Senate, Anyone?

The real reason behind the Czech upper house.

Wiktor Osiacynski has compared the predicament of post-Communist parliaments to that of football players changing the rules of the game as they go along. This metaphor is not only colourful, it also pinpoints the key problem of constitutional transition; lawmakers need to pass a massive volume of reform legislation while at the same time creating the fundamental institutions of democracy, one purpose of which is to assure that legislative changes occur only gradually. To put it in its most paradoxical form, the transition from totalitarianism to democracy cannot be achieved through the institutions of democracy.

Some Eastern Europeans conceive of constitutions cynically, as the equivalent of three-piece suits to be donned for the benefit of the EC, the IMF and other high class party-throwers. American lawyers tend to go to the other extreme, adopting an almost worshipful attitude toward their own Constitution, as if the Framers had received the text from on high. Most political scientists, though, take a more realistic approach, defining a constitution in procedural terms, as a set of rules that are difficult to adopt and amend. The function of this rigidity is to make the constitutional order secure, predictable, stable.

To ensure the longterm irreversibility of democracy, the bedrock institutions of day-to-day representative government must be implemented only gradually, over the course of a transitional period. Their sudden or immediate implementation would be counterproductive, even dangerous-reactionary forces could take advantage of the rough and tumble of normal democratic government in order to delay or defeat crucial reform legislation, giving reactionary forces a chance to reorganise and dig in their heels. To avoid this problem, transitional institutions should be flexible enough to allow for speedy changes but rigid enough to guard against backsliding: a constitutionally protected one-way revolution.

A cavalcade of justifications

Constitutions clearly have a role to play in establishing such medium-term structures. In fact, this very sort of trick was utilised in the case of the Czech Senate. Although an upper house will help ensure a stable and secure democracy, for the time being it would only get in the way of the efficient passage of vital reform legislation. It was necessary to devise some way to create an upper house, but keep it in abeyance until it was safe to let it function normally. Moreover, a way had to be found to bolster the stability of the lower house during the period when it bears the full brunt of representation. These were the real raisons d’etre of the upper house, a purpose divined by only a few, because the issue was clouded by a number of other constitutional rationalisations. As the once-and-future President Havel pointed out in an interview late last year, “First we desire a Senate and then we look around for a reason to have one.” In the months leading up to the adoption of the new Czech constitution, several reasons to have a Senate jockeyed for position. Before elaborating on the true reason for the Senate (elaborated in point #6 below) let us first take a look at the catalogue of false justifications:

  1. Transporkation. This term was coined by Jan Kalvoda, chairman of the centre-right Civic Democratic Alliance, to characterise the selfish motives of Czech deputies in the now-defunct Federal Assembly, who devised the idea of an upper house because they faced unemployment as a result of the dissolution of that body. The federal parliamentarians demanded, in essence, to be herded like swine into a new sty on the republic level and to continue to water themselves at the public trough. Thus the neologism in boldface is not a reference to the all-American tradition of pork-barrel politics, but an attempt to find an equivalent for the Czech term “prepraseni” (literally, “pigging-over”). The co-opting proposed by the federal MPs seemed absurd to constitutional purists, and also to legal realists who preferred to be rid of the Federal Assembly deputies because they see them as lacking in genuine authority due to the constant quarrels and gridlock characteristic of that body. On the other hand, a constitution is not a result of pure reason, but of compromises, with each interest group pressing to further its own goals. Some Moravians wanted federalism; some MPs wanted jobs; such is the way of constitutional bargaining. Of course, common sense won out in the end, and (thanks mainly to the efforts of the Civic Democratic Alliance) the transporkation scheme was killed. But the idea of a Senate surged onward, generating more and more retrospective justifications in its wake.
  2. Utopian schemes. Some groups, claiming to subordinate their own interests to the public good,justified the formation of an upper house in loftier terms. For example, the Civic Democratic Alliance advocated the creation of a Senate as a way-station to a Hayekian utopia. A division of labour between the branches would be instituted, corresponding to the distinction between public and private law, or taxis and nomos, to borrow Hayek's terminology. The Senate would be made responsible for private law (mainly the creation of codes, such as the civil or commercial code), and the Chamber of Deputies would deal with public law acts that regulate the day-to-day administration of government. This partition plan might lead in theory to a more productive parliament, but in practice, of course, the realms of taxis and nomos are impossible to extricate from one another. Meanwhile, a small group led by the rector of Charles University crusaded for a non-elective Senate peopled with venerables such as the mayor of Prague, the archbishop of Olomouc… and the rector of Charles University. This is essentially a system of “estates,” proposed by people not enthusiastic about the post-'89 world (1789, that is). It did not catch on.
  3. The sacred cow effect. The Czech Republic looks to the period of the First Republic of Tomáš Masaryk for inspiration because many Czechs consider it a glorious chapter in their history. Czechoslovakia, unlike other Central and Eastern European nations, enjoyed a period of sophisticated and functional democratic government between the wars. In rimes of transition, some indigenous historical models operate almost like an external force, an authoritative source of rules for befuddled football players, to prevent the game from becoming a free-for-all. There was a bicameral parliament in the First Republic, and this argued strongly for the creation of another one in 1993. The influence of pre-Communist precedents on post-Communist constitutionalism should not be underestimated.
  4. Some of the more philosophically inclined pundits pointed out that an effective Senate acts as a futer. As far back as the Greek tradition, the upper house of the legislature was conceived of as a body of wise elders charged with winnowing out poorly crafted or opportunistic bills passed by the impetuous democratic majority. As described above, the second chamber also has a braking function, insuring against the over-hasty adoption of laws and increasing the likelihood that they will be the result of mature deliberation. Though such a system takes a way from the speed and volume of legislative production, it should add to the quality of legislation. Moreover, it is. well-known that parliaments oscillate spasmodically in their behaviour, especially before elections, when they become peculiarly populist. A Senate, elected for longer terms and able to amend or veto legislation initiated in the lower house, would tend to flatten these amplitudes.
  5. The Senate could also help the nation overcome the inherent dilemma of the electoral system. The proportional system, under which the Czech Republic currently operates, is complex, unwieldy, and even with a five percent threshold tends to foster instability and fragmentation. By contrast, the Anglo-American majoritarian winner-take-all scheme is stable, practical, and lovably primitive-its only drawback is that it happens to be patently unjust. Nonetheless, Prime Minister Klaus (because he is the leader of the biggest parry) and President Havel (because he is on principle anti-party tout court) share a fondness for the majority system, as do the authors. Despite such prestigious support for the majority system, its importation faced a great deal of resistance from the forces of inertia that had entrenched the tradition of proportional representation. As a compromise between these points of view, it was decided that the Senate will be elected on the majority principle, and the Chamber of Deputies by the proportional system.
  6. Now we come to the real reason why the invention of the Senate represents a triumph of transitional constitution-making. As noted above, it is sometimes necessary to delay the implementation of fundamental democratic institutions, and the wrangling and delays they bring with them, for a certain period until important and irreversible changes have been made. In particular, as Stephen Holmes made clear in the last issue of the Review (“Back to the Drawing Board,” EECR, Winter 1993, page 21) stable and effective parliaments provide the only true anchor of democratic legitimacy during the post-totalitarian transitional period. The all-important delaying tactic in the present constitution can be found in the somewhat oblique provisions of Article 106, Sections 2 and 3:

    1. (2) Until the Senate is elected according to this constitution, the duties of the Senate shall be performed by a Provisional Senate. the Provisional Senate shall be established in the manner provided by a constitutional act. Until that act enters into force, the Chamber of Deputies shall perform the duties of the Senate.
    2. (3) The Chamber of Deputies may not be dissolved while it is performing the duties of the Senate in accordance with Section 2.

    The trick here is written between the lines: the so-called Provisional Senate (which was originally conceived as a job creation program for the disgruntled federal MPs) is unlikely to be established, and elections for the true Senate may not take place until as late as 1994. So Article 106.3 effectively creates an indissoluble parliament for the short to medium term. In other world, this incomplete bicameralism will actually function during the transition period as a stable and untrammelled unicameralism, and the single chamber will have a freer hand to enact the tremendous volume of necessary legislation.

In closing, and considering the focus of this issue of the EECR on judicial review, we should also briefly note Article 89.2: “Enforceable decisions of the Constitutional Court are obligatory for all organs and persons.” (emphasis added). In other words, the decisions of the Court will count as law, valid not merely inter pares but erga omnes. This provision represents a significant step away from the continental model of limited judicature and codex law and toward a harmonisation of statutory and common-law models. Although some Central Europeans still cling to the naive belief that judges don't make law, that they rule by finding answers in a book, Article 89.2 represents another victory of reason over traditionalist bias and inertia, and over the continental distaste for judicial review.

Vojtech Cepl is the Vice-Dean of the Faculty of Law at Charles University, Prague.