If we believe that parliamentary majorities need to be limited, should that limitation (as stipulated in the constitution) be enforced by a specialized court (with all state powers appointing members that fulfill the requirements of kafâ’ah), or a more “political” body like a second chamber? Or both?
The extremely low turnout in the recent elections for the Magles al-Shura, and the dim role that this Magles has played since its establishment in 1980 are generating a heated debate over the need for a second chamber in the new constitution. Instead of focusing on the discouraging past record of the Magles, I argue that the choice should be based on any of the functions that a second chamber can perform, and on that basis design the future Magles’s composition and powers. If none of the possible functions of second chambers is regarded as desirable, then the bicameral experience should be terminated.
Second chambers - comparative experiences teach us - limit the operation of the democratic principle, and they do so either by entrenching cleavage privileges or by compensating for undesired effects of equal representation. Both sub-functions are utterly undemocratic, but let us not shy away from this consideration; the purpose of a constitution is precisely to limit the power of majorities and provide for effective accountability. Is this what we want?
If we believe that parliamentary majorities need to be limited, should that limitation (as stipulated in the constitution) be enforced by a specialized court (with all state powers appointing members that fulfill the requirements of kafâ’ah), or a more “political” body like a second chamber? Or both?Democracy is always at risk of turning into tyranny, and needs to be restrained - as both Plato and Aristotle warned us many centuries ago. Second chambers can be either designed to avoid that risk or, conversely, to void the participation of people in government - as the record of the dissolved Magles al-Shura has proved.
Functions of second chambers changed dramatically when constitutions started being regarded as binding documents enforceable in courts. Before that, chambers were the only institutional form of (political) limitation to the powers of the monarch. Where no such limitation existed, the system was described as an absolute monarchy, whereas if chambers had rights to oppose government policies, the system was described as a limited monarchy or a mixed government, based on the various possible configurations of powers: monarchic, oligarchic, democratic.
At first, membership in parliaments - yet undivided into chambers - was based on entitlements, and was later extended to encompass other classes or orders within society (notably clergymen and townsmen). Membership in both the English Parliament and the French Estates General was class-based and included noblemen, clergymen and townsmen.
When the lower class, the townsmen, started meeting separately and constituted a new body, what was left of previously general assemblies was identified as a second or upper chamber.
What advantages does a second chamber bring to the table, if it is just a replica of the first chamber?The offshoot of a first or lower chamber was in the English case occasioned by the King (Edward I, in the late 13th century), who saw the advantages of negotiating with the “lower” class - the commoners, hence House of Commons - on a separate basis. In the French case, conversely, the offshoot was occasioned by the decision of the “lower” class - the townsmen or burgeoisie - to meet separately due to the deadlock in deliberations in the Estates General (on the eve of the French Revolution, in the late 18th century).
With the extension of voting rights, “lower” or first chambers strengthened their democratic legitimacy, whereas “upper” or second chambers maintained their role of conservative or moderating factors based on oligarchic legitimacy. The more the intended conservative or moderating factor, the more the powers of “upper” or second chambers were equal to those of “lower” or upper chambers. Where the agreement of both chambers was required for any bill to become law (egalitarian bicameralism), the limitation of the democratic principle by the oligarchic one was evident.
The Belgian constitution of 1831 serves as a good example of this instance of egalitarian bicameralism and served as a model for many constitutions, including the Ottoman basic law of 1876 and the Egyptian constitution of 1923. Membership in the “upper” or second chamber was still based on class (requiring a minimum tax contribution), yet the element of representation was introduced (senators were no longer hereditary peers as in England, but were fully elected in Belgium and partially in Egypt - with the monarch still retaining appointment of two-fifths in the latter). Oligarchic legitimacy, besides the tax contribution requirement, was also maintained by the higher age requirement to be a senator (40 years both in Belgium and in Egypt), and belonging to certain “classes” (tabaqât) in Egypt (including state officials, religious authorities, high members of the judiciary and the army).
