Bicamérisme et représentation des régions et des collectivités locales : le rôle des secondes chambres en Europe

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Palais du Luxembourg, 21 février 2008

Chair: Ms Michèle ANDRÉ, Deputy Speaker of the French Senate

Thank you, gentlemen, for sharing the platform with me and honouring us with your introductory speeches. It is my pleasure to chair our first round-table discussion of the day and I welcome Mr Patrice Gélard, Senator and author of the Venice Commission report; also Mr Bruno Frick, member and former President of the Swiss Council of States; Ms Svetlana Orlova of the Russian Federation; Mr Aristide Roibu, member of the Romanian Senate and President of the France-Romania Friendship Group; and Mr Ilija Filipoviæ, Speaker of the House of Peoples of Bosnia and Herzegovina.

Ladies and gentlemen,

It is with great pleasure that I open this first part of our conference, the theme of which brings together two of the areas to which I am most deeply committed: European integration, and the upholding of bicameralism, with due regard for its various forms.

We know, of course, that in the seventeen member states of the Council of Europe that have opted for a bicameral parliamentary system, each system has its own original features, and it is precisely this wide range of experience that we shall be exploring presently in the contributions of our distinguished speakers.

I am confident that our discussions will identify the common features which give bicameral systems their legitimacy. It is no coincidence that the number of second chambers worldwide is increasing, as Mr Poncelet told us in his message of welcome.

Second chambers are proving increasingly important in consolidating and developing democracy. They extend representation to all areas and population groups. They also increase institutional stability by ensuring a more balanced distribution of power, and tend to improve the quality of legislation thanks to their careful thinking and moderate approach.

And, something of especial interest to us today, they help to regulate relations between central government and infra-state entities and thereby encourage and assist the processes of devolution.

The Association of European Senates is particularly enthusiastic in its promotion of these various functions.

I think the French Senate is well placed when it comes to relations between national and local entities because the Constitution specifically gives it a remit to represent the territorial communities of the Republic, which include the regions, municipalities and départements .

But we have much to learn from other institutional models too, however different they may be from our own. We shall obtain an idea of the diversity which exists here during our first session, when examples of bicameralism in both federal and unitary states will be presented. Distinguished fellow parliamentarians will explain how their respective systems work.

One example is the bicameral model of Switzerland which will be explained to us by Mr Bruno Frick, a member of the Swiss Council of States and its former President. The Swiss system goes back a very long way, and it is especially interesting in that the new Constitution has reformed the federal system, and we shall see how the Council of States now ensures representation of the regions.

Then we shall look at the case of the Russian Federation, to be presented by Ms Svetlana Orlova. She will bring to bear her twofold experience as Deputy Speaker of the Council of the Federation and member of the Council of Europe's Congress of Local and Regional Authorities, offering a commentary on Russia's asymmetrical federal system, in which the 86 subjects of the Federation, albeit of different types, nevertheless all have equal representation in the Council of the Federation.

Next comes Romania, a country in which bicameralism remains problematic. Mr Aristide Roibu is a member of Romania's Senate and President of the France-Romania Friendship Group, so what he has to say will be particularly significant.

Lastly, Mr Ilija Filipoviæ, Speaker of the House of Peoples of Bosnia and Herzegovina, will give an account of the highly original system of this young country, which has bicameralism not only at federal level but also within each of its three entities: Bosnian Muslim, Croat and Serb. It will be interesting to see if representation of the entities in the House of Peoples makes for proper representation of the regions at federal level.

The comparisons we draw from these presentations will provide us with some first thoughts on the role of second chambers in making democracy a reality on the ground.

But first of all we shall hear an introductory report by our colleague Mr Patrice Gélard, author of a report for the Venice Commission on the role of second chambers in Europe, entitled Parliamentary complexity or democratic necessity ?

He has also done outstanding work in the French Senate's Law Committee on the experience of national parliaments in the European Union - a project in which our colleague Mr Jean-Claude Peyronnet and myself were also involved.

Without further ado, I hand over to Mr Patrice Gélard, author of the Venice Commission report.

Introductory report by Mr Patrice GÉLARD (France), Senator, author of the Venice Commission consolidated report

Madam Chair, ladies and gentlemen, distinguished guests,

It is hard for me to present an introductory report after the speeches which have gone before, and which have to some degree anticipated what I was going to say. In view of the time allotted to me, I shall have to summarise my speech, which, like any lesson in constitutional law, would normally have lasted three quarters of an hour.

What is the justification for a second chamber in a democracy?

The answer of some countries is that there is none, it serves no purpose, and in some countries the reality bears that out. It is hard to imagine Monaco, Liechtenstein or Andorra having a second chamber. A second chamber would, in certain regions, slow down or complicate the work of law-making. It would be expensive too; the cost element is important. The number of members of parliament in the various democracies is more or less the same in all countries. There are not really any variations which suggest that the bigger a country, the more members of parliament it has, and vice versa .

The second reason which allegedly makes a second chamber pointless is that it is not democratic. What is the point, within one and the same country, of having two chambers both directly elected and having the same powers?

Some states such as Japan or Italy are familiar with this situation. The risk here is either that one has a second chamber which is a kind of clone of the first, or that one has constitutional confusion with a risk of conflict between the two chambers, both of which have the same democratic legitimacy. We might of course envisage the Polish or Czech formula whereby the directly elected second chamber has fewer powers than the first chamber. But this would be a value judgment on the election method. Why would the method used to elect the Czech or Polish Senate be less good than that used to elect the members of the Chamber of Deputies or the Sejm ?

