Yonatan Tesfaye Fessha
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
A. The Origins of Bicameralism
1. Bicameralism, a system in which two assemblies share the task of legislative power, is one of the defining features of many countries. Parliaments in federal countries are frequently, if not usually, bicameral. But the origin of bicameralism can be traced to an era long before the arrival of federations. It is often linked to 14th century England and the organization of its parliament into the ‘divisions of Lords and Commons’. In the United States, home to modern bicameralism, parliaments with two houses were already established by a number of the states long before the creation of the first federation and the introduction of its bicameral federal legislature in the form of the Senate and the House of Representatives.
2. A survey of the existing bicameral legislatures reveals important variations in the composition and powers of second chambers. These variations have impact on the functioning of the bicameral parliament, in general, and the second chamber, in particular. Before we delve deeper into the composition and powers of second chambers, let us discuss the reasons for the establishment of second chambers.
B. Reasons for Bicameralism
3. Right from its inception, bicameralism was designed to provide for a separate representation of ordinary individuals and ‘distinguished’ members of society. In fact, the second chamber was largely defined as a house of wise men that can countervail the ‘imprudent judgments’ of a popular lower house. A parliament that provides for the voicing of both ‘prudent debate’ and the representation of ‘popular interests’ and hence, parliament that is characterized by balanced ‘political temperament’ was deemed necessary; inasmuch as ‘[a] popular assembly without a senate cannot be wise … [a] senate without a popular assembly will not be honest’ (James Harrington as quoted in Luther 10).
4. With time, the reasons for bicameralism have evolved. Today, countries establish a bicameral parliament for different reasons. One common reason for the establishment of a bicameral legislature is linked with the primary duty of a parliament, namely review of legislation. In this regard, bicameralism and second chambers are deemed important for their contribution to offer a second and sober review of legislation that is already considered by the lower house. It is believed that second chambers contribute to the legislative process by ‘imbu[ing] the deliberation process with new arguments and reasons, in the quest to find the best balance between rights and duties, freedom and equity’ (Luther 21). In this regard, bicameralism, it is believed, helps to enact ‘better legislation’.
5. In some jurisdictions, bicameralism is linked with the need to check the power of other elements in the governmental process in order to achieve a system of limited government. This mainly has been the argument advanced by James Madison in favour of bicameralism. In the Federalist Paper No 62, he stated,
double the security to the people by requiring the concurrence of two distinct bodies in schemes of usurpation, of perfidy, where the ambition or corruption of one would otherwise be sufficient (Hamilton, Jay and Madison 102).
6. In many countries, especially in federal and decentralized countries (decentralization), the primary role of bicameralism and second chambers, in particular, is ensuring the representation of subnational interests. Bicameralism has become accepted as the most obvious mechanism by which the constituent units can play a role in national institutions and thus be a key component of the arrangements for shared rule. While lower houses are deemed to represent citizens as individuals, second chambers are regarded as a forum for introducing the interests of the constituent units into the national political process (representation of component federal units in federal systems). This was one of the original reasons for the establishment of the oldest bicameral parliament, namely the Congress of the United States of America. The Senate is the house of parliament in which the states that came together to create the federation are represented although today the senate functions much like its lower house equivalent, the House of Representatives, acting as a ‘peoples’ House’ as opposed to a house that represents state interests. The role of the second chamber as facilitating the participation of subnational units in the national legislative process is clearly indicated in the German Basic Law. Art. 50 of the Basic Law states that ‘[t]he Lander shall participate through the Bundesrat in the legislation and administration of the Federation and in matters concerning the European Union’ (Art. 50, Basic Law of the Federal Republic of Germany: May 23, 1949 (as Amended to July 11, 2012)). Another more recent example is the National Council of Provinces (NCOP), the second chamber of the South African bicameral parliament (Art. 60, Constitution of the Republic of South Africa, 1996 (as Amended to February 1, 2013) (S Afr)). As the name of the institution itself suggests, this is the house of provinces. The Constitution, in Article 42(4), explicitly states that the NCOP ‘represents the provinces’.
7. The size of second chambers is generally smaller than lower houses. Perhaps the only country that boasts a second chamber that is larger than its lower house is Great Britain. Britain’s second chamber, the House of Lords, is the largest second chamber with 859 members at the moment. In fact, the only national legislature that is larger than the House of Lords is the National People’s Congress in China (Gold 2). In addition to size, second chambers often differ from lower chambers in their mode of composition. The rest of this section focuses on the nature of the composition of second chambers.
1. Modes of Composition
8. Members of the lower house are usually popularly elected. That is not, however, necessarily the case with the selection of members of second chambers. To be exact, in some systems, members of second chambers, or at least half of the members, are directly elected. This is the case, for example, in the US where members of the Senate, since 1914, are directly elected and, as confirmed by the Supreme Court in US Term Limits v Thornton, can run for the Senate without term limits. Similarly, in Nigeria, each state, with the exception of Abuja, the federal capital, is divided into three senatorial districts, with the inhabitants of each district directly electing a senator. The list of countries in which members of second chambers are directly elected by citizens of their respective subnational units includes Kenya, Brazil, Australia, Mexico and Argentina.
