Bicameral Parliaments

Bicameral parliamentarism is equally relevant for many countries in the world that can only partially be explained by historical antecedents of colonialism in Latin America, Asia or Africa.^[29] The British example of an upper House (Lords) and a lower house (Commons) has certainly influenced bicamaralism in USA, India, Canada, Australia, New Zealand and other Crown Colonies after attaining indepen­dence and sovereignty.

As mentioned above usually a distinction between symmetrical (equal) and asymmetrical (unequal) bicameralism is made (Tables 1.2 and 1.3):

Symmetrical bicameralism exists if a—more or less—equal balance is struck between the two chambers with regard to legislation, but with regard to elective and supervisory functions.^[31] Of course a certain discretionary element prevails when distinguishing both models because a minor participatory role of the second chamber in the central legislative process can be outweighed by other elective/appointing and/or supervisory functions. However, the main benchmark rests with the vetoing position (suspensive or absolute veto) of the second chamber in the legislative procedure.

The distinction is not identical with comparing central v. regional/federal v. state competences in regionalized or federal systems which is relevant for the comparison of territorial (vertical) distribution of powers but is limited to the participation of regional or state chambers in the central decision-making process.

Table 1.2 does not intend to provide an exhaustive overview based on the above distinction including the mode of representation^[32] but is a selective overview for further comparative research.

Table 1.2 | Bicameral Parliaments

Table 1.2 (continued)

Table 1.2 (continued)

Table 1.2 (continued)

1.4 Remarks

Empirical comparison demonstrates that the overwhelming majority of states practises monocameralism in Europe, America, Asia and across Africa but a relevant number (more than one third) of states adheres to bicameral models in various forms.^[33]

The arguments—besides historical precedents (United Kingdom, USA, Germany, Switzerland, France and others)—in favour of bicameralism are mainly associated with the theory of vertical separation (representation) of powers and refer to a fair and balanced territorial representation of states or cantons, regions, departments or similar territorial collectivities.

It shifts separation of powers from the classical “horizontal” doctrine between the State powers—legislative, executive and judiciary—to a second (“vertical”) level. It supports and strengthens the consolidation of democracy, rule of law and informa­tion of public opinion.^[35] Bicameralism reflects internal separation of powers between the bodies or assemblies of representation on both the central and regional level and drifts away from purely aristocratic or societal representation of interest groups. The latter have become relatively rare in constitutional reality (e.g. UK, Ireland, Slovenia, Thailand).

Monocameralism may be preferable for smaller countries^[36] where a regional representation is assumed to be costly and not effective enough, but bicameralism is also practised in countries of smaller dimension, e.g. in Europe (Austria, Slovenia) or Africa, mainly for historical predisposition and postcolonial structures. Whether bicameralism is legitimate and promising has to be discussed intensively in a

Table 1.3 | | Bicameral “asymmetrical” Parliaments

Table 1.3 (continued)

Table 1.3 (continued)

Table 1.3 (continued)

Table 1.3 (continued)

^a The House of Representatives has a slight predominance in specified matters, e.g. budget bills, in cooperation with the Monarch (art. 74)

^b In Italy the term “bicameralismo perfetto” is used for equal bicameralism ^c The role of Senate comes close to an equal participation as both chambers have the right of initiative and amendments to bills and needs approval of both chambers (art. 20 par. 3) ^d See for more details Venice Commission (2005), p. 3

^e An equal bicameralism was practised in the Third Republic and to a certain degree in the Fourth Republic, Weber, fn 21

^f Parliamentary Constituencies Act 1986 determining constituencies in Scotland, Northern Ireland, Wales and England, for the evolution of the electoral system, see Loveland (2015), chapter 7 ^g November 2018; see also the abolishment of hereditary peers in House of Lords Act 1999(1); for reform proposals see First Report of Joint Committee on House of Lords Reform (2002)

countries’ constituent assembly and cannot be prescribed a priori on a purely theoretical basis.

However, where bicameralism is practised in federalised, regionalised or strongly decentralised states it is worthwhile to consider the function, composition and electoral modes of representation.

The modes of composition of second chambers vary as much as the modes of election but as far as the “Senate” model is preferred (which is predominant) a fair and equal representation of the entities is guaranteed, i.e. a fixed number for the states, cantons or provinces (Argentina, USA, Switzerland, Australia, Canada, Russia). Differentiations of the representative quorum may fairly be legitimated according to the population index or other indexes (e.g. contribution to the gross national income and taxes). In the “French” model and its postcolonial successors the “Senat” aims to guarantee a fair representation of the “departments”, regions and local collectivities. The modes of election or nomination also vary considerably: direct elections in subfederal or regional entities according to the electoral systems or mixed systems (election and partial nomination by the Head of State in some presidential systems). The mode of election and nomination is often left to the legislative but a number—especially Latin American States or India—prescribe detailed rules for the election of the Chambers which may overload the constitutional text. Here a fair balance between constitutional guarantees and “readability” must be found. At least where a constitution refers to the legislature it should be regulated by “organic laws” (qualified majorities).

The decision for a symmetric (equal) or asymmetrical (unequal) bicameralism depends on several factors or criteria which do not only depend upon the participa­tion in the decision-making process on the central state level. The more the repre­sentation mirrors the territorial distribution of powers equal participation of the chambers in the legislative process is recommendable. It should not only encompass the initiative for legislative proposals of both chambers (there may be exceptions for financial bills like in many countries) but a balanced vetoing power of the respective chambers if the legislative bill is referred to the other chamber. Several solutions can be found in constitutional reality which intend to solve a final dissent between the chambers, either by intervention of the President in some presidential systems or— more often—by convening a mixed committee of members of both chambers elected on the basis of parity.

If it comes to a consensus the bill should be approved in both houses and be forwarded to the President. In case of continued dissent the bill may either become obsolete or the democratically elected first chamber representing the “people” or “nation” (House of Representatives, National Assembly) may have the final word (“unequal bicameralism”). But even in this case it should not be overlooked that second chambers often share several elective and control functions with the first chambers in order to elect the President, ratify international agreements, propose or scrutinize Supreme Court judges and so on. The role of the second chambers therefore cannot be reduced to the legislative function. Instead they play an impor­tant role in the horizontal and vertical distribution of powers.