To this extent, direct elections to both chambers may not necessarily be the best solution.

Admittedly, second chambers seem to be an essential, even a substantive concomitant of federalism. All the world's federal states have a second chamber. The first chamber represents the people, and the second represents the territorial units that make up the federation. This seems to be an inescapable law of federalism.

So it is reasonable to wonder why the European Union does not have two chambers. It is moving towards a measure of federalism in that it includes embryonic second chambers.

The federal model has tended to be imitated by states with highly devolved government such as Spain and Italy. The raison d'être of the second chamber here is to represent highly decentralised units, namely the regions, provinces, etc. It is easy to see that it would be in the interest of any state wanting to follow the devolution route to have its territorial units represented in this second chamber. It is the model used by most European countries, in which the second chamber generally represents the territorial units, these being elected either directly or by a hybrid method (direct and indirect).

Having postulated these premises, we still need to ask ourselves what purpose a second chamber can serve. It represents the territorial units or other parties. The second chamber in Ireland, for example, includes six senators who speak for the universities and in Slovenia it represents the territorial units, economic operators and civil society too. There are other examples of rather unusual representation: national minorities or, in the French Senate, French nationals living abroad.

Ideally the second chamber should not have exactly the same composition as the first. I do not advocate following the example of Kazakhstan, where only graduates may sit in the second chamber. But we might envisage different modes of representation, based for example on age. By virtue of representing a given territorial unit or specific national group, the second chamber would be different in composition from the first chamber.

Its role would also be different. In most European countries, with the notable exception of Italy, second chambers have less power than first chambers when it comes to the budget, the right to initiate legislation and the right of amendment. However, sometimes this does not stop second chambers from having the power of initiative and thus playing an influential part in the life of the state, immune as they are to the imperatives of current events, media pressure and above all the risk that parliament may be dissolved.

Most second chambers are regarded as "councils of wise persons", who improve on the first drafts of legislation and ensure that legislative initiatives reflect what is really needed and are not just a short-term response to the demands of the moment.

In some parliaments the second chamber contributes original ideas. In the United Kingdom and in France too, the quality of legislation is enhanced by the work of the second chamber.

Even in countries with a unicameral system there is often "phantom" bicameralism, where unseen institutions operate behind the scenes as a de facto second chamber. This role is played in Luxembourg by the Council of State and in other countries by a group of experts comprising former ministers, former trade unionists and academics who are consulted before bills are voted into law. In Greece, the Scientific Council acts as a second chamber, reviewing all draft legislation before it is adopted.

I will end by quoting one of our eminent predecessors in the Senate and an expert in constitutional law. According to Professor Marcel Prélot: " In France, if the Senate is weak, the Republic is weak. If the Senate is strong, the Republic is strong. If there is no Senate, there is no Republic ".

These words could very well be applied to all the countries of Europe, apart from the very small states.

Ms Michèle ANDRÉ

I now hand over, without further ado, to Mr Bruno Frick, member and former President of the Swiss Council of States.

Mr Bruno FRICK (Switzerland), member and former President of the Swiss Council of States

Thank you, Madam Chair.

Ladies and gentlemen, I would like, if I may, to talk to you about Switzerland. It is an honour for me to be here at the heart of Europe. Switzerland has been a member of the Council of Europe since the very beginning. But it is not a member of the European Union

I have been asked to describe the role of the senate in Switzerland. The senate is our second chamber, known in my country as the Conseil des Etats or Ständerat , the "Council of States". Federalism and the Senate, along with direct democracy, are the two characteristics of the Swiss political system.

I shall start by describing federalism in Switzerland and the way in which power is shared. I will then give you the background against which the Senate functions and works. And, lastly, I will outline and comment on a number of proposed reforms.

Federalism as understood by the Swiss is a system of power-sharing between federal and cantonal levels, whereby the cantons are able to have an input into federal policy. Federalism applies the subsidiarity principle, namely that powers and responsibilities must be exercised at the lowest possible tier of government. Tasks are performed at the highest level only where necessary and for political or organisational reasons.

So Swiss federalism is based on power, implementation and the right to initiate legislation. The new Federal Constitution, which came into force eight years ago, gives greater powers to the cantons. Any reversion to federal power requires a change to the Constitution, voted for by a majority of the population and the cantons.

Since the new Confederation came into being over 160 years ago, some responsibilities have been transferred to the federal level. But the Swiss cantons are self-governing and as such have substantial powers: they are responsible for policy on health care, education, policing, public safety, the courts, culture and road maintenance. They raise their own taxes, which are based on income and assets, and this creates a degree of fiscal competition amongst the cantons, encouraging the cantons to keep their policy costs down. This power-sharing is a fundamental pillar of the Swiss political system and offers numerous benefits.

The Swiss population is made up of numerous regional, cultural, linguistic and economic minorities, which, in our view, are best able to exist and develop within a federal state. Because their interests can be represented in the Senate, this has the same power as the lower house. The cantons thus have relatively significant power in federal matters. It is what we call the "implementation of federalism". This means the authorities are far closer to the people. The system works well in many areas such as social security and the payment of benefits, but it also generates heated debate, on the question of asylum, for example.

