The Role of the Second Chamber

In the UK and Indonesia[1]

By: Saldi Isra

Introduction

In general, any parliament can be classified under two systems, i.e. unicameral and bicameral.[2] The practice of the unicameral and bicameral systems does not relate to the principle of the state, the form of the state, the form of government, or the system of the government of any state.[3] The two systems emerged from a long process of the practice of the constitution in different nations all over the world. [4] The application of the bicameral system, for example, is greatly influenced by the tradition, custom and the history of the any state.[5]

So far, in the practice of the bicameral system, there are second chambers that combine strong powers with the strong legitimacy of popular election, such as the US Senate and the Australian Senate[6], and these chambers have often played a prominent role in their countries’ political scene. On the other hand, there are countries, such as Canada, whose second chamber has strong power but a lack of legitimacy because they are appointed by executive government. The Canadian Senate has a wide range of powers that sounds impressive but historically have been rarely exercised because the Canadian electorate and the Senators themselves do not regard a body composed of government appointees to have the popular authority to impose its will on the lower house.[7]

In the United of Kingdom (the UK), for example, the parliament consists of the House of Lords and the House of Commons. According to Irving Stevens, at the beginning, the House Lords represented the king’s council that consisted of high rank military officials, and any other council that was trusted by the king. Then, democratization process and the growth of a new social class (the middle class) brought about the idea to balance the parliament so as to create a broader representation of the people.[8] Those ideas led to formation the lower house.

Parliament in Indonesia consists of Dewan Perwakilan Daerah (DPD) as the upper house and Dewan Perwakilan Rakyat (DPR) or House of Representatives, as the lower house. The DPD was formed in order to meet two main expectations: The first is to provide a way for a new kind of representative from the local regions to enter into the world of decision-making at the national level and the second is to allow the wishes and aspirations of the regions to be heard in the law-making process and the oversight of central executive government.[9]

Even though they are similar, the second chamber, the House of Lords and the DPD have distinctive functions. Therefore this essay tries to address the differences in functions between the House of Lords in the UK and the DPD in Indonesia. The discussion in this essay will be divided into four parts. They are: (1) introduction, (2) the role of the House of Lords in the UK, (3) the role of the DPD in Indonesia, and (4) conclusion.

 

The Role of the House of Lords

The House of Lords is that of the upper house of the Parliament of the UK and it has 730 members (see table). The House of Lords is an unelected body that consist of two archbishops and 24 bishops of the established Church of England ("Lords Spiritual") and 706 members of the Peerage ("Lords Temporal"). The Lords Spiritual serve as long as they continue to occupy their ecclesiastical positions, whereas Lords Temporal serve for life. Members of the House of Lords are known as "Lords of Parliament".

The House of Lords’ Composition[10]

(Up to 1 February 2006)

 

No

Party

Life Peers

Hereditary

Elected by Party

Hereditary Elected Office Holders

Hereditary Royal Office Holders

Bishops

Total

1

Conservative

156

40

9

205

2

Labour

202

2

2

206

3

Lib Dem

69

3

2

74

4

Crossbench

160

28

2

2

192

5

Archbishop and Bishop

26

26

6

Others

10

2

12

Total

597

75

15

2

26

715[11]

 

As a second chamber, House of Lords plays an important part in revising legislation and keeping a check on government by scrutinizing its activities.[12] In legislation, the functions of the House of Lords are similar to those of the House of Commons which are that of debating and questioning the executive. All Bills go through both Houses before becoming Acts, and may start in either House. Normally, the consent of the Lords is required before Acts of Parliament can be passed, and the Lords can amend all legislation, with the exception of Bills to raise taxation, long seen as the responsibility of the Commons. Amendments have to be agreed to by both Houses. The House of Lords is as active as the Commons in amending Bills, and spends two-thirds of its time revising legislation.[13]

Following the Lords' rejection of the Liberal Government's budget of 1909, the Parliament Act of 1911 ended their power to reject legislation. A power of delay was substituted, which was further curtailed by the Parliament Act of 1949. The House of Lords cannot delay a money bill for more than one month. Other public bills cannot be delayed by the House of Lords for more than two parliamentary sessions, or one calendar year. These provisions, however, only apply to public bills that originate in the House of Commons, and do not have the effect of extending a parliamentary term beyond five years. The House of Commons can present a bill (except one to prolong the life of Parliament) for Royal Assent after one year and in a new session even if the House of Lords have not given their agreement.[14]

In its legislative scrutiny work, the House of Lords has four objectives. Firstly, it tries to increase the transparency of the reasoning supporting the proposed legislation. Secondly, it can stimulate the Department to give further consideration to matters which give rise to concern. Thirdly, involving civil society in its work strengthens the element of participatory (or at least consultative) democracy in the legislative process. Finally, to put pressure on Departments to respond issues originally identified by other members of the houses, NGOs, and other persons and bodies.[15]

Beside legislative functions, the House of Lords also holds judicial powers; it constitutes the highest court of appeal for most cases in the UK.[16] The judicial functions of the House of Lords originate from the ancient role of the Curia Regis as a body that addressed the petitions of the King's subjects. In this function, not all members of the House Lords are involved, but rather by a group of members with legal experience, who are known as "Law Lords".[17] The House of Lords is not the only court of last resort in the UK; in some cases, that role is fulfilled by the Privy Council.

