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    Restructuring the Senate

    Empowering the Senate

    http://www.dawn.com/2002/text/op.htm#2

    By Ghani Chaudhry


    The constitutional provision that the Senate shall not be subject to dissolution (Article 59(3)) has in practice been more a wish than a reality in our country. Political circles are proposing broadening of the powers of the Senate especially in respect of monetary matters. And now the National Reconstruction Bureau has announced a number of proposals which also relate to the restructuring of the Senate.

    Some politicians, including heavyweights like former foreign and finance minister Sartaj Aziz, suggest direct election to the Senate to enable it "to play a more active role in strengthening the federation by protecting the rights of the smaller provinces".

    In fact it is not the exclusion of financial matters or the mode of elections that the woes of the Senate are all about. Compared with the upper houses in some federal parliamentary governments our Senate enjoys marginal powers especially in areas where its role should be crucial such as amendments to the Constitution impinging on financial and administrative powers of the provinces. The role of our Senate is under further threat of erosion from constitutional changes necessitated by fiscal developments around the world and by the political exigencies of uniform living conditions in the country.

    An upper house in a federal parliamentary system is designed to act as a brake on hasty legislation by the lower house and protect the vital interests of the federating units. Our predicament has been that the drawing of a political structure on the models of the American presidential and the British parliamentary forms ends up distorting the basic features of both. However, our rulers had made the most of the benefits available in both systems.

    For example the American president appoints his cabinet members, ambassadors and some other high level posts on taking over the presidency but these are subject to confirmation by the US Senate after proper hearings. Our prime ministers make such appointments in substantial numbers, and these are not liable to confirmation by the Senate. This practice has only proliferated nepotism and politicization of the services.

    The proposals to increase the number of seats of the Senate will prove inconsequential, since its present strength of 87 is reasonable when compared with most of other countries. The upper house of Germany (Bundesrat) has 69 seats, the Russian federal council has 178 and the Indian Rajya Sabha 250.There is no uniformity of principles in the composition of the upper house in a federal system of government. In Germany, depending on the population, the 16 states have three, four, five or six nominated members, who cast votes only as a block under instructions of their provincial governments. The federating units in Pakistan and Russia have equal representation. In India, in addition to nominations on 12 seats by the president, the state-wise representation on remaining seats varies from a maximum of 22 seats (Bihar) to a minimum of one seat (in the case of eight states).

    While ministers are not chosen from the upper house of Germany, and perhaps from the federal council of Russia, a number of cabinet ministers are taken from the upper houses of Pakistan and India. In Pakistan up to one-fourth of total cabinet members can be appointed from the Senate. But as cabinet ministers they remain collectively responsible to the national assembly.

    In Britain, there have even been, in the past, prime ministers from the House of Lords. For instance Lord Salisbury was a member of the House of Lords in 1878 and later became prime minister three times. Over the years things had changed. Now a prime minister can pick up ministers from the upper house but normally these are junior ministers. At present in addition to the Lord Chancellor, there are only two ministers in the House of Lords. They do not sit in the House of Commons and are not accountable to it.

    Elections to our Senate are held indirectly like all upper houses in federal parliamentary governments. Unlike the advisory role exercised by the upper houses in some countries in respect of money bills, our Senate has no say whatsoever in this respect. Under Article 73 of the Constitution, a money bill originates in the national assembly and is passed by it without getting approval from the Senate. Compared to this, a money bill passed by the Commons in Britain and the Lok Sabha in India goes to the upper houses for consideration. In Britain, a money bill will become law if not passed by the lords within a month. And, the Commons is not obliged to consider any amendments made by the Lords to the bill. In India if the upper house amends or rejects the bill within 14 days it again goes to the lower house where it is reconsidered and voted upon by a simple majority.

    Our Senate's role is excluded in respect of monetary matters and is marginalized in other legislation. It may exercise restraint on the national assembly by rejecting certain routine legislation passed by it but its vote can always be over-ruled by a simple majority in a joint sitting of parliament. The upper houses of Germany and India enjoy identical powers in routine legislation but their consent is essential in some specific matters.

    In Germany more than half of all bills require the formal approval of the Bundesrat which means that they cannot pass into law without its assent. This applies especially to legislation that concerns vital interests of the states, for instance their financial affairs or their administrative powers. No amendments to the German constitution can be made without the Bundesrat's consent and a with two-thirds majority. India's upper house enjoys certain powers to the exclusion of the lower house. Under article 249 of Indian constitution the upper house with a two-thirds majority of its members can recommend to the parliament to make laws on matters included in the state legislative list. The second exclusive power of the upper house relates to the setting up of the all-India services that are common to the union and the states and it is only through the passage of a resolution in this regard that the lower house makes any laws concerning such a service.

    If anything, the role of our Senate needs to be redefined in making amendments to the Constitution especially provisions impinging on vital interests of the provinces like provincial autonomy, economic interests and creation of the all-Pakistan services that are common to the federation and provinces. Legislation concerning these areas should be undertaken only after approval of the Senate by a two-thirds majority. The Senate needs to be empowered to exercise some control over the cabinet ministers drawn from it. In fact, such ministers should sit in the Senate and remain answerable to it. Money bills need to be transmitted to the Senate for seeking advice. It matters little whether any amendments made by the Senate are accepted or not by the national assembly. This practice will help remove the present sense of alienation in the Senate.

    The idea being mooted by certain quarters for holding direct elections to the Senate is not only contrary to the universally accepted features of a federal parliamentary system of government but also impracticable on the ground in our country. About 100 Senate seats for an estimated population of close to 150 million means one seat for around one and a half million people or about one million voters. This will amount to making the Senate election as preserve of multi-millionaires only. Politics is not for the rich alone.


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