In matters affecting the Constitution and federal law the cantons have the right to take part in the legislative process. This is what we call the federalism of initiation. Thus a majority of the cantons can force a change to the Constitution. They also have a say in the country's foreign policy decisions. The Confederation cannot introduce new laws without first consulting the cantons. Article 150 of our Constitution says that the Senate is made up of 46 representatives of the cantons; it is an organ of the federal state, not an organisation of the cantons.

Each canton has two representatives elected by the people. But do they represent the cantonal government, the cantonal parliament or the people of the canton?

In fact they represent their canton and are chosen under cantonal laws, but they are accountable only to the people. This is the main difference between our system and that of the German Bundesrat , which represents the Länder . Senators may represent and uphold the interests of their cantons in a number of ways. They may serve on committees, put a number of proposals to parliament and exercise their influence through speeches, media interviews and contacts with members of the government and by networking.

Every senator belongs to a party, but also to interest groups. Senators earn their living by "representing". As under the US Constitution, each canton is represented by two members. This places all the cantons on an equal footing. So, depending on how the cantons are structured, a region with a population of 400 000 may be represented by ten senators whilst one with a million people (Zurich) has only two senators. Minorities are fully represented in political life. Thus the interests of the various regions and languages are protected, ensuring a proper balance of power between the Senate and the lower house. Because the Senate is the second chamber under the Swiss federal system, it has the same powers as the lower house. In other words, its function is not to slow down the legislative process but to ensure that it is understood better and that cantonal interests are properly safeguarded. The two chambers thus have equal status.

Our system is highly sophisticated. It allows us to resolve differences between the two chambers, to overcome conflicts by efforts at compromise. Swiss politics are very much geared towards compromise: majorities and minorities always reach agreement in Switzerland. Our system guarantees balance in our legislative and parliamentary work and reciprocal scrutiny.

Let me move on now to the status of the Senate. It is a chamber of the federal parliament, but not a cantonal organisation. Unlike the cantonal parliament, the Senate is an emanation of the federal state. The Senate implements federal policy and takes into account the interests of the cantons. But in the event of a conflict, it is very important to prioritise the federal interest. Yet the work of the Senate is not confined solely to matters of national interest: it also upholds Swiss interests at international level, but from the viewpoint of the cantons.

Relations between Switzerland and the European Union are based on bilateral agreements. Representatives of the cantons are involved in this bilateral process. Where multiple interests are at stake it becomes necessary to have an anchor point, in this case the canton. This is the basis of the Senate, in which elected representatives of the cantons sit. So it is possible to have formal and informal meetings between representatives of the cantons and other bodies and government departments.

I will end by mentioning the realistic alternatives to the Swiss Senate in its present form. For the last five to ten years, political analysts have been saying that the Senate is in urgent need of reform. But the people of Switzerland think that the second chamber is far more important than the lower house. They see it as more balanced and better able to resolve problems.

A number of constitutional reforms have been proposed. First, a change in the composition of the Senate was mentioned, the solution being to have three representatives for the big cantons, two for the medium-sized cantons and one for the small cantons. Next, a large conference of all the cantonal governments was suggested. Then it was proposed that the Senate be transformed into a chamber of the cantons on the Austrian model. None of these proposals came to anything, because our system is extremely sound and robust. It is a bit like a copy of the US system, but adapted to the realities of Switzerland. We are keen to stick with it.

I will conclude by making five points.

In Switzerland, the Senate is on an equal footing with the lower house, although its members are elected differently. Our federal system is neither rigid nor set in stone. It is fully open to reform at regular intervals.

The Senate is an essential instrument of Switzerland, representing cantonal interests at federal level. But its members are independent and are not instructed by their cantons.

The Senate is an organ of the state. It thus has a duty to find answers to questions arising out of the federal political system, whilst at the same time upholding the interests of the cantons.

The Senate as a body and its senators always take decisions with due regard for cantonal interests and the federal interest, but also for the interest of parties and associations. They try to put forward balanced solutions to all problems.

We do not think a radical and brutal reform of the Senate would make for a better system. The one we have now is the right one and will continue to be for another hundred years.

Thank you, ladies and gentlemen.

Ms Michèle ANDRÉ

Thank you, Mr Frick. I now call on Ms Orlova, for the Russian Federation.

Ms Svetlana ORLOVA (Russian Federation), member of the Congress of Local and Regional Authorities of the Council of Europe, Deputy Speaker of the Council of the Russian Federation

Madam Chair, ladies and gentlemen,

Our topic today is a highly important one. The bicameral system as seen in Russia is altogether justified. Over the last fifteen years it has achieved a high calibre, with improved relations between the federal centre and the regions. But let us talk a bit about the history of Russia, just as Mr Frick has talked about Switzerland.

Russia's state Duma has just celebrated its one hundredth birthday. In 1906, under Tsarist rule, a bicameral system was introduced. This continued until the birth of the Soviet Union. As far as modern-day Russia is concerned, the Constitution of the Russian Federation, adopted on 12 December 1993, strengthened the bicameral status of our parliamentary system. Under the Constitution, the country is a federal state, made up of 86 subjects. But three subjects have left it latterly. A number of districts have merged, notably Irkutsk with its neighbouring region, and Kamchatka with another region. The three subjects left the Federation following a popular vote in a referendum.