9. In many cases, second chambers are composed using indirect election (elections). In some of these countries, members of second chambers are chosen by subnational legislatures or by special procedures established by them. Countries in which members of the second chambers are elected by subnational legislatures include, among others, Austria and India. Germany uses a slightly different method of selecting members. The Bundesrat, the second chamber in Germany, consists of members of the Land governments, which are appointed by the governments of the Lander (government of component federal units). Art. 51(1) of the Basic Law provides that ‘[t]he Bundesrat shall consist of members of the Land governments, which appoints and recalls them’ (Art 51, Basic Law of the Federal Republic of Germany: May 23, 1949). Members of the Bundesrat serve at the wishes of the state government that appoints and recalls them. It is this German model of second chambers that inspired the design of the NCOP in South Africa, which is, however, composed slightly differently. In the NCOP, each province is represented by a single delegation that is composed of 10 delegates, headed by the premier of the province or a person nominated by the premier and drawn from members of the provincial legislature and the executive (Art. 60, Constitution of the Republic of South Africa, 1996 (S Afr)).
10. Although members of second chambers might be elected indirectly by subnational legislatures, this does not always mean that members are residents of the subnational unit they represent. In fact, this was a controversial issue in India that adopted a legislative amendment that dispensed with the domicile requirement, according to which a member of the Rajya Sabha was required to be resident of the state from which he or she is elected. The amendment that scrapped the domicile requirement for membership into the Rajya Sabha was challenged before the Supreme Court. Doing away with the domicile requirement, it was argued, is contrary to the constitutional scheme and the basic principle that forms the foundation of the Rajya Sabha. The Supreme Court rejected the argument and ruled in favour of the amendment dispensing with the domicile requirement. For the Court,
residence or domicile are not the essential ingredients of the structure and composition of the upper house, and residence is neither a constant factor nor a constitutional requirement but a matter of qualification prescribed by Parliament in exercise of its power under Art. 84 and so the question of violation of basic structure does not arise.
11. The federal nature of the state is not affected, the Court held, ‘as long as the state has a right to be represented in the council of states by its chosen representatives’ (Kuldip Nayar v Union of India and Others (2006) (India) Writ Petition (Civil) 217 of 2004).
12. In a number of other countries, the selection system is a mixed one, with some members being directly elected by subnational electorate while others are appointed or co-opted by subnational legislatures. In Belgium, forty senators are elected directly with provision for linguistic balance between Flemish and French speakers; additional 21 members are elected from the three linguistic community councils (ie The Flemish, French and German) and the Parliament of the Brussels-Capital Region while 10 more are co-opted by the other senators (Art. 67, Coordinated Constitution of the Kingdom of Belgium: February 17, 1994 (As Amended to February 21, 2002) (Belg); Keating 120). In Russia, the Federation Council is composed of two representatives from each of the federated units, with one being appointed by the regional governor while the other is elected by the regional legislature (Art. 95(2), Constitution of the Russian Federation: December 12, 1993 (Russ)). Another country with mixed chamber is Spain. In that country, the majority of senators are elected from the provinces (Section 69, Constitution of the Kingdom of Spain: December 6, 1978 (as Amended to September 27, 2011) (Spain); Guibernau 248). Each province appoints four senators while each autonomous community appoints only one senator, with an additional senator for every one million inhabitants in the territory. To be specific, 208 members are directly elected from the provinces while 51 are ‘appointed by the parliaments of the Autonomous Communities’. A number of other countries use appointment to compose their members. A prime example is Canada, where members of the Senate are nominated by the prime minister and appointed by the Governor General, providing the federal government exclusive power over the appointment of senators (Art. 24, Constitution of Canada (Can): 1867 (as Amended September 2008)). About 63% of members of the second chamber in Malaysia are also appointed by the national government (Art. 45, Constitution of Malaysia: August 31, 1957 (as Amended to December 27, 2007) (Malay); Watts 148). There are also those countries that predominantly compose their respective second chambers in ways other than appointment but still include a small number of appointees. Examples include India, where 12 out of the 245 members are appointed by the national government ‘for their contribution to literature, science, art and social service’ while the rest are appointed by state legislatures (Section 80(3), Constitution of the Republic of India: January 26, 1950 (as Amended to May 28, 2015) (India); Dhavan and Saxena 173). The same is true in Ireland and Italy, where eleven out of 60 and five out of 315 are appointees respectively (Art. 18, Constitution of Ireland: December 29, 1937 (as Amended to October 4, 2013) (Ir); Art. 59, Constitution of the Italian Republic: December 22, 1947 (as Amended to April 20, 2012) (It).
13. In Switzerland and Ethiopia, the manner in which the second chamber is composed is a decision left to the subnational units. In Switzerland, Cantons decide the way in which their representatives at the Council of states are designated (Art. 150(3), Federal Constitution of the Swiss Confederation: April 18, 1999 (as Amended to March 15, 2012) (Switz)). Most have chosen to use direct election to choose their representatives. In the case of Ethiopia, members of the House of Federation, the second chamber, can be selected either using direct election or by election held by the subnational legislatures (Art. 61(3), Constitution of the Federal Democratic Republic of Ethiopia: August 21, 1995 (Eth)). To date, members of the House of Federation are appointed by their respective subnational legislatures (Fessha 71).
