adoption of a bad law more difficult and giving a possibility to citizens to follow the legislative process and to react to it. That is the reason why I chose 20 days as the minimal period of time that has to pass between the individual readings; and my formulation prevents not that the chambers extend this period by their rules of procedure. The last sentence of this paragraph speaks just about the rule of procedure of each chamber and refers to it in particulars that cannot be included in the short text of the constitution itself. In the end, I must add mention of two explicitly enumerated exceptions for those is not meant what I have written above: the law about declaration of war and the law terminating state of war – one reading has to be sufficient in discussion about these laws for a possible concrete situation would hardly allow long-winded adoption of them. I reserved a separate paragraph for it; then, I will deal with it more in detail in a post discussing the executive power.
The next paragraph speaks about a majority necessary for adoption of a bill in the respective chamber. My suggestion is absolute majority, i.e. majority at least 50% of all deputies of the respective chamber (without regard to the number of deputies really present). I wrote about it in one of my previous posts already.
If one chamber approves a bill, this one must logically be sent to the second chamber where the same process of approval will take place. The fifth paragraph stipulates immediate sending an approved bill from one chamber to the other and determines that adoption of a law requires approval by both chambers.
In the suggestion of the sixth paragraph I return to the executive power. I concede some part to it in the legislative process after all, namely a possibility to return laws adopted by the parliament to it for reassessment. Although I disagree that the executive power itself makes laws (as it occurs today) I believe that the right of it to return a law to the parliament is an important component of mutual control of state powers. I concede this right of so called suspensive veto to the holder of the executive power of the European federation, the Council of Chancellors. It has 20 days for assenting to it or returning it with observations to the Assembly of the Union. In the second case each chamber has – without possibility of amendments – to vote on the law again and now the majority of 4/7 (=57%) of all deputies of the respective chamber is required because the parliament has to “outvote” the veto. The limit of 4/7 is a number that goes not much away from 50% and can be expressed in a so simple fraction as possible too. The paragraph determines two exceptions, again the mentioned laws about proclamation of war and terminating state of war – on the one hand for the reason of time, on the other hand for the reason of control of the executive power by the legislative power.
The eighth paragraph of my proposal determines how the adopted law comes into effect. It says that adopted law shall immediately be inscribed in the Official Journal of the Union and it comes into effect at that moment, unless the law itself determines something else.
The following two suggested paragraphs say what attributes adopted laws must not have. The ninth one determines contradiction to the constitution as the first such thing and forbids further a law to have retroactive effect. The tenth paragraph then forbids more mutually unrelated matters to be regulated in the frame of one law which should have positive influence on lucidity of federal laws (and it goes again against the so called riders as it is mentioned above).
The last paragraph of this suggested article resembles the previous two ones, it determines required components of the law about declaration of war because it is not desirable that it is promulgated carelessly and gives carte blanche to the executive power. According to me therefore a bill of such law must contain a reason of declaration of war, definite determination of the enemy and objective of military actions in order that it is not possible to arbitrarily misuse the armed forces of the federation.
That is all for this time, the next post will deal with special characteristics of each chamber.
