Forum of the World's Senates
BICAMERALISM AROUND THE WORLD:
POSITION AND PROSPECTS
* * *
The decision to bring together the Presidents of all the Senates and Second Chambers of the world1(*) for the first time in the spring of this millennium year was not merely the reflect of a desire to celebrate a symbolic date with appropriate solemnity. In fact, it ibecame inevitable given the significant resurgence in bicameralism amongst contemporary Parliaments.
This observation stems from a number of objective and simple facts: while some 45 countries had a two-chamber legislature in the early 1970s, today, this number has risen to 67. Moreover, more than a dozen nations are either considering the creation of a Senate2(*) or have already taken such a decision and are in the process of establishing an upper house.3(*)
Far from being an "anomaly", bicameralism is now the parliamentary system under which a broad majority of the world's populations live. It is also the system adopted by the world's wealthiest nations: of the fifteen countries with the highest gross domestic product, only two - the People's Republic of China4(*) and South Korea - have a monocameral Parliament.
Given the fact that, in the 1970s, bicameralism appeared to be in decline, as evidenced by the Scandinavian nations' decision to abandon the system, and, more importantly, given the essential complexity of the bicameral system over its monocameral counterpart, what has spurred this recent resurgence in bicameralism?
This was the issue that delegates at the Forum of the World's Senates, held in Paris on 14 March 2000, undertook to answer5(*).
Firstly, it may be observed that, historically, bicameralism has fulfilled two essential roles: on the one hand, that of representing the federated states of federal nations, with a notable example being provided by United States Constitution of 1787; and on the other, that of sharing political power to the benefit of a social class whose pre-eminence has been challenged by social change: such is the case of the House of Lords under the United Kingdom's constitutional monarchy. Although the former of these two models has survived and maintained its raison d'être, the second has come under review, for equally obvious reasons : aristocratic chambers are threatened quite simply because the sociological reality they once embodied is disappearing.
It is thus elsewhere that we must seek the causes of the current resurgence in bicameralism and we consider that these areas are - and this list is not exhaustive - the following:
* without necessarily seeking to embrace federalism, many of the world's nations are pursuing decentralisation policies which justify an independent representation at central level, and bicameralism is the only system appropriate for such contexts;
* many states are now embarking upon a process of democratisation or of consolidation of the rule of law which requires the involvement of all components of the nation, sometimes in situations where these constituents are not inclined to participate; the bicameral model assumes this cohesive role and acts as a guarantor of stability in the transition to democracy;
* other states -- or sometimes even the same ones -- having initially established a single-chamber system, have realised its limitations and even its risks, insofar as such models may be perceived as having been "imported" without sufficient consideration for local realities: the diversification of representation brought about by the establishment of bicameralism enables a process of re-appropriation of the parliamentary system that respects national circumstances;
* in other cases, bicameralism is necessary as a modern means of ensuring the separation of powers without which a society has no constitutional basis;6(*) and in this, it is particularly clear that the development of majority-rule systems (systems whereby the elected majority and government are one and the same) give legitimacy to the need for a second chamber which is independent of the lower house, precisely because it is not subject to majority rule;
* furthermore, in the broad majority of cases, bicameralism appears as a guarantor of efficiency by virtue of its role in enhancing the legislative process. The growing complexity and technical nature of issues, and the rapid growth in legislation justify the existence of a second chamber responsible both for examining legislation proposals and for reviewing texts adopted by the lower house;
* lastly, we must not forget that established doctrine in contemporary political philosophy and current thinking in constitutional law offer a means to develop the philosophical basis of bicameralism which is founded, in a mature political system, upon the need to represent man in his entirety, that is the homo civicus who holds the rights of the citizen and man socialised by the communities to which he belongs or, more exactly, by the communities which he forms.
This is a vast and fascinating programme of collective study that must be undertaken resolutely but also with humility, for the simple reason that, at present, no-one has the scientific basis enabling this to be undertaken from a purely objective standpoint.
I - THE STRUCTURE OF SENATES
The structure of senates varies considerably from one country to another. Methods of nomination are a first element in diversity, although these are usually based on some form of election (1). The number and term of office of Senators are also subject to significant differences, although, here too, some constants may exist (2). In any case, it is possible to detect a clear desire to guarantee a better representation of the nation through the creation of a Senate (3).