14. Lesotho is perhaps the only country in which heredity forms the primary basis for the composition of its second chambers. In Great Britain, the other country in which heredity used to form the primary basis for the composition of a second chamber, only 92 hereditary peers (from 810) are presently allowed to remain in the House of Lords. In some countries, seats are reserved for certain individuals. Automatic membership accounts for the presence of former presidents in the second chambers of Italy, Chile, Kazakhstan, Uruguay and Venezuela.
15. From the foregoing, it is evident that countries use different methods to compose second chambers. These methods have implications for the extent to which second chambers can be used to advance subnational interests. The effect of the selection system to second chambers becomes more apparent when one looks at countries in which members of the second chambers are central government appointees. In Canada, for example, the Senate was originally intended to represent the interests of the provinces. As a result of the process by which members are appointed, however, the Senate has conspicuously failed to achieve this role. With senators that, once appointed by the federal government, are entitled to hold offices until the age of 75, the latter is in a position to pack the chamber with its sympathizers. The provincial composition of the Senate is thus nominal. The process of nomination by the federal government has precluded the Senate from being an ‘effective voice of regional or provincial interests’ (Hogg 251). Attempts to change the basis for the composition of the Senate have not been successful. In 2014, the Supreme Court of Canada, in Reference re Senate Reform, rejected proposals that, among other things, sought to introduce a process of consultative elections for the nomination of Senators on the ground that this cannot be done by a unilateral federal amending procedure but requires the consent of seven provinces representing more than 50% of the population (Reference re Senate Reform (2014) SCC 32). Such amendment, according to the Court, would change Canada’s ‘Constitution’s architecture, by endowing Senators with a popular mandate which is inconsistent with the Senate’s fundamental nature and role as a complementary legislative chamber of sober second thought’. As a result, the second chamber in Canada remains a house that is composed of central government appointees. Obviously, a second chamber that is largely composed of central government appointees cannot be expected to exercise its powers for the constituent units.
16. Representation systems in which subnational units play an important role in the appointment of members of the second chamber, in contrast to those in which members are directly elected, generally provide a better opportunity for voicing subnational preferences and protecting subnational interests. There is, of course, no guarantee that members of such second chambers will usually vote along constituent government lines as voting along political-party lines is usually common. The fact that the power to appoint representatives to second chambers resides with the constituent units themselves does, nevertheless, put members in a better position to defend and advance subnational interests. In cases like South Africa, this is further facilitated by the fact that each provincial delegation, when dealing with bills that affect provinces, has just one vote that must be casted based on the instructions of the provincial legislature.
17. South Africa’s model of voting was inspired by the system in Germany where the constitution establishes a strong link between members of the second chambers and the Lander governments by requiring members to vote as a bloc on the instruction of each state cabinet (Art. 51, Basic Law of the Federal Republic of Germany: May 23, 1949)). The members are, in effect, delegates of Lander governments that cast their vote based on the instruction of the latter (Oeter 144). Each Land, although represented by no less than three representatives, has one vote that must be cast based on the unanimous decision of the representatives (Art 51.3(2), Basic Law of the Federal Republic of Germany: May 23, 1949). There is, however, no guarantee that this will always happen. Representatives of a Land government may not agree on a bill or follow the instructions of the Lander government. According to the German Constitutional Court, there is no hierarchy among the representatives of Lander. The representatives are deemed equal and each representative, legally speaking, ‘is entirely free to choose how to vote’. This is irrespective of a directive that may be issued by the Land government or the Prime Minister of the Land and the fact that a representative vote in violation of a Land’s instruction does not affect the validity of the vote.
Any legal obligation to vote in a certain way derives from the constitutional sphere of the Land while the powers to act as a representative of the Land in the federal sphere derives from the federal constitution and is entirely independent of any external preconditions (Becker 98).
18. According to the Constitutional Court, in the event that representatives of a Land do not agree on voting ‘yes’ or ‘no’ to a bill, the votes of that Land are rendered invalid (2 BvF 1/02 (2002) (Ger)). This, of course, leaves open the central question of whether second chambers, in such a system, are composed of subnational governments or representatives of subnational governments.
2. Equal or Weighted Representation?
19. Another important issue related to the composition of second chambers is whether the constituent units should be represented equally. In most countries, representation in the lower house is based on population size. None of the second chambers is composed purely based on population size. In fact, an important issue related to the composition of second chambers is whether the constituent units should be represented equally. In Australia, the states are equally represented by 12 representatives in the Senate irrespective of population size (Representation Act 1983; Stone 538). The same is true in the United States and South Africa, where the constituent units are represented equally by 2 and 10 delegates respectively (Amendment XVII of the Constitution of the United States of America (US); Section 60(1) Constitution of the Republic of South Africa, 1996 (S Afr)). In Nigeria, each state is represented by three members in Nigeria’s Senate, with the exception of Abuja, the federal capital territory, which has one senator only (Art. 48, Constitution of the Federal Republic of Nigeria, 1999 (as Amended to November 29, 2010) (Nigeria); Ayua and Dakas 240). Argentina, Australia, and Russia are the other countries that provide for equal representation. A contentious issue in countries where the constituent units are represented equally is how the voting constituencies are demarcated. In Gray v Sanders, the US Supreme Court stroke down a voting system in Georgia that treated small rural districts relatively the same as larger urban districts. The Court ruled that this is in violation of the equality clause that includes the principle of ‘one person, one vote’.