Arguably, egalitarian bicameralism - by providing a safeguard against the democratic principle - paved the way for the extension of voting rights to reach universal suffrage because of its conservative or moderating functions. Universal suffrage, in turn, strengthened the claims of people’s full participation in the decision-making process. As the democratic principle started showing its full potential, the traditional political functions of second chambers were supplemented by legal limitations enshrined in codified constitutions and enforced by (specialized) courts.
A second chamber can be a useless replica of the first chamber, instrumental to full representative democracy, or a deceitful way of the executive to reign in the legislative.In the Middle Ages, constitutions used to be regarded as entailing little more than moral (read: political) obligations, and they were certainly “not fit for the tongue of any lawyer” - using one of the witty expressions of the early 13th century English jurist Henry de Bracton. Over the centuries, however, constitutions started to be seen as “fit for the tongue of lawyers”. Not just “any lawyer”, though. It was clear that interpretation and enforcement of constitutions entailed political considerations that legal theorists did not deem appropriate for ordinary courts of law whose job was to simply “apply” the law - without interpreting it! When devising a centralized, specialized body to interpret and enforce the constitution, 20th century legal theorist Hans Kelsen structured a court whose members were men of law, but selected by state powers on political grounds. The 1920 Austrian model, for instance, stipulated appointment by the Federal President, but on the basis of lists prepared by the government and the federal and national chambers of Parliament (one third of the court members each).
The emergence of specialized constitutional courts operating judicial review, arbitrating among state powers and deciding on charges brought against the Head of State introduced an enforcement system of the constitution that favored the legal over the political - a political balance previously guaranteed by second chambers.
However, the involvement of all state powers in the selection of members in such courts proves that political considerations were not overlooked, and the appointments can be regarded as political appointments. It should be clear by now that constitutional courts started looking very much alike second chambers, and performed many of the same functions.
If we consider the decision on charges brought against the Head of State, such a function is performed in continental systems by a constitutional court (variously integrated) and in the Anglo-Saxon systems by the second chamber (House of Lords in England or the Senate in the United States).
The general decrease in the number of second chambers over the past few decades needs to be associated to the increase in the number of (specialized) constitutional courts. Systems that have maintained a second chamber tend to be federal. There is nothing ineluctable about any system of multi-level government not having a second chamber, however. Federal systems can operate with a unicameral (federal) legislative body and a constitutional court adjudicating on federal/state conflicts.
Most federal systems, however, opted for the entrenchment of (territorial) cleavage privileges in a second chamber. When states pool part of their sovereignty in the federalizing process, they also try to retain some control over the process in terms of privileges - privileges to have their position count irrespective of size and thus preventing their remaining, unpooled sovereign powers from being chipped away by larger states.
At the 1787 Constitutional Convention, smaller states of the Confederation, headed by Delaware, were worried that proportional representation based on the size of the state’s population would force them to succumb to the pressures of larger states and called for a system of equal representation.
The “Great Compromise” was a bicameral Congress in which the first chamber was based on proportional representation and the second chamber on equal representation - equal here refers to states, not citizens, of course. Class-based representation has been supplanted by territorial-based representation, but the function of the second chamber as providing an entrenched position to particular, lesser constituencies holds. Equal representation of states in the U.S. Senate irrespective of state population is a case in point.
Unequal representation of sub-federal (state) units in a federal body can be traced back to the historical dynamics of the federalizing process; second chambers capture and perpetuate a moment of the federalizing process in which sub-federal units wielded more powers than the federal one, and they were in a position of negotiating terms of joining the Federation. The dynamics at the European level are similar when considering the changing roles of Parliament and the Council in the legislative process.
In unitary states, second chambers - where maintained - can still perform the same moderating (political) functions that they had performed before the enforcement of constitutions in courts, but justification of their limitation to the democratic principle is in order.
Not an easy task.
If second chambers draw their legitimacy from the same democratic principle of first chambers, then the replication argument seems not to be completely unfounded. Why do we need two chambers that are manned in the same way? What advantages does a second chamber bring to the table, if it is just a replica of the first chamber? Can we allocate our resources more efficiently? If the added value is simply the induced reflectiveness of the longer process, single chambers can adopt reading procedures in committees and plenaries or multiple readings that guarantee that decisions are well thought-out, without a second chamber.
