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PARLIAMENTARISM AND LEGISLATIVE ACTIVITY
Parliamentary customs: theoretical basis and development prospects
DOI: http://dx.doi.org/10.14420/en.2015.1.5
Irina Evgenievna Dzhimbinova, PhD of Legal Sciences, Assistant Member of the Federation Council of the Federal Assembly of the Russian Federation, e-mail: [email protected]
Abstract. Sources of law have always been one of the key themes in the
research of many authors since the establishment of the law to the present day, and a custom is the oldest one among sources of law. In the history of the law, its role was different, and although currently a legal custom is recognized in Russia as a formal source of law, its role in the Russian legal system is negligible. In the article, the author examines the role of a legal custom in the activities of the Chambers of the Russian Parliament, as well as provides examples of legal customs exercised in practice of parliaments of foreign countries. Keywords: source of law, custom, Parliament, parliamentary activity.
From the very beginning of operation of the Chambers of the Russian Parliament constitutional provisions, some historical customs and traditions of the representative bodies of our country, the experience of foreign legislative bodies became the main sources of their activities.
Currently, Parliament in its activity is guided by the Constitution of the Russian Federation, the Federal Law «On the status of Member of the Federation Council and the status of Deputy of the State Duma of the Federal Assembly of the Russian Federation», as well as the Regulations of the Chambers of the Federal Assembly.
Parliamentary custom made no mention in the Constitution of the Russian Federation or in the Regulations of the Chambers. However, all the activity of Parliament consists of customs, transformed at various times into the Regulations of the Chambers and Federal Laws related to the activities of the Chambers of the Federal Assembly.
However, examples of the parliamentary custom exist. Even the first Chairman of the Federation Council said: «There are no political parties, or groups, or fractions in the Chamber. We cannot have fractions... and every opinion should be respected». This rule was valid throughout the first two convocations of the Federation Council.
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In 1996, the Federation Council created another precedent, which became a kind of a parliamentary custom: «In the Federation Council the question of termination or confirmation of powers of a member of the Chamber is not considered until the decision of the court is entered into force»1.
In the first years of operation, the Federation Council has developed a custom of visits by members of the Federation Council into the regions that they represent in the Chamber, for example, to the inauguration of Governors, meetings and discussions of the regional authorities, other events. In the last three or four years, visits to the regions began to wear a planned character. They are included as weekly trips to the work plans of the Chamber, along with session meetings.
As a custom, the rule applied for a long time to opening the first session of the representative body of state power by the oldest deputy. Currently, in the Constitution of the Russian Federation in the part 3, article 99, the said custom is stipulated by law.
Another shining example of how custom is transformed into law is manifestation in the laws of the state or national symbols, festive significant and memorial dates, traditions of military, medical and other types of oaths.
The Regulations of the Chambers of the Federal Assembly can be considered a peculiar compilation of parliamentary customs. To date, many tried and tested methods of parliamentary activities since its inception, as well as significant experience of foreign parliaments have found their reflection in it. The process of improving the regulatory norms does not stop today. The Regulations are amended on the basis of the practice of parliamentary activity of the Chamber.
In modern jurisprudence, there is no common understanding of custom as a source of law. You can find a large number of definitions of «custom» and «custom in law».
Thus, for example, the Soviet encyclopedic dictionary gives the following definition of a custom - «a stereotypical way of conduct, which is reproduced in a certain society or a social group and is accustomed to their members. Outdated customs are replaced in the course of historical development by new ones, leading to the formation of the new, progressive public relations».
In the popular online-encyclopedia Wikipedia the custom is understood as «spontaneously formed rule of conduct, included in the system of legal norms and acknowledged by a source of law».
In the legal literature there are also different positions expressed with respect to the definition of «custom».
Thus, in the tutorial of A.V. Melekhin «On the theory of state and law» it is said, that "custom in law is a rule of conduct authorized by the state, that happened historically in the force of constant repeatability and recognized by the
1 Regulations of the Federation Council of the Federal Assembly of the Russian Federation and the development of the Russian parliamentarism: history, modernity, and prospects. - M., 2005.
Irina Dzhimbinova. Parliamentary customs: theoretical basis and development prospects
state as mandatory code of conduct»1.
In tutorials on the theory of law and state, it is often given the definition as well as a custom, and a custom in law. For example, Svetlana Vladimirovna Boshno offers the following definition: «Custom is the prevailing rule of conduct which exists and applies for a long time and serves a regulator of social relations»2. And also: «custom in law is historically formed rule of conduct, authorized by the state; exercised by reference to a custom, rather than textual manifestation in law»3.
