ARTICLES
The systematic violation of the rules of good legislation: a thorn in the side of the rule of law in Greece today
In the context of the rule of law, public authorities always act on the basis of the restrictions imposed by law, in accordance with the values of democracy and fundamental rights and under the scrutiny of independent and impartial courts. In turn, good legislation is a necessary condition for the just and efficient operation of the state, as made clear by both the title and the recommendations of the 2017 parliamentary conference on the topic. According to S. Vlachopoulos, a professor of public law at the Athens Law School, good legislation is a constitutional goal and is linked to the principle of the rule of law (Article 25 para. 1 of the Constitution) under the more specific aspect of legal certainty, as well as the constitutional principle of transparency.
To ensure the production of good legislation, provisions of the Constitution and the Rules of Procedure of the Parliament regulate individual issues related to the legislative process and set certain rules that must be followed when drafting and submitting a bill or an amendment for voting (see, inter alia, Articles 73, 74, 75 of the Constitution, Articles 85, 87, 88 and 101 and in general Articles 84-123 and 160 of the Rules of Procedure of the Parliament). Furthermore, law 4622/2019 regulates, through Articles 57 to 64, issues of legislative procedure and good legislation.
Based on these general rules and Article 59 paragraph 5 of law 4622/2019, the Manual of Legislative Drafting Methodology, issued in 2020, analyses and specifies the rules that must be observed in the framework of the legislative drafting process. This handbook provides, inter alia, instructions and directions regarding: the consultation process (see, inter alia, p. 12-13, 67-68); amendments (see, inter alia, p. 4, 18, 63, 70-71, 77-78); the issue of repealed provisions (p. 16 and 35), and even the title of a bill (p. 18-19, 47).
However, the process that is followed in practice seems to deviate systematically from the rules set by the Constitution and the Rules of Procedure of the Parliament, constituting a thorn in the side of the rule of law. As S. Vlachopoulos states, the phenomenon of the violation of the rules of good legislation is a timeless disease of the Greek legal order. At the same time, as G. Gerapetritis (professor of public law and currently Minister of State) aptly commented in 2012, “there is a significant deterioration in the observance of procedures for the production of legislation, to the extent that one could reasonably argue that Parliament and the Constitution are being disregarded. The parliamentary majority, having the assurance that their legislative procedure will not suffer the burden of constitutional review, feel the weight of the constitutional limits set out for the parliamentary process much less… “
The minutes of the 2017 Conference on Good Legislation highlight the problems that arise in various fields. Reports produced on the Quality of Legislation Index for 2018, 2019 and 2020 by the thinktank KEFIM (Center for Liberal Studies) also serve to reflect the problems in the drafting process.
The failure to observe the procedural formula in the legislative process continues to be a problem in 2021, despite the passage of so many years, and G. Gerapetritis’s comments still remain relevant today (despite the fact that he is now one of those responsible for producing legislation). The rules are being systematically violated, whether it be by the late submission of amendments, problems in the consultation process, the unclear repealing of old legislation with new, or even the titles of bills. The fact that these issues can not be controlled by the judiciary, since case law determines that ‘interna corporis’ issues of Parliament fall outside of judicial jurisdiction, seems to have made the executive indifferent to following the rules laid down by its own institutions.
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