In the process of limiting class-based representation, most experiences of second chambers have either been discontinued, and where members are elected in a very similar fashion to first chambers the debate over discontinuation is ongoing (as in Italy). Minor differences in age requirements for voters or candidates to second chambers do not appropriately dispose with the replication argument. The principle of aristocratic legitimacy seems to be dwindling also in its stronghold, where the hereditary peers summoned to attend the sessions of the House of Lords have been limited to 92 in 1999. A blend of elected and appointed members seems to be one of the most popular ways in which second chambers are currently manned, but appointment easily lends itself to abuses and structurally allows the appointing authority an unwarranted power over the lower house. A power that can be used to limit the fully democratically elected house, as the experience of the Magles al-Shura has proved since 1980.
Does Egypt need a second chamber? We are left with two preliminary questions. If we believe that parliamentary majorities need to be limited, should that limitation (as stipulated in the constitution) be enforced by a specialized court (with all state powers appointing members that fulfill the requirements of kafâ’ah), or a more “political” body like a second chamber? Or both? The issue of the legitimacy deficit resurfaces here, and with no convincing solution.
Democratic legitimacy seems to be the only reasonable foundation, since the historical, class-based composition of a second chamber resting on aristocratic legitimacy seems to have lost all its appeal and its demise unavoidably underway, even in a traditionally conservative system like the British. Modern democracy, however, is representative democracy. Hence the second preliminary question.
Do we identify structural failures in the way representatives are elected? Flaws in the representation process can be chiefly ascribed to the electoral or the party system. Flaws in the electoral system can be addressed in the legislation regulating it, but one could argue that there are only a limited number of possible categories whose representation can be guaranteed by working on the electoral system alone. If we think of quotas, for instance, how many sets of different quotas can we have? One for women, one for workers, one for peasants, for instance? The current system shows that when two groups are combined in a complex zebra-system, it still cannot guarantee that one group will not prevail over the other (workers over peasants, or vice versa). If a third element is added to the equation - women, in our case, that third element is almost invariably sidelined.
Flaws in the party system that affect the representation of all groups in society are harder to address in legislation on the exercise of political rights. Especially in a context of an impoverished party life as the one Egypt has lived in for decades. Inability of parties to establish platforms and mobilize voters within a limited time frame seems to have favored political entities that could use pre-existing, established networks to mobilize voters in support of their (and other group’s) candidates. Is the current party system unable or unwilling to adequately file candidates from all sectors of society and successfully support them?
If we indeed believe that there are structural failures in the way representatives are currently (s)elected, could a second chamber fill in the gap and guarantee the effectiveness of representative democracy? If so, how? And what powers should such a chamber wield? These seem to be the questions that the constituent assembly will need to address. First, by identifying what groups in society are effectively underrepresented or not represented at all in the existing chamber. Second, by identifying a proper method of assuring representation of such groups - which might and should vary from group to group (the method applied to women cannot be the one applied to peasants, which in turn cannot be the one applied to workers, or to ethnic or religious minorities). Methods of selecting members can vary from direct election with reserved seats, membership ex officio (based on a certain position held by an individual, as in the case of heads of unions or syndicates), or through selection within the identified vocational or corporate groupings.
Needless to say, unless well designed, these methods can lend themselves to abuses, as was the case with the peasants and workers list. Presidential appointments should be limited to a minimum, or ruled out entirely. If the function of such a second chamber is to complement the representation of the first chamber, then its powers should be commensurate with the degree of perceived complementarity of the second chamber. More equal powers (egalitarian bicameralism) if the existing system fails to represent important sectors of society and ideological orientations; or less equal powers (inegalitarian bicameralism) otherwise - excluding the possibility of withdrawing confidence from government, for instance.
A second chamber can be a useless replica of the first chamber, instrumental to full representative democracy, or a deceitful way of the executive to reign in the legislative. It will all depend on the answers given to the key questions raised above. Answers that should be elaborated in the public debate before reaching the constituent assembly: constitutional design will flow from there, insha’allah.
Gianluca Parolin is an expert in comparative constitutional law and Islamic law. He is currently a law professor at the American University in Cairo and Cairo University