There are different opinions concerning the place and role of a custom in the state law. Thus, A.S. Belkin believes that, in the case of public-legal relations «other category rather than custom in law is needed... habit should become such a category»4. At the same time, A.L. Sivkov believes that «no most perfect regulations can cover all possible variants and collisions that inevitably arise in the work of parliament. And in these unprecedented situations, the only way to overcome the emerging conflict is an appeal to alternative sources of parliamentary procedures: precedent, tradition, interpretation of regulations, the experience and expertise of staff»5.
The Constitution of the Russian Federation has no direct reference to the custom as a source of law. However, the Constitution of the Russian Socialist Federative Soviet Republic (RSFSR) of 1918 year stipulated such a rule. Thus, article 66 stated, that «elections shall be held in accordance with established customs, in the days that are set by local Councils».
During the existence of the Soviet Union, there were special commissions on traditions, holidays and ceremonies at many Councils of Ministers of the Union and autonomous republics, several executive committees of local Councils. Their main goal was propaganda of Soviet traditions and customs, as well as the coordination of the activities of state bodies for study, compilation and dissemination of such customs, as an important means of enhancing the legal awareness of citizens, promoting Socialist ideals and educating people in the spirit of patriotism6.
I believe that such a body could be useful and now as a means of improving the legal literacy of public and as a certain center for the collection and analysis of current customs of practices not only in Parliament but also in other state bodies.
In the activity of foreign parliaments, traditions and customs, practicing for years, decades, and even centuries have very high prestige in the system of the
1 Milekhin A.V. Theory of State and law: textbook. - M., 2007.
2 Boshno S.V. Theory of State and Law: tutorial. - M., 2007. - P. 121.
3 The same.
4 Belkin A.A. Customs and habits in state law // Jurisprudence. - 1998. - № 1.
5 Sivkov A.L. Alternative sources of parliamentary procedure (custom, precedent, practice, interpretation of regulations) / /Representative power-21st century: legislation, commentary, problems. - 2003. - № 6.
6 The Provision on Commissions on Soviet traditions, holidays and rites of the Ukrainian SSR: Decree of the Presidium of the Supreme Council of the Ukrainian SSR dated September 1, 1978 // Vedomosti of the Supreme Council of the UkSSR. - 1978. - № 37. - P. 535.
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applicable standards, are its specificity1.
So in Great Britain, numerous parliamentary procedures, such as the formation of ad hoc committees, parliamentary requests to ministers, consultations among «whips» of the government and the opposition, procedures for conducting debates and making decisions, and many others are not recorded in writing, and shall be governed by ancient customs.
The range of unwritten rules that serve as a basis for the activities of the United States Congress is quite wide and well known. It is «rule of precedence» and «rule of courtesy of the Senate» and other equally famous customs and rules. And despite the fact, that there is a functioning written Constitution in the United States, customs and traditions occupy not the last place in the system of sources of parliamentary proceedings. They determine the general competence of the parliamentary committees and commissions, according to the custom, a representative in the United States Congress must be a resident of that electoral district, from which he runs, although written prescriptions on this account do not exist.
In France, as in most European countries, the main source of law is the existing Constitution. However, you can find a lot of examples when this or that activity in Parliament is regulated according to unwritten rules, traditions and customs. For example, an orator even from his own seat speaks standing, the chairman of the House does not participate in the vote, although it is not stipulated anywhere, the autumn-winter session is devoted to the review of the budget and the spring one is hearing the program of the government and a number of others. There are even permanent rules, following the example of the rules of the US Senate, with its own names and abided scrupulously by parliamentarians. For example, a rule of «three thirds», according to which one third of the time in speeches is intended for the government, another third - to the government majority and the last third for the opposition. With regard to the Regulations of the Parliament of France, for the most part it consists of the customs and traditions of the Chambers, prevailing historically for centuries.
Customs and traditions, which have become the rules of activities of the Bundestag of the Federal Republic of Germany (FRG) are numerous and diverse. There are examples of both the procedural rules (opportunity to publish in the records of Parliament undelivered speeches, the opportunity to place a replica from the seat, time for speech is determined by a prior agreement between the parliamentary majority, representatives of the government, and the opposition, etc.), and the rules of fundamental importance for the entire system of parliamentarianism in Germany. For example, although it is not established anywhere, that block of the parliamentary majority and the government dependent on it should act in bodies of the government on party or partisan basis, such a situation is valid everywhere.