20. Other countries have rejected the equality principle and adopted a weighted representation that takes population size into account. However, the representation is, often, not based on population alone as many countries adjust the representation of the constituent units. The degree of weighting varies from one country to another. Generally speaking, however, this system of representation tends to generally favour less populous sub-national units. At one end is Switzerland where the second chamber, the Council of the States, is composed of two members from each full canton and one member each from the so-called half-cantons (Linder and Steffen 290). At the other extreme is India where the weighting is determined in proportion to the population size of the respective states, with one representative per two million people (Dhavan and Saxena 170). The largest state has 31 members while the smallest states have one member each. Belgium and Canada similarly follow a weighted representation that fall between these two extremes. Germany’s Bundesrat is composed based on population size of the Lander. A minimum of three votes is assigned to each Land. ‘Lander with more than two million inhabitants shall have four, Lander with more than six million inhabitants five, and Lander with more than seven million inhabitants six votes’ (Art. 51, Basic Law of the Federal Republic of Germany: May 23, 1949) (Ger)). Although a weighted representation, as indicated above, favours smaller constituent units, larger states, it must be noted, still end up with more seats.
3. What Is Represented
21. Equally important is the issue of what is represented. As it can be gathered from the discussion above, the common trend is that second chambers are organized as representatives of subnational units. This is particularly the case in federations. There are, however, few outliers. One federation that departs from the common trend is Ethiopia, where the House of Federation, the second chambers, is composed of representatives of ethnic groups (Fessha 70). The same is, to some extent, true with Spain. In that country, representation in the second chamber is largely based on provinces and not autonomous communities, which are ‘the true representatives’ of subnational interests in Spain. As Tierney (Tierney 221) notes, ‘this heavy bias in favour of the provinces belies political reality given that the autonomous communities are the far more important tier of government’. With only a few of the senators being elected from the autonomous communities, it is difficult to consider the Senate as an organ that represents subnational interests.
22. The foregoing suggests that any examination of the effectiveness of second chambers in representing subnational interests should look into the system of composition. The selection method goes to the heart of determining whether the second chamber exercises power for, or against, the constituent units. In cases where the decision to appoint members is left to the national government, the representation of the constituent units have been nominal. But it is also equally important to go beyond the system of composition and look into what is represented.
D. The Role and Powers of Second Chamber
23. In addition to the appointment system, the effectiveness of a bicameral parliament depends on the specific powers allocated to the two houses of parliament by the constitution. In most jurisdictions, the popularly elected lower house enjoys more power than the second chamber. In some countries, second chambers have co-equal powers with the lower houses, exhibiting some form of ‘egalitarian bicameralism’. It is perhaps only in the USA and Bosnia and Herzegovina that second chambers enjoy more power than the lower house.
1. Legislative Process
24. In a number of countries, the legislative role of second chambers is very limited. In Ethiopia, for example, the second chamber does not participate in most of the legislation passed by the federal government (Fessha 17). As a result, it plays little or no role in safeguarding the jurisdictions of the states. This has not only made the autonomy of states vulnerable to the interferences of the national government, but it has also denied the federation an opportunity to use the second chamber as the vehicle for the co-management of the society. Spain’s bicameralism is another example where the lower house enjoys more prominence than the second chamber, the Senado. A majority vote in the lower house is sufficient to override the legislative actions of the Senado (Section 74(2), Constitution of the Kingdom of Spain: December 6, 1978 (as Amended to September 27, 2011) (Spain); Andreu 891). The same is true in France, where the National Assembly, the lower house, has the final say on the legislative process.
25. In Belgium, the predominant role of carrying out the legislative function is reserved to the lower house, the Chamber of representatives (Peeters 204–5). Unlike the Spanish and French second chambers, the Belgian Senate is, however, in a better position to protect subnational interests as it has co-equal power with the lower house in respect to certain matters listed in the Constitution. For example, a special majority provision regarding laws pertaining to cultural and regional matters is specified in the Constitution and requires that such laws get two-thirds overall majority of the Senate before they become a law. Moreover, if three-quarters of the members of one of the Senate’s linguistic groups consider that a decision in a legislative matter, not covered by the special majority provision, could be harmful to their community, an additional mechanism—the so-called Alarm Bell Procedure—providing parliamentary exceptional procedure comes into effect (Art. 54, Coordinated Constitution of the Kingdom of Belgium: February 17, 1994 (As Amended to January 31, 2014) (Belg). In addition, the Senate in Belgium enjoys powers over constitutional matters, international relations, the organization of the courts and relations among the federal government and the regions and communities (Art. 77, Coordinated Constitution of the Kingdom of Belgium: February 17, 1994 (As Amended to January 31, 2014) (Belgium [be]). This shows that the Senate in Belgium, by and large, is in a better position to represent the interests of the constituent units.