The judicial functions may also be exercised by Lords of Appeal (other members of the House who happen to have held high judicial office). The jurisdiction of the House of Lords extends, in civil and in criminal cases, to appeals from the courts of England and Wales, and of Northern Ireland. From Scotland, appeals are possible only in civil cases; Scotland's High Court of Justiciary is the highest court in criminal matters. [18]

The Role of the DPD

Different from House of Lords, the DPD is an elected assembly designed to increase the participation of the local regions in the process of law-making and the oversight of executive government. It has 128 Members, with 4 representatives from each of Indonesia’s 32 provinces. Since the majority of members of DPD come from outside Java, as a second chamber, the existence of this body is also aimed at balancing the amount of members of parliament that come from Java.[19] To be nominated, a DPD candidate should be supported at least by 1,000 to 5,000 signatures of the electors in a province.[20] Furthermore, the candidate of DPD can not come from any political party.

Though all members of DPD are directly elected, the role of DPD in the system of Indonesia constitution is relatively weak. The Indonesian Constitution states that the authorities of DPD to:

Firstly, may propose Bills related to regional autonomy, the relationship of central and local government, the formation, expansion and merger of regions, management of natural resources and other economic resources, and Bills related to the financial balance between the Centre and the Regions.

Secondly, shall participate in the discussion of Bills related to regional autonomy; the relationship of central and local government; formation, expansion, and merger of regions; management of natural resources and other economic resources, and financial balance between the centre and the regions; and shall provide consideration to the DPR over Bills on the State Budget and Bills related to taxation, education, or religion.

Lastly, may oversee the implementation of laws concerning regional autonomy, the formation, expansion and merger of regions, the relationship of central and local government, management of natural resources and other economic resources, implementation of the State Budget, taxation, education, or religion and shall in addition submit the result of such oversight to the DPR in the form of material for its further consideration.

If the authority of the DPD is introduced to satisfy the idea to create a bicameral system with a relatively balanced power, then it can be concluded that the bicameral system of Indonesia takes the form the soft bicameralism. While the original idea that developed through the process of Amendment of the Indonesian Constitution was to create a model of a strong bicameralism by providing a relative a balance power between the DPR and the DPD. The objective is to develop a more relative balance of checks and balances mechanism between DPR and DPD.

However, in reality, the power of the DPD is very weak. In the legislative function for example, the Indonesian Constitution says that the function of legislation, budget and control is vested in the DPR.[21] In Article 20 Section (1) of the Indonesian Constitution it is stated that the DPR shall have the power to pass an Act,[22] however, there is no article that says that the DPD also has a legislative function. The provision that says that the DPD “may propose to the Bills related to…” is not sufficient to say that DPD is also has legislative function. Anyhow, the legislation function should be viewed totally, that is from the process of introduction of the bill until its acceptance to become an Act.

From a constitutional-law point of view, with the absence of provision saying that DPD has legislation function, then legislative power will be the monopoly of DPR.[23] In fact, in the bicameral system, if the second chamber does not have the power to introduce a Bill, it should have the power to amend, consider, or reject (veto) the bill from the lower house. If it did not have the right, the second chamber should have the right to delay the enactment of the bill that has been agreed by the lower house. The right to reject the enactment is usually the sole power if the second chamber does not have the power to amend or reject the Bill.[24]

Considering the provisions in the constitution and the practice of the Second Chamber in Indonesia, Stephen Sherlock delivers a quite interesting opinion:

The DPD is thus a quite unusual example of a second chamber because it represents the odd combination of limited powers and high legitimacy. Its role in lawmaking is limited to certain areas of policy, its powers are only advisory and no Bill is actually required to pass through it in order to be passed, yet at the same time it has the strong legitimacy that comes from being a fully elected chamber. This combination does not seem to be replicated anywhere else in the world.[25]