It follows from the above that customs play an important role in the system
1 Essays on parliamentary law: foreign experience: /ed. B.N. Topornin. - M., 1993.
Irina Dzhimbinova. Parliamentary customs: theoretical basis and development prospects
of sources of parliamentary activity in many countries. In each country, they are individual, but there are examples when one and the same custom, one and the same rule, applies similarly in different countries. Thus, the procedure for the adoption of the law in three readings originates from the ancient customs of the British legislature. Custom to consider the Bill in three readings became part of parliamentary procedure in the British Parliament as early as the 16th century1.
The beginning of the systematic study and generalization of the parliamentary practices abroad was started in the 1960s by Henry Robert, who published an extensive handbook entitled «Rules of Parliamentary Procedure» (translated into the Russian language in 1992). This work is called a «code of parliamentary laws», «a model of parliamentary conduct», and its author is called the father of modern parliamentary procedure. As G.M. Robert wrote himself, «it is essential that every respectable public body acts on the basis of order, decency and uniformity»2. The peculiarity of «Robert's rules» is that they are suitable for any «Assembly», where the decisions are made, whether it is House of Parliament, club of voters, religious community. Procedures for the conduct of business at meetings are meticulously considered (from submitting proposals during their classification into main, side and preferred upto etiquette of debate and voting procedure), the right of assembly, their working bodies (committees, commissions), officers (chairman, secretary, treasurer) and etc. Many of them based on the English and American experience of parliamentarism, represent what might be called foundation of actually parliamentary culture.
It is interesting from the point of view of the study of parliamentary practices and the Senator Richard Baker's book «Traditions of the United States Senate», where the rules, traditions and customs of the United States Senate's daily activities, such as: the procedure of taking the oath by new senators, the staff of the Senate and rules of precedence, a custom of the first speech of newly appointed senators, the custom of wearing a certain clothing in the Senate building, and many other no less interesting traditions are described. The author of the book notes, that «the United States Senate is largely guided by the traditions and established practice»3.
Despite the fact that at present, the activity of the Russian State bodies, including representative ones, is regulated by laws and other normative acts, all questions arising in the course of exercising their powers impossible to foresee. I believe, that in this case it is necessary to address just to such ancient and wise source of the law as custom. Customs are developed for years, decades, and sometimes centuries. They have accumulated wealthy experience, knowledge and wisdom. That is why it is impossible to disparage this source of law. It should be noted, however, that the conclusion of R. David that «study of custom has
1 See: McDonald W. Daily life of the British Parliament/translated from English E.V. Kolodochkina. - M., 2007. - P. 210.
2 Robert Henry M. Rules of parliamentary procedure. - M., 1992. - P. 23.
3 Baker R.ATraditions of the United States Senate. - Washington D.C., 2007. (Translation of the original is provided with the participation of the author of the article).
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never been conducted properly»1, has not lost its relevance today.
The study of parliamentary customs, conducting a comparative-legal research of the existence and use of the parliamentary traditions in our country and abroad could render invaluable service in the formation and development of Russian parliamentarism, the improvement of the legislative and enforcement techniques and generally in the formation of the Russian State as a truly democratic and legal.
References
1. BakerR.A. Traditions of the United States Senate. - Washington D.C., 2007.
2. Belkin A.A. Customs and habits in state law // Jurisprudence. - 1998. - № 1.
3. Boshno S.V. Theory of State and Law: tutorial. - M., 2007.
4. David R. Major legal systems of today. - M., 1996.
5. Essays on parliamentary law: foreign experience: [papers]/ed. B.N. Topornin. - M.: Institute of State and law of the Russian Academy of Sciences, 1993.
6. Henry Robert M. Rules of parliamentary procedure. - M., 1992.
7. McDonald W. Daily life of the British Parliament/translated from English. E.V. Kolodochkina. - M., 2007.
8. Milekhin A. V. Theory of State and law: textbook. - M., 2007.
9. Regulations of the Federation Council of the Federal Assembly of the Russian Federation and the development of the Russian parliamentarism: history, modernity, and prospects. Materials of the Federation Council Commission on Regulations and organization of parliamentary activity.
10. Romanov R.M. Parliamentary Origins: from the legislatures of antiquity to our days. 2-th Edition, enlarged and revised. - M., 2006.
11. Sivkov A.L. Alternative sources of parliamentary procedure (custom, precedent, practice, interpretation of regulations) // Representative power-21st century: legislation, commentary, problems. - 2003. - № 6.
12. Soviet encyclopedic dictionary. - M., 1979.
13. The Council of the Federation. The first meeting. January 11-14, 1994. The transcript. - M., 1995.
14. Upper Chambers of parliaments of foreign countries: the experience of the organization and activity (informational-analytical materials). - M., 2002.
1 DavidR. Major legal systems of today. - M., 1996.