The federal structure of the Russian Federation is based on territorial integrity and unity of the system, on a separation of powers in respect of the areas dealt with by the various organs of state and the prerogatives of the various institutions of the Russian Federation and organs of its subjects.

As far as relations between central government and the organs of the federal state are concerned, it should be noted that the subjects of the Russian Federation enjoy equal rights. The Russian Federation has two representatives for each of its subjects: one representing the organs of power and one representing the executive of the Federation's subjects. The Federation Council is based on laws, and a series of amendments was adopted last year. Meetings of the Council are held in public and broadcast direct over the Internet.

There are 17 committees and 9 commissions, and public hearings are held on all topical issues in our society with the involvement of representatives of the regions, the general public, civil society, municipalities, mayors, and so on. We deal with the most pressing issues. The President of the Russian Federation and President of the Constitutional Court deliver their message to a joint session of the two chambers.

I shall give you a quick overview of some of the matters which the Council of the Russian Federation deals with. Firstly, it confirms border changes between subjects of the Russian Federation and Presidential decisions to take the country to war or declare a state of emergency. It also authorises the deployment of national armed forces outside the country's borders. It sets the dates for presidential elections, appoints judges to the Constitutional Court, the Supreme Court and Supreme Arbitration Court, and appoints and dismisses the Principal State Prosecutor. The Principal State Prosecutor submits an annual report to the Federation Council, which comprises representatives of the regions, civil society and the various nationalities making up our country. We view the publication of this document as a highly important event.

Federal laws passed by the lower house are then forwarded to the Federation Council, which either approves the law passed by the Duma , or rejects it. For example, nine Bills on essential public services - social services - have been referred back to a conciliation committee. This looks again at the laws, which are then submitted to the Federation Council for reconsideration and subsequent adoption.

The Federation Council debates the broad lines of the country's development policy. The main aim is to render operational all the machinery required to carry through our social and economic policies. Mr Putin, President of the Russian Federation, delivers an annual message to a joint session of the two chambers, plus the 17 committees and 9 commissions. Twice a year we meet the President to review the outcome of our spring and autumn sessions. We maintain a highly constructive dialogue with the President's office. We deal with matters which are essential to the Federation, ask for clarification of draft legislation and initiate legislation ourselves, as that is one of our rights.

During the current session, we have considered 600 items of draft legislation and put forward 40 proposals for technical regulations on behalf of the Federation Council. The legislative base was thus prepared by the Council and adopted by the Government. It was laid before the Duma in the form of draft laws.

We were also the instigators of an important law designed to counter corruption in our country. This is the 1994 law on state and municipal property. In some parts of Russia projects to a value of 3 trillion roubles are put out to tender. Competitive tendering keeps the costs down. A public portal is to be opened for anyone wanting to tender for municipal services. We want to have maximum transparency.

For Russia, a federal state, it is essential to separate the powers and prerogatives of the two chambers. I am grateful here to the Congress of Local and Regional Authorities and its President, Mr Halvdan Skard. We have in fact brought about this separation. Today, 67 states of the Federation are beginning to implement the new law. We hope the other regions will follow suit.

Russia is currently subject to a monitoring process. We produced a report on the subject last year. In 2006 the Congress of Local and Regional Authorities held a meeting in Moscow, which was opened by Mr Medvedev. Numerous questions were put to him on that occasion. A salient point in his replies was that power resides not in the Kremlin, but in the grass-roots, in the regions, towns and villages. The separation of powers works very well, and so does the subsidiarity principle. I can announce here that we intend to give more powers to the regions over the use of their land and forestry resources.

Members of the Federation Council also sit on the various councils set up to assist the President of the Russian Federation. There are several of these, including one on national projects. As you will be aware, we are developing national projects on health, education and agriculture. Russia is now doing very well in these essential sectors.

In addition to the council of local and regional authorities, other councils have been set up to assist the President and representatives of the regional authorities, one of them with a remit to prepare for the 2014 Olympic Games. These councils, which answer to the President, may also be very influential in decision-making. We are also able to uphold the interests of the regions.

Members of the Federation Council also sit on the councils which exercise scrutiny over the Central Bank. Two state-run concerns have been set up to reform the Bank's building stock and introduce new technology. A Council of Legislators has also been in operation in the last three years. This brings together all the representatives of the legislative organs of government, who meet several times a year to discuss all the main issues of the day. President Putin attends two meetings of this council. A meeting, attended by the President's representative and Mr Medvedev, was held just before the New Year on modernising and developing the national education system. Three universities have been founded, in Krasnoyarsk, Rostov-on-Don and Vladivostok.

We have earmarked 2 trillion roubles for the development of health care. Spending to modernise health and education has been increased by 26% in recent years. Per 1 000 head of population, Russia is the country which has the best quality of life. On all essential matters Parliament is required to act. All schools in Russia are connected to the Internet, incidentally.

We have the ability to pass very good laws, but they are not always implemented efficiently. For this reason the Federation Council is, this year, conducting its third in-depth review of the legislation.

Reports on the current implementation of our laws are compiled by the judges at the arbitration courts, the Supreme Court, our Human Rights Commission and various representatives of civil society. These detail the outcome of our efforts and enable us to see how the laws are being implemented and how we can do more to resolve the problems encountered by the population. It is vital to scrutinise implementation of the laws.