1) Disparate methods of nomination
All the different nomination methods can be found within the bicameral system, but election is the most widely found principle.
a) Fully elected Senates are in the majority:of a total of 67 existing two-chamber parliaments, 39 have a second chamber in which all members are elected.
· Out of these chambers, 21 are elected by direct suffrage7(*).
· Election by indirect suffrage, usually by local authorities and through the intervention of locally elected people, takes place in 16 countries, including South Africa, Gabon and the Russian Federation. However, these three states each have different models of indirect election. South Africa has a system of election by the provincial legislative assemblies, a system also chosen by several other states, among them Austria and Ethiopia. It is most common in federal countries. Gabon has a system of election by local authority representatives, communes and departments. This is also the case in France. Finally, the Russian system provides for the nomination to the Federation Council of one representative from each of the executive and legislative bodies of the republics. Ipso facto these are the heads of each Republic's government and assembly that sit on the Council. In Germany, where a federal model prevails, the representatives of the governments of the Länder, themselves nominated by the regional legislative assemblies, make up the Bundesrat.
· Two states (Spain and Belgium) currently implement a mixed system of direct and indirect election. The Spanish Senate has 208 members elected by direct universal suffrage and 49 members elected by the assemblies of Spain's seven autonomous regions. The Belgian Senate8(*) comprises 40 members elected by direct universal suffrage, 21 elected by the regional councils and 10 coopted by the 61 members of the first two groups.
b) There also exist Senates that are partially elected and partially appointed. Depending on circumstances, election can be direct (Chile, Italy) or, more frequently, indirect (eleven states fall within this category, including Algeria, Ireland and Kazakhstan). It should, however, be noted that generally, the number of elected Senators outweighs the number of appointees (96 out of 144 in Algeria, 38 out of 47 in Chile, 49 out of 60 in Ireland, 315 out of 324 in Italy, 32 out of 39 in Kazakhstan).
c) Finally, 14 Senates are fully appointed. However, three observations should be made here. Firstly, this example principally concerns two types of State. The most common are countries whose size and population would make it difficult to justify two-tier legislative elections (Antigua, Bahamas). Less common, but still significant, are states in the process of democratisation (Jordan, Cambodia).
It should be noted, and this is a second remark, that such appointments are often subject to controls. The case of the Canadian Senate is significant in this regard. Canadian Senators are appointed by the Governor General but on the advice of the Prime Minister who is, in turn, appointed by a chamber that is directly elected by the people.
Finally, it should be noted that appointment may be a transitory method of nomination, generally within the framework of a democratisation process.9(*)
2) Numbers and term of office
a) Variable but generally limited numbers
Without wishing to make any sweeping generalisations, it can be considered that the bicameral model corresponds to assemblies with restricted numbers. If we put aside the very particular case of the House of Lords, the chamber with the second highest number of Senators is the Italian Senate, with 324 members. Furthermore, Senates with less than 110 members are in the vast majority: there are currently fifty-one.
In terms of numbers, second chambers can be classified into three principle groups:
* There are 27 Senates with 19 members or less. These are most usually, but not always, states of small size and population, such as the Caribbean islands, for example. Senates in Spanish-speaking countries often have small numbers of representatives: Bolivia, Chile, Paraguay, the Philippines and Uruguay each have respectively 27, 47, 45, 24 and 30 senators.
* a second group comprises Senates with between 50 and 109 members. There are 22 in total. These are states of all sizes and on all continents, including: in western Europe, the German Bundesrat and the Austrian Federal Council, the Irish Senate, the First Chamber of the States-General of the Netherlands and the Belgian Senate; in Asia/Oceania, the Senates of Malaysia, Cambodia, Nepal and Australia. The Canadian and American Senates represent North America, those of Brazil, Colombia and Argentina represent South America; the Senates of Gabon, South Africa, Ethiopia and Nigeria represent Africa. The second chambers of the Czech Republic and Poland represent east and central Europe. It is to be noted, however, that many of these assemblies are federal Senates whose composition is generally based on an equal representation of the federal components, at the rate of a modest number of seats for each of them, and hence a relatively moderate number of members in total.
