The Continent's Youngest Senate:á

In Search of Its Role in the Constitutional Order of the Czech Republic

Presented at

ôThe Seminar on the Role of Bicameral Parliaments

in Democratic Countriesö

May 3, 1997

Venice, Italy

by Petr Pithart,

Speaker of the Senate,

Parliament of the Czech Republic

I am the Speaker of probably the youngest ôsecond,ö or if you will ôupper,ö chamber of Parliament in Europe, and perhaps not only there. Although the Constitution of the Czech Republic, which was adopted in 1992, before the break-up of Czechoslovakia, provides for a bicameral Parliament, the Second Chamber held its first election only last November, after a delay of almost four years. For your information, I have provided you with a handout which briefly describes the genesis and structure of this body.

The Senate of the Parliament of the Czech Republic is still undergoing a period of searching for, and defining, its constitutional role. It is certainly the ambition of every constitution to regulate as many fundamental societal relations as possible. In fulfilling constitutions, certain "meta-constitutional" relations are formed: The particular constitutional bodies create and adjust their mutual relations in striving to give life to, and in a way even supplement, the constitution. In my country this process is, perhaps, even more complex than that. Since my country does not have the luxury that some other countries enjoy -- a long tradition of constitutional democracy -- the relations of the highest constitutional bodies, in many instances, can be problematic, and even controversial. So valuable for us, therefore, is the experience of other countries with diverse constitutional models.

Comparing our arrangements with those of other countries whose constitutions provide for a bicameral parliament leads us to wonder why each of these countries has chosen this specific form at all. A one-chamber Parliament is a less complex, cheaper and less controversial constitutional arrangement. Many people in our country still think so. When we examine the various bicameral parliamentary models, we can see that although they differ a great deal, they have much in common. In fact, one could say that they can be grouped according to three basic types.

In some countries, the Upper Chamber reflects and confirms various interests that arose as part of a particular, and very long-term, process of historical development. Those interests may, perhaps, be seen as remnants of what where formerly known as the ôestates". In a second group of countries, the Upper Chamber results from a federal arrangement, and represents the desire of the founding members of the union to create a nationwide will. In the third group, the Second Chamber reflects the countryÆs various regions, whose interests are both projected and protected within it.

These three rationales for bicameral parliaments also underlie the diverse electoral, appointment, or hereditary systems of the second chambers, which are usually different than the electoral procedures of the ôfirst,ö or ôlower,ö chambers.

The bicameral parliaments of post-communist countries, however, offer a somewhat different picture. The primary goal of these countries was to create pluralist political systems, which would facilitate the development of democratic habits and sensibilities among their citizens. Understandably, the formation of these political systems has led, and continues to lead, above all else, to the rise of a wide range of political parties and movements. Only now are these entities inquiring into their most fundamental assumptions and positions; and only gradually are they coming to terms with the role of the state and the needs of a civic society.

In the interest of encouraging political pluralism, therefore, the system of proportional representation seemed the most advantageous for the Lower House, which in the Czech situation is called the Assembly of Representatives, since it enables Parliament to reflect the entire political spectrum. With it, however, comes a wide range of problems. The political spectrum within the Assembly, although it might be limited by a minimal percentage threshold (which is, for example, in the Czech Republic, five per cent of the popular vote), at this moment in our development naturally includes Representatives with extreme political tendencies. A parliamentary system based on proportional representation might be, therefore, quite unstable in these countries.

Thus, in forming constitutional relations, a new aspect arises, as a basis or justification of a bicameral parliament, which is based neither on regional representation, nor on a federal principle, and not even on longstanding historical interests and traditions. At issue, here, is a struggle for stability, not merely between various interests or peoples, but within the popular will itself, between momentary passions and the long-term sensibilities required for the stability of the political system.

Reflecting this understanding, the Second Chamber of the Parliament of the Czech Republic is elected on a majoritarian basis. In that this makes it more difficult for candidates of extremist political parties to get elected, stability is added to the political system. In addition, the creation of One-Member Constituencies, wherein voters must actually choose an individual candidate as their Senator, allows for the emergence of a new type of political figure, somewhat less dependent upon party identification. While these Senators are usually connected with a political party, acquiring and maintaining their position in Office is also due to local identification and accountability.

The Senate of which I am the Speaker also adds stability to our political system by virtue of the fact that its complement of Senators is renewed gradually; whereas, the political composition of the Assembly of Representatives, our lower house, may change dramatically overnight. Senators are elected for six-year terms, and every two years, one third of the Senate seats are open for election. In times of sudden, dramatic changes, the Senate can thus perform the function of a gyroscope, counterbalancing the effect of whatever waves of popular opinion may hit the Ship of State.

As is the case in most other countries, the use of a different electoral system for each of our chambers places them in a different position in the structure of the constitutional system. The Czech Senate is to a considerable degree detached from the executive branch: The Assembly of Representatives, which is elected on the basis of the proportional system, has exclusive discretion over budgetary issues, and it is on the basis of party standing in that chamber that the Government is formed and dissolved. The SenateÆs role should be, therefore, twofold: First, at all times, it serves as a chamber for ôsober second thought;ö as a chamber with a different perspective (hopefully, longer-term, and less partisan); and as a chamber which helps, therefore, to ensure better quality legislation. Second, in times of political crises, it serves as a kind of constitutional safeguard: As distinct from the Assembly of Representatives, and the President, the Senate is the only element of Parliament which cannot be dismissed by another: It thus ensures that mere political crises do not escalate into constitutional crises--situations in which it is unclear who is the legitimate holder of power in the country. (Therefore, the role of the Senate is more pronounced when a premature election becomes necessary for the Assembly.)

As I have already mentioned, the Senate of the Czech Republic has the advantage today of being a new institution which is searching for its constitutional place. Thus far, I can say that the Senate will probably try to fulfil its constitutional role, among others, by gradually striving to become -- like the President and the Constitutional Court -- a guarantee not only of political stability, but also of the development of the political and legal culture of a civil society. Very significantly, Czech Senators are beginning to fulfil, to a certain extent, the role of something like an ombudsmen in their home constituencies, intervening in the processes of government where their constituents encounter difficulties.

It would be premature to say that the Senate, as the second chamber of the Parliament, is well established in our constitutional order. Certainly, we can say that the Czech Republic is today, in some respects, in a more advantageous position than other post-communist countries, since after the Czechoslovak Republic was created in 1918, it was a country with a bicameral parliament, and it was in that time one of the bearers of European democratic culture. Today, however, we must still strive with purpose and vigour, against sometimes considerable forces, to return to our democratic traditions, and find our new place in Europe.

While we are not trying to conceal the problems and difficulties which this process brings, we have great hopes and expectations; and we have faith, moreover, that other European Parliaments will help us, not only in renewing our democratic traditions, but also in the process of joining the European community.

Petr Pithart