Only yesterday we forwarded draft laws to the Speaker of the Federation Council, who laid them before the Russian President. He will consider them and issue the requisite instructions. So we regard it as essential to monitor how the laws are implemented.

How can our work be evaluated? We manage to introduce economic indicators and social indicators such as the improvement in our people's standard of living, but we need to extend and improve the rule of law in Russia.

Last year we prepared a report on the position of children, some of whom are victims of violence and endure difficult family circumstances.

And how do we work with the Government? As I said before, we meet twice a year to review the outcome of our spring and autumn sessions. We also hear the principal ministers and take a series of decisions on the basis of what they tell us. And lastly, we make sure that our work is acted upon.

And for the second year in a row we have organised open days showcasing the subjects of the Federation. Representatives of the region of Ryazan, Nizhny-Novgorod, the Altai district and civil society took part. On that occasion a big exhibition was put on at the headquarters of the Federation Council. All participants contribute to these events, along with the governors of certain territories and the President of the Council of Legislators. The various speeches are listened to with keen attention.

How have we resolved our social problems? What are the difficulties encountered by particular regions? What are their main features? These questions have to be answered because we need to obtain results and be seen to have done so. This is why we see these open days for the subjects of the Federation as essential.

Internationally the Federation Council follows a number of policy priorities. We hosted the 15th annual meeting of the Asia-Pacific Parliamentary Forum, which was attended by twenty participants, including parliamentary leaders from countries in the Asia-Pacific region. A future meeting will be held in Vladivostok. So I invite you all to come to St Petersburg, but also to the Vladivostok meeting. We think it is essential to keep considering all manner of issues together.

In conjunction with the Congress of Local and Regional Authorities we also, for the first time, organised a Congress on road safety, focusing on life-saving measures and practices. This was held in St Petersburg. The theme is one that concerns us all. In Russia there are 24 000 road accidents a year. For this reason we have tightened up the law and cracked down on road traffic behaviour. We want everyone to buckle up before getting behind the wheel. We have also instigated a programme to improve road safety. So we hope that the next meeting on this subject will take place in Russia. I must express our gratitude to the Congress of Local and Regional Authorities, which made a major contribution here.

Russia is part of the G8 now and is experiencing fast economic growth, at a rate of over 8% a year. It has introduced successful national programmes in three priority sectors, innovation, social security and the economy. We are also developing a strategy to make us one of the world's top five industrial nations by 2020. Our debts have been paid off and we are working to increase our provision of new housing, with 22 new satellite towns built so far in Russia. A short time ago we organised a meeting on sustainable development and the creation of new towns.

Obviously we are eager to focus on technological innovation and to change the face of the Russian economy; we hope to win a 12% share of the world market in this sector. We are giving priority to a whole series of innovative technologies such as the use of hydrogen as an energy source and the development of nanotechnology. The Russian economy is a heavy user of energy, and the Federation Council is working on a Bill to promote energy-saving, along with a set of technical regulations. An innovation fund has been set up to improve the well-being of the population. Another fund has been set up for abused children.

To sum up, Russia's bicameral parliament has fully justified its existence. The Russian President has announced that 2008 is the Year of the Family. There are plans for numerous draft laws aimed at improving the lot of families and we are happy to share our experience in this area. We regard bicameral systems as essential. Russia's experience emphatically proves it.

Thank you, ladies and gentlemen.

Ms Michèle ANDRÉ

Thank you, Ms Orlova. I now call Mr Aristide Roibu, Senator and President of the France-Romania Friendship Group.

Mr Aristide ROIBU (Romania), Senator, President of the France-Romania Friendship Group

Madam Chair, ladies and gentlemen,

It is my pleasure to give you an outline of the role of the Senate in Romania's bicameral parliament.

The debate on bicameralism and the diversity of second chambers in present-day parliamentary systems is of particular interest to all democratic systems in Europe, especially in terms of the way in which social, economic, political and regional interests are represented through the Senate.

The choice of a one- or two-chamber parliamentary system is the outcome of specific historical conditions and circumstances.

After the 1858 Paris Convention, the Romanian principalities held a plebiscite instigated by Prince Alexandru Ioan Cuza, adopting a constitutional "Statute expanding the Paris Convention", which provided for the formation of a new parliamentary chamber alongside the Chamber of Deputies.

This Statute introduced a bicameral legislative system, made up of an elected assembly and a Senate to counterbalance it. A Commission of 1866 placed the bicameral parliament on a modern basis, similar in organisation and workings to comparable institutions in Western Europe.

After World War II, parliament and the entire constitutional system of Romania were restructured, in line with the model of totalitarian government. The Senate was thus dissolved in July 1946.

When the system of power was replaced in December 1989 and the new Romanian Constitution was adopted in 1991, the country was able to return to its tradition of a bicameral parliament that was truly representative and consistent with rule-of-law standards.

In choosing the bicameral formula, the Constituent Assembly of 1990 saw fit to introduce a system of complete equality between the powers of the two chambers. This equality got in the way of an efficient legislative process and the passing of some laws became slow or impossible as a result.

In 2003 the 1991 Constitution was therefore revised to differentiate between the respective powers of the Chamber of Deputies and the Senate. Under the revised Constitution, the negotiation committees were abolished, and the two chambers have since been able to pass laws efficiently and sufficiently quickly.

