Speech by the Vice-President Sanita Osipova of the Constitutional Court Sanita Osipova at the FONTES conference in Poland

22.09.2018.

Warsaw 22.09.2018.

The borders” of the legislator’s freedom in the legislative process

The limits of the legislator’s discretion in adopting conceptually new regulation binding upon society is a very stimulating issue. Namely, the question of the freedom of the legislator in its actions in a democratic state which is governed by the rule of law, where the separation of powers exists and a person’s fundamental rights are binding upon the State, where the legislator is bound by the authorisation granted by electors, as well as the constitution and the international agreements entered into. I chose to examine the function of adopting legislation as the parliament’s obligation, that is, whether and to what extent the parliament has the right to delegate to other institutions the right to issue regulations that are binding upon a person. To conduct this research, I chose to focus on three questions: What is the law? What is the legislator? Does the parliament have the right to delegate the right to issue regulations binding upon a person, that is, laws, to other institutions?

What is the law?

Each society uses law for its self-organisation. Law is significant for the society as a whole, since it provides a framework for life within the society as a whole and for the life of every person. Therefore, it should be sufficiently stable to harmonise the society in the long-term, ensuring peace and justice. Here one might place the first red flag: whether and how often can the legislator change a stable legal order that has evolved in society and follows from the legal culture by creating new legal norms, if the legislator itself has been created and functions within this framework.

In the course of society’s development, the understanding of the nature of law, justice, sources of law, etc. changes. While the society lives in faith or abides by the religious norms the law is perceived as part of the world’s divine order. For example, the Old Testament clearly states the idea that the supreme legislator is God, therefore the competence of the secular ruler is limited. Although the understanding of law has notably evolved and currently it is not perceived as being divine, eternal and unchangeable. Nevertheless, it still can be said that law is a rather conservative phenomenon of culture, which changes slowly alongside transformations in the collective consciousness of the society. The ideas or perceptions, including the legal ones, form and develop in society in a logical order. The sociologists of law (E. Durkheim, M. Weber, N. Luhmann, et.al.) express the opinion that the organisation of the co-existence of each society is governed by certain purposefulness and collective rationality. Each legal norm is important for the effective functioning of the legal system even if it is not obvious at first sight. Therefore, amendments to each norm must be carefully considered, forecasting the possible consequences in the social reality.

Undoubtedly, law is used in society as an effective social tool to provide protection of values. Likewise, law itself is perceived in society as a value. With the development of society, the understanding of justice and the sources of law changes. Until the industrial society customary law dominated, and the discretion of the king and, later, of the parliament was limited. In the European countries, customary law lost its legal force only in the course of the 19^th and the 20^th centuries. For example, in Germany the collection of medieval customary law “Sachsenspiegel” lost its force in Prussia in 1794 when Allgemeines Landrecht für die Preußischen Staaten entered into force, but in other German lands in 1900, with the coming into force of the German Civil Law BGB. Moreover, it is worth recalling that under the influence of the historical school of law in the 19^th century, the legislator, in adopting new law, respected the legal norms that had taken root among the people, that is, the traditional legal norms. The process of drafting the Latvian Civil Law in the inter-war period of the 20^th century also confirmed that the commission that drafted this law was unwilling to break the legal order that existed among the people but rather wanted to compile and harmonise the law that had been traditionally applied by the people. During the second half of the 19^th century and the first half of the 20^th century, the representatives of the school of legal positivism, who held that only the legal norms that had been issued by the state had to be recognised as law, provided the substantiation for the legislator’s discretion in creating the law. This finding gave the parliaments the ability to not only create modern judicial and legal systems but also to engage in social engineering. For example, sterilisation and castration of “morally deficient” persons were part of the Swiss social policy in the period from 1890 to 1970. Similar experiments with humans, that were beneficial for the society as a whole, were conducted in other countries of the world as well, including the democratic ones, for example Sweden. During the first half of the 20^th century findings of legal positivism, interpreted even more broadly, “allowed” the totalitarian regimes to apply the law extensively contrary to the meaning and the spirit of law. Exactly at the time when the legislator acquired the discretion to freely regulate public life according to its views, Hans Kelsen substantiated the need for a constitutional court, which would keep this legislator’s discretion within the framework of the fundamental norm and the constitution, not permitting the disruption of society and deprivation of human liberty.