26. A second chamber that, constitutionally speaking, is clearly in a much better position to advance and protect subnational interests is the second chamber in South Africa, the NCOP (Section 75-78, Constitution of the Republic of South Africa, 1996 (S Afr)). The role of the NCOP is stronger in respect of bills that affect provinces. If the NCOP rejects the bill or if the National Assembly, the lower house, refuses to pass the bill as amended by the NCOP, the bill or the amended bill, as the case may be, must be referred to the Mediation Committee, which consists of nine members each from the National Assembly and the NCOP. In the event that the Mediation Committee fails to come up with a bill acceptable by both houses, the National Assembly can pass the bill, either as originally passed by it or as amended by the Mediation Committee, but only if it can secure the vote of at least two-thirds of its members. A rejection of bills that do not affect provinces by the NCOP only results in the reconsideration of the bill by the National Assembly. As Murray (Murray 266) put it, this limits the role of the council to ‘an arena of second sober thought’. In short, in the NCOP, the provinces play an important role in approving or rejecting bills that affect provinces, while they also play a delaying function in the passing of bills that do not necessarily affect the provinces.
27. The institutional design that gives the second chamber of South Africa greater powers over legislation affecting provinces is, in fact, modelled after the Bundesrat of Germany (Art. 77 of the Basic Law (Ger) Basic Law of the Federal Republic of Germany: May 23, 1949 (as Amended to July 11, 2012)). With respect to ordinary federal legislation that do not affect the legislative and administrative responsibilities of the Lander, the Bundesrat only enjoys suspensive veto as its objections can be overridden by the absolute majority of the Bundestag, the lower house. The Bundesrat, however, enjoys absolute veto power over federal legislation affecting Lander legislative and administrative responsibilities. This makes the Bundesrat, in so far as legislation affecting the Lander is concerned, a powerful house. The Bundesrat is in better position to ensure the effective and meaningful participation of the Lander in the national law-making process. It also means a possible legislation deadlock. A joint mediation committee, consisting of ‘an equal number of 16 members of both political blocs, together with prominent Land Leaders’, is used to reach ‘a compromise bill’ that can be accepted by both houses (Le Roy and Saunders). Similarly, the second chamber in Austria also enjoys stronger powers with regard to laws affecting the power of the Lander.
28. Yet, quite a number of second chambers have the same power as the lower houses. One such second chamber is the Senate in Canada, where the lower house may not override the Senate’s vote except in the case of constitutional amendment, where it exercises only a suspensive veto (Pinard 493). The capacity of the Senate to vigorously protect subnational interests is, however, greatly constrained by the fact that the provincial composition of the Senate is, as described earlier, nominal. Perhaps, one of the strongest second chamber that has co-equal legislative powers with the lower house is the Italian Senato della Repubblica. The lower house, the Chamber of Deputies, as it is known in Italy, and the Senate have equal legislative powers (Cavatorto 1). A legislative bill must be endorsed by both houses to be passed as a law. That is why the legislative process in Italy is characterized by ‘the never-ending navette, the shuttling of a legislative bill from one chamber to the other until it receives the approval of both chambers’ (Maneti 833; Section 64, the Constitution of the Italian Republic: December 22, 1947 (as Amended to April 20, 2012) (It)). A proposal to reduce the power of the Senate was rejected in a senate reform referendum that was held in December 2016. The Italian parliament, as a result, continues to belong to the group of parliaments that can be described as a ‘perfect bicameralism’. Others in the group include the parliaments of the United States and Australia. The Australian senate enjoys absolute veto over all proposed legislation. The only exception is that it cannot initiate or amend money bills although it can reject them (Section 83, Commonwealth of Australia Constitution Act, July 9, 1901 (as Amended to October 31, 1986) (Austl); Stone 556). The failure to resolve deadlocks have serious consequences as it can entail the dissolution of both houses that must be followed by an election ‘and a joint sitting of the members of both houses if the deadlock persists’.
29. Another two second chambers that have equal legislative powers with their corresponding lower chambers are the Rajya Sabha of India (Art. 75, Constitution of the Republic of India: January 26, 1950 (as Amended to May 28, 2015) (India)) and the Council of States of Switzerland (Art. 156, Federal Constitution of the Swiss Confederation: April 18, 1999 (as Amended to March 15, 2012) (Switz)). In both cases, with the exception of money bills, the passing of most legislation requires the approval of both houses (Biaggini and Sarott 757; Dhavan and Saxena 174). The lower chambers cannot simply override objections made by the second chambers. In the case of India, deadlock is resolved by a joint sitting of both houses (Section 108 of the Constitution of India (India)). This is not, however, a mechanism that is used frequently as the deadlocks are often resolved through negotiations among political parties (Dhavan and Saxena 169). The deadlock may also be resolved by using a joint committee (in which the lower house has a majority) ‘to resolve differences’. This is also the case in Switzerland, where a joint committee of the two chambers is used to resolve deadlocks (Watts (2008) 5). If that doesn’t work, the bill has to be abandoned.