Conclusion

The role of the House of Lords in the UK and the role of DPD in Indonesia show great differences. In the UK, though it is not formed through general election, the House of Lords has a quite important function in shaping national policy. In the law-making process for example, the House of Lords can discuss and revise bills that come from the House of Commons. Based on data in the Parliament of the UK, 55% of the bills that have been passed by the House Commons have been revised by the House of Lords before approving the Royal Assent and becoming an Act of Parliament.[26]

In Indonesia, though the DPD is formed through general election (with a strong legitimacy of popular election), it does not have a role in the national decision making process. Furthermore, it can be said that the DPD is only a kind of advisory body, not an upper house (the second chamber).[27] Even to consider the new Indonesian system as “bicameral” is questionable because it suggests that all legislations pass through these two houses.[28] The DPD does not have power to pass legislation. It can only introduce or give advice on a certain range of Bills in the DPR. Even the more generic term of “second chamber” that is often used in comparative literature is appropriate only in a strict literal sense when discussing the DPD.[29]

With this limited power, DPD acts only as a sub-ordinate of DPR. Such a limitation gives rise to the opinion that the idea to create two chambers in order to provide a way for a new kind of representative from the regions to enter into the world of decision-making in the national level has failed. This failure will bring impact to the weakness of local political articulation in any stage of the national decision making process.

(2253 words)

Bibliography

Asshiddiqie, Jimly (1996), Pergumulan Peran Pemerintah dan Parlemen dalam Sejarah, Telaah Perbandingan Konstitusi Berbagai Negara, Universitas Indonesia Press, Jakarta.

Baldwin, Nicholas & Shell, Donald (2001) Second Chambers, Frank Cass, London.

Evans, Kevin (2002), Seputar Sistem Bikameral, in Bambang Subianto et.al (edit.), Menggagas Ulang Prinsip-prinsip Lembaga Kepresidenan, CPPS Paramadina dan Partnership for Governance Reform in Indonesia, Jakarta.

Inter-Parliamentary Union (1986), Parliament of the World, A Comparative Reference Compendium, Second Edition, Vol. I, Gower Publishing Company Limited, England.

Isra, Saldi (2004), Penataan Lembaga Perwakilan Rakyat: Sistem Trikameral di Tengah Supremasi Dewan Perwakilan Rakat, Jurnal Konstitusi, vol.1, no. 1, July, Mahkamah Konstitusi Republik Indonesia, Jakarta.

Jacobson, John A (1998), An Introduction to Political Science, West/Wadsworth, Belmont CA, Washington.

Justice Annual Report, (2002), The Role of the House of Lords in Term Parliamentary Scrutiny of Legislation, http://www.justice.org.uk/images/pdfs/lordwilliams.pdf#search

Manan, Bagir (2003), Teori dan Politik Konstitusi, Fakultas Hukum Universitas Islam Indonesia Press, Yogyakarta.

Patterson, Samuel & Mughan, Anthony (1999), Senates: Bicameralism in the Contemporary World, Ohio State University Press.

Rifai, Amzulia (1994). Pengantar Konstitusi Australia, Gramedia Pustaka Utama, Jakarta.

Sherlock, Stephen (2005), Indonesia’s Regional Representative Assembly: Democracy, Representation and the Regions, Centre for Democratic Institutions Research School of Social Sciences, Australian National University.

Susanti, Bivitri (et.al) (2000), Semua Harus Terwakili, Studi Mengenai Reposisi MPR, DPR, dan Lembaga Kepresidenan di Indonesia, Pusat Studi Hukum dan Kebijakan Indonesia, Jakarta.

Stevens, Irving (1996), Constitutional and Administrative Law , Third edition, Pitman Publishing, London.

The House of Lords, http://www.parliament.uk/works/lords.cfm.

The Work of the House of Lords: Its Role, Functions, and Powers; and Bills and They Become a Law, House of Lords Briefing.



[1] This paper presented in the last seminar of Short Course on What Democracy Means in University of Birmingham UK, April 2006.

[2] See, Jacobson, John A (1998), An Introduction to Political Science, West/Wadsworth, Belmont CA, Washington.

[3] Manan, Bagir (2003), Teori dan Politik Konstitusi, Fakultas Hukum Universitas Islam Indonesia Press, Yogyakarta.

[4] Susanti, Bivitri (et.al) (2000), Semua Harus Terwakili, Studi Mengenai Reposisi MPR, DPR, dan Lembaga Kepresidenan di Indonesia, Pusat Studi Hukum dan Kebijakan Indonesia, Jakarta.

[5] Asshiddiqie, Jimly (1996), Pergumulan Peran Pemerintah dan Parlemen dalam Sejarah, Telaah Perbandingan Konstitusi Berbagai Negara, Universitas Indonesia Press, Jakarta.