Thus, in the industrial society, the understanding of law as constant social norms that guaranteed eternally constant divine justice was gradually re-examined. In the second half of the 20^th century, with the establishment of a post-industrial society, the currently dominant idea became consolidated. That is the idea that the law is a social compromise, which the representatives legitimised by the people – the members of the parliament, make generally binding by presenting it in the form of legal norms. Here, the second red flag could be set up: this understanding significantly influenced the constancy of law, thus also impacting the legal stability in society and caused a flood of legal norms. Therefore, a disclaimer is added to this concept, namely, that although a legal norm is the outcome of a social compromise, to have stable law, to allow the society to make plans for the future and to protect a person’s legal expectations, in adopting it, the legislator must observe the provisions for the legality of a norm that have been developed in the legal system: the general principles of law, the constitution, a person’s fundamental rights. Moreover, the fundamental values, the fundamental norm, and the fundamental rights that exist in a society must be respected by all – both the national legislator and the supranational organisations, for example, the European Union, when adopting new legal norms as a social compromise.

Who is the legislator in a democratic state governed by the rule of law?

In a democratic state governed by the rule of law, the legislative procedure is based upon the democratic legitimisation of the legislator. In other words, the parliament is a representative elected by the people. In Latvia’s case, the constitution defines two legislators: the parliament and the people.

It seems simple; however, it turns out that at present it is not that easy at all to answer a basic question: “Who is the legislator?” An examination of the transformation of the contemporary society allows to conclude that, in the presence of widespread relations between nationals of different states, the borders of nation states get dismantled and the global society forms. The inhabitants of all states are creating ever more complex networks of relationships both domestically and, at the same time, in cooperation with other societies. Therefore, for the state to be able to control and to influence at least the conduct of its own citizens, it needs transnational legal authority.

The cross-border contacts of national states and the members of their societies create the network of relationships, upon which the global society is based. The global society comprises a complex and complicated multi-dimensional system that is shaped by societies, which are relatively independent but interact with each other and are co-dependent. This determines the need to re-examine the concept of the state’s sovereignty as well and to develop new forms of cooperation between the states. However, the establishment of a global society does not lead to the destruction of a nation state. Quite to the contrary, the significance of a nation state grows because it not only has to ensure the rule of law on the national level but also must participate in creating legal order and ensuring the rule of law on a supranational level. Thus, also the supranational level of legislation becomes more clearly outlined.

The third red flag: in examining the legislator, it must be kept in mind that whoever the legislator is, whether a national or a supranational parliament, the people are still the sovereign. Therefore, each legislator exercises the power of the people, not that of its own. Thus, both the national and the supranational legal norms must be created only by institutions authorised by the people, abiding by the limits of this authorisation. These limits of authorisation are clearly defined by the constitution of each state and interstate agreements.

Therefore, for the statutes adopted by the legislator to be legal, firstly, the legitimacy of the institution should be ensured, that is, the institution must have appropriate authorisation by the people, and, secondly, the principle of separation of powers, according to which the parliament as the legislator is both institutionally and functionally separated from the executive power, must be observed.

Consequently, only an appropriately authorised body of state power has the right to issue norms of conduct that are binding upon society. The legitimisation must be direct, and generally it cannot be transferred. It may be transferred in exceptional cases, but, in doing so, the limits set in the constitution and the law must be strictly observed. Moreover, the body authorised by the legislator has no right, without a special order by the legislator, to further transfer the authorisation to another body and to form a whole chain of “legislators”, with each link becoming more and more distant from the sovereign and the parliament legitimised by it. I do not know if the problem of authorisation and transfer of authorisation exists in Poland; however, it clearly exists in Latvia, which is evident from the significant number of cases concerned with this issue that have been heard by the Constitutional Court.

The parliament’s discretion, in authorising other state bodies to issue generally binding regulations

I would like to emphasize that the legitimation to legislate, granted by the sovereign, is the right that the parliament is entrusted with but it’s also the main duty of it and the purpose, for which it has been created. John Locke, upon introducing the principle of separation of powers, considered separation of the legislative branch from the executive branch as being of primary importance. Therefore, since the principle of separation of powers has been laid in the foundations of a contemporary democratic state governed by the rule of law, only a statute that has been adopted by the parliament in a procedure that complies with the constitution is recognised as being a law.

However, although in terms of the state law, when discussing the legislator, we mention one constitutional body – the parliament, with the contemporary society becoming more complex and multi-cultural, the need for new regulatory solutions is growing rapidly. The state must prepare and adopt such decisions without delay. Moreover, it should be taken into consideration that the larger in size and more complicated the society becomes the more significant the role of law becomes in it. Being “the only player on the field”, the parliament can no longer cope with this “work of producing legal norms”. Therefore, a number of specialists and state institutions become involved in the process of legislation.