* finally, there are 13 Chambers with more than 109 members, of whom 6 have between 240 and 279 members (India, Spain, Japan, Thailand, Egypt and Morocco). The three Senates with the most members are those of France (321), Italy (329) and the United Kingdom (576 life and hereditary peers).
b) Term of office
The terms of office of the different second chambers are also very variable.
They frequently range from 4 to 6 years (4 years: 13 chambers, 5 years: 22 chambers, 6 years: 17 chambers) and, exceptionally, of a longer term: there are two Senates whose terms of office are 8 years (Brazil and Chile) and three Senates whose terms of office are 9 years (France, Morocco and Liberia).
On the other hand, only 3 states have chosen terms of office of less than 4 years: Bosnia-Herzegovina (2 years), Burkina Faso and Malaysia (3 years).
Finally, one case of lifetime nomination can be noted10(*): the House of Lords and one case of hereditary appointment: the Council of Chiefs of Botswana, for 8 of its 15 members. There is one case of appointment until retirement at the age of 75: the Canadian Senate.
Furthermore, in three federal states the term of office of the members of the second chamber varies according to the electing body: Germany, Austria and Russia.
c) Partial renewal, the impossibility of dissolution and the specific role of the Senate Presidents: the search for State continuity
* Partial renewal, which aims to ensure the relative stability of assemblies and to avoid political hiccups, is frequently used: 14 states (Argentina, Australia, Brazil, Czech Republic, Chile, Egypt, France, Haiti, India, Japan, Morocco, Nepal, Philippines) have expressly adopted this system. Strictly speaking, Senates whose members represent governments or state assemblies or federated provinces (Germany, Austria) should also be included as these governments or assemblies are subject to re-election at different intervals, which may, by extension, lead to a partial renewal of the assembly they constitute.
* The impossibility of dissolving Senates is a guarantee frequently used to ensure the stability and continuity of the State: it exists in the majority of the world's nations.
National constitutions provide for a right of dissolution in only 19 cases, including the Belgian, Spanish and Italian Senates, the First Chamber of the States-General of the Netherlands, the Chambers of Councillors of Japan and Morocco and the Senates of Kazakhstan, Thailand, Nepal and Uruguay.
The rank of president of the Senate is generally the second or third most prominent figure in the State, but the role he frequently plays in the event of incapacity of the Head of State further illustrates the desire to make the Senate an element of institutional continuity.
In 13 countries, the president of the Senate may stand in for the Head of State (Algeria, Bolivia, Cambodia, Chile, the Czech Republic, France, Gabon, Germany, Italy, Kazakhstan, Madagascar and Romania) To this list should be added the countries in which the President of the Senate is also the Vice-President of the State: India, Liberia and the United States. In other cases, the president of the second chamber stands in for the Head of State in the event of incapacity of another authority: vice-president of the State (Paraguay, Philippines) or president of the lower chamber (Brazil, Poland). Finally, the president of the Senate may be called upon to participate, alongside other personalities, on an acting basis: in Ireland with the president of the Dail Eireann and that of the Supreme Court; in Morocco where by right he is a member of the King's Council, in the Netherlands where, in case of difficulties (under-age monarch, incapacity, absence of successor), the royal succession is a matter for both chambers of the States-General.
3) Senates and the need for greater representation of the Nation's components
One of the most constant functions of the bicameral system is that of enabling diversified representation of the components of society in order to achieve a balanced parliamentary system. Three categories can thus be examined:
a) The territorial organisation of the national State
Such is the case of the National Council of Provinces of the Republic of South Africa, and also the Federation Council in Russia. Other examples are that of the Federal Council of Ethiopia whose members, elected by the Provincial Councils, represent the "Nations, nationalities or peoples of the country" and also that of the Brazilian Senate, representing the federated States of Brazil. It is this role of representing the regional authorities that forms the constitutional nature of the French Senate today, along with this of the Senate of Gabon.11(*).
b) The professions, social groups or the "life blood of the Nation"
It is thus that two-fifths of the members of the new Chamber of Councillors in Morocco are elected by professional bodies and employee representatives (the other councillors are elected by the local authorities). Similarly, the Chamber of Representatives of Burkina Faso, also recently created, is composed of a certain number of members elected by the unions, women's associations, rural associations, etc. The Irish Senate has members elected by the universities. Moreover, although they are largely nominated by the local councils, the Irish Senators are all chosen on the basis of their membership of a professional body.