[6] In Australia, in 1970, three committees are founded in the Senate that have power to control the run of the government. Those three committees are known as three-fold committee system. Those committees are:

1. Standing Committees or Permanent Committees. This committee has responsibility to control the run administration al of governmental departments.

2. Select Committees or Special Inquiry Ad hoc Committees. This committees control the hospital affair, health affair, drugs trafficking, and any affair related to drug abuse, security affair, immigrant rights and stock exchange.

3. Estimates Committees. This committee is responsible for controlling the budget that has been allocated to all governmental departments.

For more explanation see: Rifai, Amzulia (1994). Pengantar Konstitusi Australia, Gramedia Pustaka Utama, Jakarta.

[7] Sherlock, Stephen (2005), Indonesia’s Regional Representative Assembly: Democracy, Representation and the Regions, Centre for Democratic Institutions Research School of Social Sciences, Australian National University.

[8] Stevens, Irving (1996), Constitutional and Administrative Law , Third edition, Pitman Publishing, London. And see also Inter-Parliamentary Union (1986), Parliament of the World, A Comparative Reference Compendium, Second Edition, Vol. I, Gower Publishing Company Limited, England.

[9] Sherlock, Stephen (2005), loc.cit.

[10] Source: Briefing on the Role of the House of Lords (by Mr. David Beamish, Clerk of the Journals), on Chevening Fellowship Programme Visit to London, February 7, 2006.

[11] Excludes 15 peers who are on leave of absence.

[12] The Work of the House of Lords: Its Role, Functions, and Powers, House of Lords Briefing.

[13] Ibid.

[14] The House of Lords, http://www.parliament.uk/works/lords.cfm. See also ibid.

[15] Justice Annual Report, (2002), The Role of the House of Lords in Term Parliamentary Scrutiny of Legislation, http://www.justice.org.uk/images/pdfs/lordwilliams.pdf#search

[16] The Work of the House of Lords: Its Role, Functions, and Powers, House of Lords Briefing.

[17] Wikipedia, the Free Encyclopaedia, Judicial Function of the House of Lord, http://en.wikipedia.org/wiki/Judicial_functions_of_the_House_of_Lords.

[18] In the future the functions of the House of Lords in judicial power will experience a complete change. According to the Constitutional Reform Act 2005 the judicial functions of the House of Lords will transfer to a new Supreme Court of the United Kingdom. The Act provides for the separating of the judiciary (legal system) from the legislature (Parliament) and the executive (government). The constitutional amendment includes: (1) reforming the office of the Lord Chancellor, transferring his judicial functions to the Lord Chief Justice; (2) the establishment of a new Supreme Court separate from the House of Lords and the removal of the law lords from the legislature; and (3) a new independent Judicial Appointments Commission.

For more information, see The House of Lords, http://www.parliament.uk/works/lords.cfm

[19] According to data from Indonesia Election Commission (KPU), about 63% of Indonesia voters live in Java. Indonesia consists of 32 provinces. Six provinces located in Java and 26 provinces outside Java. Each province shall have four representatives in DPD, while members of DPR are decided proportionally according to numbers of residents.

[20] According to General Election Act, a province that has residents less than 1.000.000, a DPD candidate must have at least 1.000 signatures of the residents. The province that has 1.000.000 to 5.000.000 residents a candidate should have 2.000 signatures, the numbers of resident 5.000.000 to 10.000.000 (3.000 signatures, and the residents more from 10.000.000 to 15.000.000 (4.000 signatures), and the residents more than 15.000.000 (5.000 signatures).

[21] See Article 20A Section (1) of the Indonesian Constitution.

[22] See Article 20 Section (1) of the Indonesian Constitution.

[23] Isra, Saldi (2004), Penataan Lembaga Perwakilan Rakyat: Sistem Trikameral di Tengah Supremasi Dewan Perwakilan Rakat, Jurnal Konstitusi, vol.1, nomor 1, Juli, Mahkamah Konstitusi Republik Indonesia, Jakarta.

[24] Evans, Kevin (2002), Seputar Sistem Bikameral, in Bambang Subianto et.al (edit.), Menggagas Ulang Prinsip-prinsip Lembaga Kepresidenan, CPPS Paramadina dan Partnership for Governance Reform in Indonesia, Jakarta.

[25] Ibid.

[26] The Work of the House of Lords: Its Role, Functions, and Powers; and Bills and They Become a Law, House of Lords Briefing.

[27] Compare with Sherlock, Stephen (2005), supra n 6.

[28] Patterson, Samuel & Mughan, Anthony (1999), Senates: Bicameralism in the Contemporary World, Ohio State University Press.

[29] Baldwin, Nicholas & Shell, Donald (2001) Second Chambers, Frank Cass, London.