Here we encounter reality. On the one hand, only the parliament is legitimised to adopt regulations that are binding upon society. On the other hand, the parliament lacks the capacity to regulate all relationships, with respect to which members of society expect a state established regulation. We have to admit, that the parliament needs the right to delegate a part of its functions to other state bodies. Moreover the government and other authorised state institutions are often more competent in drafting the technical norms than the legislator, and the procedure of decision-making in these institutions is less complicated. Traditionally these institutions are the government and the local self-governments. The authorisation by the parliament that allows the government to generally binding regulations is a deviation from the principle of separation of powers and as such must be implemented very cautiously, in accordance with the principles of a state governed by the rule of law.

However, this delegated legislation should not be considered as being generally inadmissible or anti-constitutional. The Constitutional Court of the Republic of Latvia has recognised that “To ensure more effective exercise of the state power, exemptions from the principle of the legislator’s supremacy are admissible. These exemptions follow from the Constitution. The aim thereof is to make the legislative process more efficient and also respond faster and more adequately to the need for amending the legal regulation.” Thus, if necessary, the legislator may delegate to the government or a local self-government the right to issue generally binding regulations; however, there are a number of rules that restrict the government and the local government in exercising this right. The government and the local government may only adopt regulations that are subordinated to the law and comply with the law, to facilitate the actual enforcement of laws. This is achieved by the parliament specifying those provisions of law the implementation of which requires a more detailed regulation. Therefore, first of all, the right to issue such norms must be delegated by the legislator, and, second of all, in exercising this right, the limits of the authorisation established by the legislator, as well as the principles of the separation of powers and legality must be observed. Likewise, Latvian case law and legal doctrine have clearly defined the prohibition to transfer the delegation granted by the legislator to another subject of law.

However, the legislator, in delegating to other state bodies the right to issue generally binding regulations, enjoys rather limited discretion. The Constitutional Court of the Republic of Latvia in its case law has emphasised a number of criteria that the legislator must take into consideration when granting such authorisation.

First, not every matter may be decided by the executive branch. There are matters, on which only the parliament itself may decide, for example:

The Saeima, acting as the legislator, does not have the right to authorise the executive power to decide matters, which, according to the Satversme, are within the exclusive competence of the Saeima
The fundamental rights may be restricted only by law or on the basis of a law, which clearly defines the scope of the restriction on fundamental rights. Fundamental rights may not be restricted without clear authorisation by the legislator. When exercising the authorisation, in turn, a restriction on a person’s fundamental rights must be avoided if the authorising norm does not directly point to the need for a restriction.
The legislator itself must decide upon all matters that are important in the life of the state and the society, which require a conceptual choice and a political discussion.

Secondly, the parliament must abide by the formal requirements regarding granting the authorisation:

The legislator, in authorising the executive power to draft regulation on a certain matter, may not cause the balance between the legislative and the executive power to shift in favour of the executive power to the extent that the principle of separation of powers and, thus, also the essence of a democratic state order, would be jeopardised.
The authorisation should be specific, that is, clearly defined. The parliament must clearly define in the authorising norm “the scope of authorisation granted to the authorities and the way of implementing it, taking into consideration the legitimate aim of the particular measure to provide adequate protection to an individual against arbitrary interference.”
The authorisation must be legal. First and foremost, the legislator is responsible for compliance of the authorisation with norms of higher legal force.

Thirdly, the parliament is co-responsible for the implementation of the authorisation that has been granted. The legislator must ensure, through parliamentary control or other legal mechanisms at its disposal, that the authorisation would be implemented in accordance with the Satversme .

To conclude:

Over time, the understanding of what law is has changed; however, the objectives of law in society, namely, to ensure justice, peace and social stability, have not changed.
The changes in the understanding of the sources of law and the legislator’s discretion have formed the contemporary democratic state governed by the rule of law, in which constitutional justice was created to ensure that the legislator would act within the limits of law, that is, in compliance with general legal principles, the constitution, a person’s fundamental rights and international commitments, which limit the legislator’s discretion.
The parliament as the legislator authorised by the people must primarily adopt legal regulation in all matters important for society, in particular, regarding such that pertain to restrictions on a person’s fundamental rights and matters of national importance. However, it follows from the nature of the contemporary state and society that the legislator alone is unable to adopt all regulations that a society needs. Therefore, the legislator has the right to authorise other state bodies to issue generally binding regulations.
In authorising other state bodies to issue generally binding regulations, the legislator, both as an authorising body and the body authorised by the people, is closely linked to the principles of the people’s sovereignty, the separation of powers and legality. If the legislator’s authorisation or the implementation thereof causes deviations from these principles, then the act has been adopted ultra vires and is void since its adoption.