It should also be noted that Senates may be entrusted the task of representing nationals that have settled outside of their country. Such is the case in France.
c) The traditional elites
Africa is a case in point. The elites, whether they are "customary" representatives, tribal chiefs or so on, often found themselves excluded from power at the time of independence. The consequences of this exclusion are now beginning to emerge in the form of social or political unrest. To remedy this, many African states are now considering the creation of a Senate that includes traditional elites. The Chamber of Representatives of Burkina Faso thus has 22 representatives from the different religious communities as well as from the "traditional community". The Council of Chiefs in Botswana also plays this role of representing the traditional chiefs. Similarly, while it has not yet come to fruition, Lebanon -- shattered by years of civil war -- has provided for the creation of a Senate in the Taëf Agreements, seeing in this a means of representing and protecting its various religious communities.
II - THE POWERS OF SENATES
For the purpose of simplicity, we shall distinguish between legislative (1) and extra-legislative powers (2).
1) Legislative powers: the model of egalitarian bicameralism
With regard to legislative powers, that is, the power to decide on the content of laws, the dominant model at international level is that of egalitarian bicameralism. This is not, however, a general rule and there are exceptions.
a) Egalitarian bicameralism: a generally widespread model.
The majority of the world's Senates have legislative powers equal with those of the lower assembly. We will examine, in turn, the three main components of legislative power: the power of legislative initiative, the power of amendment and the capacity for decision when examining texts.
· With regard to the power of legislative initiative, 33 Senates enjoy this privilege in full. Again, this figures does not include Senates which, while having a general right to initiate legislation, find it refused in matters of finance, like the lower chamber incidentally. This restriction with regard to financial legislation is common among Anglo-Saxon nations, in particular in the West Indies and the Caribbean: Antigua, Bahamas, Barbados, Belize (fiscal restriction), Saint Lucia, Trinidad and Tobago. Canada and Australia also fall within this model, as does the Czech Republic.
On the other hand, only six upper chambers have no power of legislative initiative whatsoever (Algeria, Ethiopia, Fiji, Lesotho, Netherlands and Thailand).
· The power of amendment is fully recognised for 40 upper houses. The preceding reserve relating to the particular area of finances also applies here. At this time, and without prejudice to the special case of consultative assemblies, there are only three Senates that have no power of amendment: Cambodia, Kyrgyzstan and the Netherlands.
· If we look at the decision-making powers of the Senates during the procedure for examining parliamentary bills it can be noted that, in a large number of cases, the Senate's agreement is required for the final adoption of the law. In this respect, bicameralism is completely egalitarian in 19 states. In these countries, the legislative powers of the two chambers are strictly identical. Such is notably the case of Austria, Bolivia, Brazil, Colombia, Romania, Switzerland, Italy and the United States.
A frequent variant of this egalitarian bicameralism restricts the equality of powers to certain areas. Such is the case in Germany, where the agreement of the Bundesrat is required to adopt bills relating to the Länder or their sphere of competence. In South Africa, the National Council of Provinces has a veto over all bills affecting the provinces, which can only be overridden by a two-thirds majority of the National Assembly. The Belgian Senate has powers identical to those of the Chamber of Deputies in four areas: fundamental institutional issues, international treaties, cooperation agreements between the federal State, the communities and regions, and laws relating to organisation of the judiciary. In France, the Senate's agreement is essential for constitutional laws and organic laws relating to the Senate. In other words, Senates frequently play the dual role of providing institutional stability and preserving the nation state.
Another variant is that of de facto egalitarian bicameralism. In this hypothesis, the lower chamber has, in principle, the possibility of resolving in the last resort but this power is neutralised by the requirement of a qualified majority. This is not an uncommon case. Thus the Russian Douma can only impose its point of view on the Federation Council if it has a two-thirds majority. The same applies in Kyrgyzstan and Japan.
Two exceptions should be noted: that of Paraguay, firstly, where either chamber may have the "last word" provided that the other chamber does not override this by a two-thirds majority. Conversely, in Algeria, where the National Council passes bills voted by the People's Assembly but can only do so by a three-quarters majority of its members.
Overall, these three variants of the same model apply to 31 chambers. Amongst these, 18 have powers that are strictly equal to those of the lower chamber, 6 have similar powers recognised in certain areas, and 7 have the possibility of overturning, by qualified majority, the "last word" granted to the lower house.