The Constitution stipulates which chamber has an item of draft legislation laid before it first, depending on the law's category. Under the legislative process, for a given category of draft legislation, one chamber is thus the first chamber to consider it, whilst the other chamber takes the final decision on it.

The first chamber to consider a draft law or legislative proposal must adopt or reject it within 30, 45 or up to 60 days, depending on the category or complexity of the law in question. If these deadlines are exceeded the draft law (or legislative proposal) is deemed to have been adopted.

The Senate's most important role is in relation to those laws on which it has the final say. As a rule the Senate's powers as a decision-making chamber are exercised in the context of a number of institutional laws, namely those concerning the:

- independence of public services, radio and television and scrutiny of their activities by parliament;

- definition of civil service categories whose officials may not belong to political parties;

- definition of the requirements concerning military service and national defence;

- organisation and functioning of the office of Ombudsman;

- organisation of the government and Supreme Council for National Defence;

- management of administrative disputes;

- organisation and functioning of the Judicial Service Commission, the courts, the public prosecutor's office and the auditor-general's department;

- general organisation of education;

- organisation of local public administration, and the general rules of local self-government;

- appointment, organisation and functioning of the Legislative Council, parliament's specialist consultative body;

- establishment of the structure of the government;

- establishment of cases in which members of the government are not eligible for office, other than those envisaged in the Constitution;

- establishment of central self-governing administrative authorities;

- establishment of the structure of national defence, civil defence preparations, and the status of military personnel and other elements of the armed forces;

- in the administration of territorial units where significant numbers of the population belong to a national minority, protection of that minority's right to use its language orally and in writing in dealings with the local authorities and the services of devolved government;

- establishment of the membership of the Supreme Court of Cassation and Justice and its rules of procedure;

- appointment of judicial bodies with expertise in specific areas, which may, depending on the case in question, include persons who are not members of the judiciary. Romania's Constitution prohibits the creation of courts of exception.

Under this procedure, the first chamber before which the draft law or proposal is laid adopts or rejects it. It is then sent to the other chamber, in this case the Senate, which takes the final decision on it. Exceptions to this rule may arise if the first chamber responsible adopts a provision falling within its competence; the provision is definitively adopted if the second chamber agrees. If it does not, the law is referred back to the first chamber, which takes the final decision, solely in respect of this particular provision, under an urgent procedure. The rules on referring back the law apply mutatis mutandis when the second chamber adopts a provision which must be decided on by the first chamber.

The Senate also has specific powers introduced by the 2003 revision of the Constitution: it confirms the appointment of members of the Judicial Service Commission who are elected by the General Assemblies of Judges, it appoints the two members of the Judicial Service Commission who are drawn from civil society, and it appoints three judges to the Constitutional Court.

If asked to do so by the President of the Senate or at least 25 senators, the Constitutional Court must pronounce on the constitutionality of laws before they are promulgated and on the constitutionality of treaties or other international agreements. Regarding the role of the Senate in representing the regions and local authorities, the Constituent Assembly did not endorse the idea of Romania being organised into large administrative regions including a number of administrative sub-divisions. The Senate does, however, have power to take decisions on how local public administration is organised in terms of the general system of self-government and the basic principles underlying local public administration. In fact, although the Constituent Assembly has not given the Senate an express remit to represent local authorities and the regions, it has retained its decision-making power in these areas.

Ms Michèle ANDRÉ

I now call on Mr Ilija Filipoviæ, President of the House of Peoples of Bosnia and Herzegovina.

Mr Ilija FILIPOVIÆ (Bosnia and Herzegovina), Speaker of the House of Peoples

Madam Chair, ladies and gentlemen,

I am honoured to be asked to this conference and I thank you most sincerely for your invitation, which demonstrates your interest in Bosnia and Herzegovina, a country which came into being as a result of the Dayton Agreement. You are keen to know about the bicameral system of the Parliamentary Assembly of Bosnia and Herzegovina and how the country's territorial units are represented. I shall endeavour today to describe the constitutional structure of my country and explain how the House of Peoples, the upper house of Bosnia and Herzegovina's Parliamentary Assembly, works.

We do not have a long tradition of parliamentary democracy, or any great experience of bicameralism, unlike those countries which have a long parliamentary history. But amid the diversity of political systems, the example we offer is perhaps a particularly interesting one. We need the understanding and support of other European countries, of your democracies, in our efforts to find new solutions which will allow our country to function properly and thus enable the Parliamentary Assembly of Bosnia and Herzegovina to operate more efficiently.

The constitutional position of Bosnia and Herzegovina is very complex. You will be aware that Bosnia and Herzegovina has a Constitution, set out in one of the twelve annexes to the Dayton Peace Agreement signed in Paris (Annex IV). This Constitution has never been examined and ratified by the parliament of Bosnia and Herzegovina. So it has never been published in my country's official gazette. Some attempts have been made at partial revision of the country's Constitution in the form of amendments, but all of these failed because the parliamentary majority required to vote them into law was not attained.

Numerous well-founded criticisms and comments in respect of the current constitutional structure of Bosnia and Herzegovina have been made by constitutional law experts, both locally and abroad. Some have been made very persuasively by the Venice Commission. The Commission warned the authorities in Bosnia and Herzegovina about the poor constitutional and legislative solutions adopted for elections to the country's presidency and the Parliamentary Assembly's House of Peoples.