30. From the foregoing, it is clear that the involvement of second chambers in legislative process varies both in terms of the types of legislation they are involved as well as the level of influence or power each house of parliament enjoys. In most jurisdictions, one house of parliament, often the lower house, is allowed to easily prevail over the other. In some countries, this is with respect to all legislation. In such cases, second chambers are confined to facilitating dialogue with the lower house and enjoy limited legislative powers. Their role is limited to being chambers of reflection. In other cases, legislative gridlocks might be common because of the fact that the two houses of parliament are not allowed to easily override each other. In some cases, this is true only with respect to some legislation, as is the case in Germany, South Africa, and Austria, where only laws affecting subnational interests might have to be sent to a mediation committee if they do not secure the consent of both houses. This puts the second chamber in a firm position to defend and advance the interests of subnational units. In other cases, although it is rare, one house of parliament cannot override another unit with respect to all legislation. In other words, both chambers have equal legislative powers. This is largely the case in Italy, USA, Switzerland and India. The fact that the second chambers enjoys similar powers to those of the lower chamber has compounded the legislative gridlock. It, however, has given the second chambers in those countries a strong role in the legislative process.
2. Other Functions
31. Although the primary role of second chambers is to participate in the legislative process and represent subnational interests, there are also countries in which second chambers perform non-legislative functions. Many exercise ‘veto powers over national executive action’ and play an important role in confirming federal appointments. Others engage in the ratification of multilateral treaties. In federal states, second chambers play an additional important role of authorizing and ending federal intervention in a subnational unit. The following paragraphs briefly provide a comparative survey of the non-legislative functions of second chambers.
(a) Second Chambers and Ratification of International Treaties
32. In many countries, parliaments participate in foreign affairs. This particularly manifests itself in the role they play in the ratification of international treaties (treaty power). Usually, parliament must grant its approval before an international treaty binds a state. In countries with bicameral parliament, the respective influence of lower chambers and second chambers on the ratification of international treaties varies from one country to another.
33. In a number of bicameral parliaments, the second chambers play little or no role in foreign affairs. In these countries, Ireland being a good example, the ratification international treaty is the sole responsibility of the lower house (Art. 29(5), Constitution of Ireland, 1937 (as Amended to October 4, 2013) (Ir)). In some other countries, both chambers are involved in the ratification of international treaties but the last word is often left to the lower chamber. This is the case in Spain, where both the Senate and Congress are involved in the ratification of most international treaties, especially those of a military, political, human rights nature as well as those implying financial liabilities for the Treasury (Section 94, Constitution of the Kingdom of Spain: December 6, 1978 (as Amended to September 27, 2011) (Spain)). If a treaty does not secure the approval of both chambers, a Mixed Committee, comprising of members from both chambers, must be created to come up with a compromise that is acceptable by both chambers (Andreu 891). In the event that the committee fails to resolve the difference, the Congress’s decision prevails. In Russia, international treaties that are ratified by the State Duma, the lower house, must be considered by the Federal Council (Art. 106, Constitution of the Russian Federation: December 12, 1993 (as Amended to July 21, 2014) (Russ)).
34. In some countries, second chambers actually wield stronger powers with respect to particular international treaties. The Bundesrat of Germany enjoys stronger powers with respect to international treaties that touch on matters that fall under the competence of the Lander (Art. 59 of the Basic Law (Ger) Basic Law of the Federal Republic of Germany: May 23, 1949 (as Amended to July 11, 2012)). To be exact, the ratification of international treaties does not always require the consent of the Bundesrat. If the content of the international treaty is, however, similar to a content of a domestic law that would have required the approval of the Bundesrat to become a law, then that international treaty must also be endorsed by the Bundesrat. With respect to other international treaties, the Bundesrat enjoys a delaying role as its objections can be overridden by the Bundestag. The same is true in Austria, where the lower house can outvote the second chamber in the ratification of international treaties except with respect to treaties that affect matters that fall under the exclusive competence of the Lander (Art. 10, Federal Constitutional Law of the Republic of Austria, 1920 (as Amended to July 25, 2012) (Austria)); Gamper 79). International treaties that affect the competences of the Lander must be approved by the Federal Council, the second chamber. In France, the approval of both the National Assembly and the Senate is required with respect to peace and trade treaties as well as those treaties that have the effect of changing the state borders before they become binding on the state (Art. 53, Constitution of France: 4 October 1958 (as Amended to July 23, 2008) (Fr)). The same is true if the executive enters into treaties that introduce financial burden on the budget, an amendment of legislation or treaties connected to an international organization (Art. 54, Constitution of France).
35. There are, however, second chambers that play equal role with their lower house equivalents in the ratification of all international treaties that need parliamentary approval. In South Africa, treaties that are negotiated and signed by the executive need approval from both houses of parliament before they bind the Republic (Section 231 Constitution of the Republic of South Africa, 1996 (as Amended to February 1, 2013) (S Afr)); Mosala 3). The National Assembly cannot override the NCOP. The same is true in Italy and Belgium. The ratification of most international treaties require the approval of both the senates and the chambers of deputies of both countries (Art. 80, Constitution of the Italian Republic: December 22, 1947 (as Amended to April 20, 2012) (It); Eschbach 19). Similarly, the two houses of the Swiss Parliament are on equal level when it comes to the ratification of most international treaties (Biaggini and Sarott 761). Some treaties may not, however, require the approval of parliament at all.
36. At least, one second chamber plays a superior role in the ratification of international treaties, namely the Senate of USA. International treaties that are negotiated by the executive must only be approved by the Senate by a two-thirds majority before they become binding on the state (Watts (2008) 154). The House of Representatives, the lower house, does not vote on the approval of international treaties. This, of course, does not mean that it does not influence the enforcement of international treaties as it may refuse to vote for the appropriation of necessary funds if the treaty requires expenditure of funds.