It should, however, be noted that while egalitarian or quasi-egalitarian bicameralism is more common than generally believed, it essentially applies to the voting of legislation in the strict sense. On the other hand, it is rare in matters relating to the government's political responsibility: few Senates can dismiss a government. This practice reflects a desire to give Senates a role as guarantors of political stability. Furthermore many Senates can only sanction their governments insofar as they exercise their mission within the framework of a presidential or semi-presidential regime in which the ministers are not accountable to the chambers: such is the case of the United States, the Philippines and Russia.
b) Exceptions to the model
· First exception: certain upper chambers are essentially consultative. In this case, the upper chamber does not participate, properly speaking, in voting a law but advises on its content. These assemblies are rare. There are five in all: Burkina Faso, Cambodia, Egypt, Slovenia and Botswana.
The particular case of the Indian Senate should be mentioned, which has powers equivalent to those of the Chamber of Representatives, except in affairs of finance, where it has a purely consultative role. It should be added that, contrary to popular belief, a consultative assembly is not necessarily a powerless assembly. The level of its integration within the institutions, due to the quality of its recruitment, its action and its sphere of influence may, in fact, compensate for it being disqualified from the prescriptive procedures of legislative formulation.
· Second exception: restrictions of legislative power that result in specific limitations on the ability to propose or amend legislation. This generally relates to finance and/or fiscal policy (Caribbean, Australia, Canada). In other cases, financial inadmissibility of the type mentioned in article 40 of the French Constitution is the case (Gabon)12(*). Finally, the last example to be mentioned is the requirement for the government's approval in matters relating to budgetary affairs (Kazakhstan). It should, however, be noted that these different restrictions very often apply to both Chambers.
· The last exception is the possibility of the first chambers to decide in the last resort. This "last word" may be unrestricted or restricted. In the former case, it can easily be applied on the sole initiative of the lower house or the government. In the latter it is subject to controls.
The last word, applicable in all areas, without prejudice however to constitutional affairs, is quite rare. It exists in only ten states, including Spain, France, Poland, Senegal, the Czech Republic, Gabon and Ireland. What is more, in some of these different states the deadlines imposed for implementation of this last word tend to make it a kind of temporary veto for the Senate. In any case, these deadlines can seriously limit its scope. Thus in France, use of the "last word" can only take place after two or three readings in each chamber, on the express decision of the government and after the failure of a committee of the two assemblies (so-called "Joint Committee of Both Houses"), which is assembled to iron out the differences between the Senate and the National Assembly. It should also be noted that this last word only relates to measures still under discussion, which is generally a very small part of the bill examined.
The last word may be limited by a restriction in the areas to which it can be applied. And it should be noted here that it is rare to see it extended to constitutional affairs. It may also be restricted by its use being dependent upon conditions of majority. A certain number of states thus impose the condition of a two-thirds majority vote in order to enable it to prevail over the other assembly.
In any case, the "last word" is only the final stage in a process of development of ideas and texts: the parliamentary "shuttle"(or movement of bill between two legislative assemblies). The existence of this alone is a guarantee of improved legislative production and of a better consideration of the components of the national community. In fact, save in cases of political major tension, the last word is a dangerous instrument which governments and first chambers apply sparingly. France is a case in point: out of 3,754 laws passed since 1958, 3,456, or 92.1%, were the fruit of consensus between the two chambers. In 1998-99, even when the majorities in the two French chambers were different, over half the amendments passed by the Senate were ratified by the National Assembly.
2) Extra-legislative powers: Senates as guarantors of institutional stability
Aside from passing laws and invoking the government's political responsibility, Senates are very frequently conferred extra-legislative powers which may be grouped under three broad categories: to consolidate the Constitution, to participate in high-level government appointments and to exercise judicial powers.
a) Senates as constitutional guarantors
Senates are frequently conceived as providing institutional stability. Given these conditions, it is not surprising that a large part of the constituent power is devolved to them. In fact, they play an important role in this area, and this in two ways: firstly, in most cases they participate in constitutional revisions. Their approval is generally required for a revision to be finalised and national constitutions frequently require a senatorial vote by a qualified majority for their amendment; secondly Senates may play a role in the area of constitutional scrutiny, either by appointing some of the constitutional judges or being able to initiate this scrutiny.