The main, and virtually unanimous, objection is this: the political system provided for in the Constitution is not workable and prevents the state of Bosnia and Herzegovina from functioning as a normal and democratic country without help or mediation from the international community.

The internal division of Bosnia and Herzegovina into two separate entities, the (Croat-Muslim) Federation of Bosnia and Herzegovina and the Republika Srpska , is reflected in the structure and workings of the Parliamentary Assembly. This division is in substance totally inconsistent with the ethnic structure of the population. Bosnia and Herzegovina is defined by the Dayton Peace Agreement somewhat absurdly as a state created for three ethnic groups, but constituted in two entities for those three constituent ethnic groups. This constitutional definition does not give the three ethnic communities equality before the law, and without such equality Bosnia and Herzegovina has no guarantee of an assured or prosperous future. This complexity influenced the need for a House of Peoples, not only at national level but also for the two entities. However, different solutions have been reached for the two entities since there is no House of Peoples as such in the Republika Srpska . Instead, a special Council of Peoples operates within the unicameral National Assembly, with a different role and different powers. So in Bosnia and Herzegovina one entity has a bicameral parliament whilst the other has a unicameral parliament, and this adds to the inequality and asymmetry of the political system.

The bicameral parliament of Bosnia and Herzegovina is the smallest in Europe. Its two chambers together have only 57 members. The House of Representatives has 42 members and the House of Peoples, based on the structure of the entities, has 15. In the latter, 10 members represent the Federation of Bosnia and Herzegovina and five the Republika Srpska . So each of the constituent ethnic groups has five seats. Since it is rigorously prescribed that the chamber must consist of five Bosnian Muslims, five Croats and five Serbs, no provision is made for the structure of the chamber to include any representation - however small - of minorities. That is at odds with the principle of non-discrimination, enshrined in the Constitution. Candidates are nominated and elected as representatives of the peoples in the two entities. In the Federation of Bosnia Herzegovina these members are elected by the Federation's House of Peoples, whilst in the other entity they are elected by the Republika Srpska 's National Assembly.

The chief function of the House of Peoples in Bosnia and Herzegovina is to guarantee equality across the nation and protect the vital interests of its peoples. Unlike other parliaments, where the upper house represents the interests of the territorial units, federal or local, the House of Peoples in Bosnia and Herzegovina protects the vital interests of the three constituent ethnic groups.

In principle the House of Representatives and the House of Peoples are equal before the law, since each of them considers and adopts all draft legislation and they both have the same legislative power. But in practice the House of Peoples is more like a supervisory body since its main duty is to safeguard the vital interests of the three constituent ethnic groups. This means that laws are passed only if the House of Peoples votes them through in the same way as the House of Representatives has done. If a majority of a parliamentary group in one of the three constituent peoples pleads protection of a vital national interest, the draft law is rejected. The Constitutional Court of Bosnia and Herzegovina must then decide whether or not there has been an infringement of vital interests. Personally, I think this would be better dealt with in the House of Peoples than in the Constitutional Court.

All this shows that a bicameral parliament - and in this case the House of Peoples - is especially necessary in countries which are ethnically complex, like Bosnia and Herzegovina.

I think the vital national interests of each constituent ethnic group in Bosnia and Herzegovina need to be safeguarded. But I agree with the Venice Commission that those interests have to be defined, restricted and used in moderation and only in a limited number of cases. That is the most important task of the House of Peoples of Bosnia and Herzegovina's Parliamentary Assembly. The chambers have to be equal in every respect. I am in favour of total equality between parliamentary chambers and an adequate sharing of roles, powers and responsibilities between them. And in multiethnic countries vital national interests must be adequately safeguarded, not only at national level but also at the level of the territorial units. These safeguards must also be given not only to the three constituent ethnic groups, but also to national minorities to ensure that their status is protected along with their rights to cultural autonomy and all other forms of autonomy, as enshrined in the European conventions and other documents.

It is essential, in our conference today, to look at the law as it applies to territorial units and local self-government. These units and their local powers perform the important role normally filled by parliamentary government and democracy. And they are more important still as places where citizens can participate directly in the exercise of local power, resolving at local level the everyday issues that arise. The criticisms levelled at the Constitution of Bosnia and Herzegovina which emerged from the Dayton Agreement show that the Constitution is not clear enough, especially as regards the treatment of the territorial units of local administration and self-government. The national Constitution omitted to cover this question, which has been dealt with exclusively by the entities in their respective Constitutions. As a result, the House of Peoples of the national parliament cannot represent the territorial units, and they are represented by the House of Peoples of the Federation of Bosnia and Herzegovina and the Council of Peoples of the Republika Srpska . This Council is not the upper house of the Republika Srpska 's National Assembly, but a kind of committee on inter-ethnic relations.

From all these observations it will be apparent that the representation of territorial units, in the House of Peoples of Bosnia and Herzegovina, cannot be considered at national level, but solely within one of the two entities. At the same time the only local authorities in Bosnia and Herzegovina are currently the municipalities and towns or cities. In the Constitution of the Federation of Bosnia and Herzegovina, the cantons are defined as the federal units of that entity.

The Constitution of the Federation of Bosnia and Herzegovina provides a better solution for the House of Peoples than that of the Republika Srpska . It regards the municipalities and towns or cities as being the only territorial units of self-government - there is no lower level. Our Constitution does not recognise regions or any other wider form of local self-government, except insofar as the term "region" is used to designate the current entities in which the three constituent ethnic groups have been "lumped together".