(b) Second Chambers and Budgetary Matters
37. In bicameral parliaments, second chambers often have fewer financial powers than their lower house equivalents (public finance). This is evident in the fact that a budget often has to be presented first in the lower chamber. It is also evident in the fact that many lower chambers can easily outvote their lower house equivalents when it comes to budgetary matters.
38. To begin with, some of the second chambers have no budgetary responsibilities. This is the case, for example, with the Austrian Bundesrat (Art. 42, Federal Constitution of Austria). The Bundesrat cannot object or veto bills that relate to the federal budget. In a number of other countries, second chambers play a role in the approval of financial matters but they can easily be outvoted by lower chambers. In South Africa, the superior role of the lower house is evident from the fact that money bills (i.e. bills that allocate money for a particular purpose, impose taxes, levies or duties), must be introduced in the National Assembly (Section 77, Constitution of the Republic of South Africa, 1996 (S Afr))). Moreover, any objection from the NCOP can be overridden by absolute majority of the Assembly. The Russian Federal Council is also involved in the approval of the federal budget. Once the budget is approved by the State Duma, it must be ‘reviewed’ by the Federation Council (Art. 106, Constitution of the Russian Federation: December 12, 1993 (Russ)).
39. As mentioned earlier, there are second chambers that have equal power with the lower chambers. This includes financial matters. One such second chamber is the Senate of the United States. The Senate is as involved as the House of Representatives in determining the national budget (Art. I of the Constitution of the United States of America: September 17, 1787 (as Amended to May 7, 1992) (US)). The appropriations committees of both the House of Representatives and the Senate are responsible for determining the appropriate levels of allowed expenditure. The houses vote on appropriation bills separately. Any differences between the appropriations bills are reconciled through negotiations. Only then is the President able to sign the appropriations bills into law, marking the end of the budgetary process. As mentioned earlier, the Italian Senate have exactly the same powers as the Chamber of Deputies. As a result, a bill dealing with financial matter must be approved by both houses in in identical form before it comes into effect (Art. 81, Constitution of the Italian Republic: December 22, 1947 (as Amended to April 20, 2012) (It)). The Council of States in Switzerland also enjoys the same power as its lower house equivalent, the National Council, in budgetary matters (Art. 85(10) and Art. 89(1), Federal Constitution of the Swiss Confederation: April 18, 1999 (as Amended to March 15, 2012) (Switz).
(c) Oversight of the Executive
40. In bicameral parliaments, lower chambers in many countries tend to play a predominant role in exercising oversight over the executive. The right to pass a vote of confidence on government, with few exception, as we will see, is also the preserve of lower chambers. Yet, most second chambers have a wide ranging powers in controlling the government’s actions.
41. The Senate in the US plays an important role in monitoring the activities of the federal government (Art. I and Art. XI of the Constitution of the United States of America (US)). Also known as Senate Congressional oversight, Senate oversight of the executive includes, among other issues, the review, monitoring, and supervision of federal agencies, programs, activities, and policy implementation. Senate Congressional oversight is largely achieved through the committee system (Itameri, Putrich and Jerome 2). The Senate uses different mechanisms to check on executive excesses, including appropriations, authorization; reviews; investigations, specialized investigations by select committees; legislative hearings by standing committees; studies by support bodies and staff. Since the Supreme Court’s ruling on Reed v County Commissioners of Delaware County (US), a special committee of the Senate has also the power to investigate senate elections.
42. As in the US, the NCOP in South Africa also has oversight over the national executive authority. Although the predominant role of holding the executive accountable, including its removal by a vote of confidence, is left to the National Assembly, the NCOP can call the executive to account by requiring ministers and their provincial equivalents to attend to its hearing and subjecting them to ‘pertinent questions’ about activities under their portfolios (Sections 55(2) and 69(a), Constitution of the Republic of South Africa, 1996 (S Afr)). Similarly, in Spain, Senate exercises political oversight over the executive in the same way as the Congress. It does this through summons to appear before it, request for information, committees of Enquiry, interpellations and questions (Sections 109-111 and 76, Constitution of the Kingdom of Spain: December 6, 1978 (as Amended to September 27, 2011) (Spain)). The same is true in Russia, where the Federal Council monitors the activities of the federal government by, among other things, requesting government officials to appear before its hearing and account for the activities of their respective responsibilities. Like their South African counterparts, the oversight function of the second chambers of both Spain and Russia does not extend to expressing vote of confidence on the government (Avakian 924).
43. Italy perhaps is one of the only few countries in which the second chamber has strongest powers with respect to supervising the government’s actions. The Italian Senate has the power to dismiss government. The government has to resign if the Chamber of Deputies or the Senate refuses to give it a vote of confidence (Art. 94, Constitution of the Italian Republic: December 22, 1947 (as Amended to April 20, 2012) (It)). In addition, like many other second chambers, the Senate’s role as supervisor of government’s action includes monitoring the activities of government, often through bicameral committees, in the form of ‘inquiries, questions and proposals’ (Manetti 833).