The appointment, albeit partial, of constitutional judges by the Senate is very widespread. To take but one example, all the bicameral states in western Europe that have a constitutional court use this method. In France, the President of the Senate appoints 3 out of 9 members of the Constitutional Council, in Germany the Bundesrat appoints 8 out of 16, in Austria the Federal Council puts forward names for 3 out of 14 constitutional judges, the proportion is 4 out of 12 in Spain. In Italy, the two chambers together appoint 5 constitutional judges out of 15. Finally, members of the Belgian Court of Arbitration are appointed by the King from a dual list presented, in turn, by the Senate and the Chamber of Representatives. But this power of appointment extends beyond western Europe and is found in many other countries where constitutional scrutiny exists: South America, for example, in Colombia, Chile and Paraguay; Africa, in Gabon and Morocco; and Asia, in Kazakhstan and Cambodia.
The submission of a case to the Constitutional Court by the Senate is also fairly widespread around the world. It is particularly common in western and eastern Europe: Bosnia, Poland, the Czech Republic, Romania, Russia and Slovenia, but also much further afield: Algeria, Brazil, Cambodia, Jordan and Morocco.
b) Powers of appointment of State officials
Aside from appointing constitutional judges, Senates play an important role in deciding high-level government appointments. Once again, in this area, the chief concern is to safeguard national stability. Two principal practices may be distinguished: on the one hand, direct appointment and on the other, a requirement for the Senate's approval of appointments made by other authorities.
* Direct appointment by the Senate occurs in thirteen states: this often relates to the appointment of senior civil servants, diplomats, military posts and magistrates. The Bolivian Senate thus appoints the magistrates to the District Courts, the National Industrial Tribunal and the National Court of Mines. It appoints, together with the Chamber of Deputies, the Supreme Court judges, members of the Magistrates Council, the Public State Prosecutor and the Ombudsman. It submits three choices to the Head of State for the appointment of the Comptroller General of the Republic or the Superintendent of the Banks. In Colombia, the Senate appoints the Public State Prosecutor. In Spain, the Senate makes proposals to the King on the appointment of 4 of the 20 members of the General Council of the Judiciary. In Romania, it appoints the Ombudsman or People's Advocate. In Russia, the Public Prosecutor of the Federation, the Constitutional Court judges, the Supreme Court judges and the judges of the High Court of Arbitration of the Federation are appointed by the Federation Council, on the advice of the President of the Federation.
* The need for the Senate to agree to certain appointments is even more common. The American case is well-known: the Senate's agreement is essential for the appointment, by the President of the United States, of ministers, ambassadors and senior civil servants. This is also the case in Argentina with regard to the appointment of Federal Court judges, diplomats, trade attachés and senior officers; in Bolivia, for general officers and diplomats; in Brazil for magistrates, members of the Auditors' Tribunal, regional Governors, the governor of the central Bank and the Public Prosecutor.
c) The judicial powers of Senates
Senates frequently participate, either in tandem with lower houses or alone, in examining cases against certain senior state officials. Depending on the case, its role is to indict and/or to pass sentence.
This role in general concerns the Head of State or members of the government. It thus appears to be an extension of invoking the political responsibility of the executive, in particular in presidential systems. Such is the case of Russia, Brazil, and the United States, with the impeachment procedure.
However, the judicial powers of Senates can go much further and can be considered, in some cases, alongside those of the classic legal institutions. The Argentinian Senate may thus judge the President, the Vice-president, members of the government and even Supreme Court judges. In Bolivia, the Senate can judge the President of the Higher Court of Justice and the Public State Prosecutor. In Chile, this power extends to general officers, to paymasters and governors. In Colombia, apart from the President of the Republic, the magistrates of the Constitutional Court and the Supreme Court of Justice and the Council of State, members of the Supreme Council of Magistrates and the Prosecutor General can be tried by the Senate. Similar powers are entrusted to the Senates of Paraguay, Uruguay and the Dominican Republic. It is thus possible to detect a South American "model" characterised by wide powers of sentencing entrusted to the Senate.