It is also interesting to note that the House of Peoples of the Federation of Bosnia and Herzegovina's parliament has more members than its national counterpart - 51 as opposed to just 15 at national level.

The main shortcoming in the Republika Srpska is that its Constitution, unlike that of the Federation of Bosnia and Herzegovina, does not provide for the House of Peoples to act as the upper house of that entity's parliament.

The general view is that changes to the Constitution of Bosnia and Herzegovina are necessary because, with a Constitution like this, the country cannot be stable over the long term and cannot prepare successfully for European Union membership. For this reason all the main parties in parliament have already put forward their own proposals for revision of the Constitution. The Croat parties in Bosnia and Herzegovina are especially interested. They have put proposals to the country's other political parties on fundamental principles for amendments to the Constitution which may serve as a sound basis for dialogue and reciprocal confidence-building.

Amendment of the Constitution would be a major step in helping the country to escape from its present impasse. The problem at the moment is that each political party upholds different interests and takes a range of views on constitutional change. It is effectively impossible to reach a compromise based on mutual trust. So one can say that Bosnia and Herzegovina is in a situation of ongoing constitutional crisis, which can only be overcome by a new Constitution that changes the precarious structure of the state, that is to say the system of entities imposed on it by the Dayton Agreement. Practical operation of this structure means that the country is increasingly divided, with each of the two majority ethnic groups dominating the administration of the entity in which it has a majority government. Meanwhile the third ethnic group, the Croats, does not have the equality to which it is entitled or its rightful position as a constituent group within the entities.

I shall be glad when Bosnia and Herzegovina is more like the developed parliamentary democracies, has adopted a new and modern Constitution modelled on European principles, and has become a country with a bicameral parliament in which the three constituent ethnic groups are treated equally, a federal country which has an intermediate level of power, and with a legislature, an executive and a judiciary, a country based on human rights and liberty for all.

Such a Bosnia and Herzegovina is possible and desirable. In a country of this kind all peoples and minorities, that is to say all its inhabitants regardless of their ethnic and religious group, will be able to make a decent living from their labour in peace, confidence and tolerance, in an egalitarian and dignified manner. Your experience will be very helpful to us here. With your help we can create a better Bosnia and Herzegovina that is no longer ravaged by internal conflicts and becomes a state with a better constitutional structure that gives it lasting stability and allows it to be the equal of the other countries in the European fold.

Thank you, ladies and gentlemen.

Ms Michèle ANDRÉ

We wish you every success in your aspirations, Mr Filipoviæ.

Ladies and gentlemen, I am afraid we do not have time to move on to questions. But I can take a few brief ones. When you put your question, please say who it is intended for. Thank you.

From the floor

My question is for Mr Filipoviæ. Can you tell us, in connection with Bosnia and Herzegovina, a little about the situation of the enclave of Brèko?

Mr Ilija FILIPOVIÆ

That is a very interesting question. It relates to what I said about the organisational structure of Bosnia and Herzegovina being very complex. The district of Brèko, part of Bosnia and Herzegovina, demonstrates real asymmetry. It ought to be seen as a third entity within the country. It has its own government, parliament and judiciary. It is located partly in the Federation of Bosnia and Herzegovina and partly in Republika Srpska . The district of Brèko is under international supervision, like the whole of Bosnia and Herzegovina, where the international community's High Representative, who monitors the work of the authorities, is based.

In other words, your question confirms the existence of asymmetry in Bosnia and Herzegovina and shows the ridiculous nature of the constitutional structure based on the Dayton Agreement. You will have an idea now of the multiple forms of government we have in the country. Bosnia and Herzegovina, as such, needs changes to its Constitution that are based on the democratic principles of the European countries and respect the rights of the three constituent ethnic groups in Bosnia and Herzegovina.

Ms Michèle ANDRÉ

Are there any further questions?

From the floor

My question is for Mr Frick of the Swiss Confederation. I think I read that some people are members of both chambers, the Council of States and the federal National Council. Is that right?

I would also be interested to know what the voting discipline in the Swiss Parliament is.

Mr Bruno FRICK

I can answer both questions. Is it possible to have a dual mandate? In Switzerland the rule is as follows: members of the federal government may not be members of either of the two houses of parliament. They may not be members of the Council of States or one of the higher courts. There is thus a separation of powers since such office is not compatible with membership of the executive, legislature or representative power. Members of one chamber are also disqualified from being members of the other. But some individuals, at cantonal level, hold office in the government. The same applies in France, where the mayor of Bordeaux also sat in one of the two chambers.

On the matter of voting discipline, the Swiss Constitution allows all members of parliament complete freedom to vote as they wish. We vote according to our consciences. That is not to say that there is no party discipline. Everyone votes as he or she sees fit. In the National Council the party line is more markedly adhered to.

The other question is how the parties can enforce voting discipline. This is done more in the extremist parties, less in the centre parties, where the individual is allowed more freedom.

Ms Michèle ANDRÉ

Thank you, Mr Frick.

We will now take a quick break, ladies and gentlemen.

Mr Skard will then chair part two of our round table discussion.

Thank you for your attention, ladies and gentlemen, and thank you to our speakers for sharing their expertise with our very appreciative audience.

Chair: Mr Halvdan SKARD, President of the Congress of Local and Regional Authorities
of the Council of Europe