(d) Appointment of Senior Staff
44. Another function that second chambers perform is to participate in key national appointments. The responsibility to populate top position in the executive and the judiciary as well as in key organs of the state primarily rests with heads of governments and lower chambers of parliaments. Yet, many constitutions provide for the involvement of second chambers either in the nomination or confirmation phase of important national appointments. One such constitution is that of the United States. The US Senate plays an important role in the confirmation of certain federal appointments (Art. II of the Constitution of the United States of America). More famously, the Senate has the power to review Cabinet and Supreme Court nominations. It does this by conducting congressional hearings on the president’s nominees (Watts (2008) 154). The consent of the Senate is a requirement for the appointments to come into effect (Dinan 326).
45. The Bundesrat of Germany participates in the election of judges of the Constitutional Court. Half of the judges are elected by the Bundesrat while the other half are elected by the Bundestag (Art. 94 of the Basic Law (Ger) Basic Law of the Federal Republic of Germany: May 23, 1949 (as Amended to July 11, 2012)). The Bundesrat can also make proposals with respect to other appointments. Proposals requesting the President to appoint individuals to the position of Chief Federal Prosecutor, ‘for attorneys in the federal Supreme Court and for Deutsche Bundesbank Board Members’ must receive the consent of the Bundesrat. Like their Germany equivalent, the Austrian Bundesrat can recommend the appointment of judges of the Constitutional Court (Art. 86, Federal Constitution of Austria, 1920 (as Amended to July 25, 2012) (Austria)). Unlike its counterparts in the US, this is, however, the limit of the involvement of the Austrian Bundesrat in so far as federal appointments are concerned. It does not participate in the appointment or election of other judges, let alone members of the federal government or any other appointment involving important federal institutions (Gamper 806).
46. Many other second chambers are also involved in the appointment of members of courts or of judicial service commission. The Spanish Senate has the power to nominate 4 out of the 12 judges that make up the constitutional court and 10 members of the General Council of Judicial Power (Section 159, Constitution of the Kingdom of Spain: December 6, 1978 (as Amended to September 27, 2011) (Spain)). The Senate has equal powers with the lower house when it comes to the election of the judges of the auditing court (Section 76, Constitution of the Kingdom of Spain: December 6, 1978 (as Amended to September 27, 2011) (Spain)). In Russia, the Federation Council similarly appoints judges of the Constitutional Court, the chairmen and deputy chairmen as well as judges of the Supreme Court and the Supreme Court Arbitration Court (Art. 102, Constitution of the Russian Federation: December 12, 1993 (as Amended to July 21, 2014) (Russ)). The Federation Council is also involved in the appointment of judges of other courts, including the Cassation Board of the Supreme Court and the Commercial Court. The appointment of the Prosecutor General is also a power left to the Federation Council. It must be noted, however, that the President of the Russian Federation is the one that nominates candidates for the appointments made by the Federation Council, and usually no more nomination than required for the position, thus, limiting the power of appointment enjoyed by the Federation Council. Other countries in which second chambers are involved in the appointment of judges includes Switzerland, where the Council of States, in joint session with the National Council, appoints some judges, including judges for the federal criminal court and federal administrative court (Art. 107, Federal Constitution of the Swiss Confederation: April 18, 1999 (as Amended to March 15, 2012) (Switz)).
47. Many second chambers play little or no role in the confirmation of appointments. In South Africa, it is only the National Assembly that is involved in the confirmation of important appointments, including judges and commissioners of the different institutions established by the Constitution to safeguard democracy, including the Judicial Service Commission, the Independent Electoral Commission and the Public Protector, among others. The NCOP is not involved in the appointment process at all.
E. Concluding Remarks
48. The effectiveness of bicameral chambers depends on the appointment system and the specific powers allocated to the two chambers by the constitution. A basic question with regard to the composition of the second chamber pertains to the debate about who should be represented in second chamber. An equally important issue in the composition of second chambers pertains to the selection system and especially it relates to the question of how members are selected to the second chamber. In addition, the effectiveness of bicameral legislatures is the function of the power entrusted to the two houses by the constitution.
49. One must, however, note that the effectiveness of a bicameral arrangement does not depend on institutional design alone. The impact of the institutional design of a bicameral legislature is mediated by other factors. As mentioned earlier, the institutional design of the South African second chamber, the NCOP, which is modelled after the German Bundesrat, makes it a truly provincial body with members appointed by provincial legislatures. In practice, the NCOP has not been that successful in relation to its ability to influence the passing of national bills, which is one of its primary functions. Since the establishment of the NCOP, only a handful of amendments have been proposed by provincial legislatures to cater for provincial interests. The legislative contributions of the NCOP have been very limited. This is partly attributed to the dominance of the ANC in both houses of the Parliament and in almost all provinces. The fact that the two houses do not differ from each other in partisan composition has limited the capacity of the NCOP to influence national bills. The dominance of the ANC also means that most important decisions are decided through party structures and executive intergovernmental structures. Long before bills are tabled for consideration before the NCOP, provincial concerns have already been communicated by the relevant provincial officials in the different intergovernmental structures. Given this political context, it is difficult, if not impossible, for the NCOP to fulfil the potential its institutional design promises.
50. The experience of South Africa suggests that institutional design alone may not deliver the desired result. The political context within which a bicameral parliament operates goes a long way in determining whether a second chamber emerges as an effective ‘arena of second sober thought’ and positions itself as a house that works for or against subnational interests.
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