It should, however, be noted that this model is not restricted to South America. Other states around the world bear similarities with this model. In Kazakhstan, the Senate has the power to strip immunity from the Public Prosecutor and members of the Supreme Court.
d) Scrutiny of government policy
Scrutiny of government policy is an essential role of Parliaments. The second chambers have rapidly exercised this role, in the same capacity as the first chambers. This scrutiny is carried out through classical means: the work of standing committees, the possibility of putting questions to the government and the right of obtaining a response, the power to create investigative committees.
Yet over and above these commonly used instruments, in recent years an increased awareness of the particular role that second chambers can play in this area has emerged. Owing to their position as assemblies that are less frequently placed under the political spotlight or subject to governmental pressure and party influence, Senates frequently have an independence which makes it easier for them to criticise government policy. This criticism, furthermore, is not necessarily negative but can fall within the framework of a constructive and long-term evaluative assessment.
In this way, the British House of Lords' scrutiny of the process of European construction via its European Communities Select Committee is widely admired. In Germany, in virtue of its natural familiarity with the structure and workings of the Länder, the Bundesrat plays an essential role in preserving regional balances and the Länders' devolved powers. In European affairs, the powers of the Bundesrat have also grown considerably. Thus, for example, when regulations to be examined regarding the European Union affect the powers of the Länder, the Head of the German delegation to the Council of Ministers must be a Land minister appointed by the Bundesrat.
The French Senate has also made innovations in the area of scrutiny. Since 1972, it has regularly overseen the statutory application of laws. It also participates, along with the National Assembly, in evaluating legislation and public policy, particularly by way of parliamentary offices. In the area of European affairs, it has thus taken the initiative of creating a permanent office within the European Union.
By way of conclusion to this brief overview, three preliminary findings may be drawn:
* firstly, the wide disparity in the structure and roles of Senates or second chambers, which contrasts with the homogeneity of monocameral systems. "Senates are remarkable in revealing the deep tensions that run through different countries"13(*) and at the same time are the only model enabling such tensions to be resolved;
* bicameralism requires a new approach: often perceived as a constitutional "plus", a luxury that only the wealthiest nations can afford, bicameralism is, insofar as it is representative of national diversity, the necessary condition of mature parliamentary democracy. In fulfilling this role, and in exercising the powers conferred upon them, Senates guarantee the stability and legitimacy of national institutions. At the risk of appearing provocative or simplistic, it must be remarked that without bicameralism, democracy is in its infancy.
* in the final analysis, there is nothing surprising in the resurgence of bicameralism: it is a system that is well adapted to complex societies, whether this complexity be traditional or modern. And by its flexible and open-ended nature, it is alone in being able to address each of these complexities and to guarantee the transition from one to another. Bicameralism is, indeed, the way forward.
Methods of Nomination of the World's Senates and Second Chambers
Fully elected Senates
Partially elected/partially appointed Senates
Democratic Republic of the Congo
Trinidad and Tobago
1 For the sake of convenience, the names Senate or Second Chamber are used indifferently to refer to upper chambers in general.
2 Countries currently considering such an initiative notably include Lebanon, Oman and Uzbekistan .
3 For example, Cameroon, Georgia and Chad.
4 Alongside the People's National Assembly, the People's Republic of China nevertheless has an assembly called "The Chinese People's Political Consultative Conference".
5 See the proceedings of the debates of March 14th 2000, published for the Meeting of the Senates of the World (Sénat de la République Française, April 2000).
6Article XVI of the Declaration of the Rights of Man and of the Citizen of 1789: "Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution."
7 This is the model, to name but a few examples, in Australia, Bolivia, Japan, Mexico, Poland, Brazil, Switzerland and the United States.
8 Certain members of the Royal family are also members of the Belgian Senate as of right.
9 This is the case for Thailand, the Senate of which was elected by universal suffrage for the first time in March 2000.
10 The lifetime nominations of former Presidents of the Republic, which relate to very small numbers, are not taken into account (e.g. Italy).
11 Very often, the electoral constituencies of Senates are the same as those of the regions (e.g. Poland).
12 Article 40 of the French Constitution prohibits parliamentary amendments and proposals that have the consequence of either diminishing public resources, or creating or increasing public expenditure.
13 Pascale Delfosse and Jean-Pierre Duprat - "Des Sénats" - Revue Internationale de politique comparée - Volume 6 - n°.1 - p. 7.