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Benjamin Magnus & Pauline Verbiest (master students Advanced Study Constitutional Law, UGent), Jurgen Goossens (doctoral researcher, UGent) & Pieter Cannoot (academic assistant, UGent)

Overview sixth state reform: part 3 of 6

“If the Senate wants to uphold its raison d’être, it should develop into an efficient consultation platform for the federated entities which solves institutional conflicts and prepares future steps in the reform of the Belgian (con)federal state.”

SenaatThe Belgian Senate looks completely different after the sixth state reform. The Butterfly Agreement of October 11, 2011 on the sixth state reform executed a reform of the bicameral system, whereby the Senate and its function were revised. From now on, the Senate is an assembly representing the interests of the federated entities on the federal level. An altered composition and more limited powers should enable the Senate to fulfill this new role as chamber of the federated entities. However, it remains to be seen how the new Senate will fulfill its (restricted) role. If the Senate wants to uphold its raison d’être, we believe it should develop into an efficient consultation platform for the federated entities which solves persisting disagreements between the Communities and Regions, and prepares future steps in the reform of the Belgian (con)federal state.

In a federal state it is vital that the federated entities have a say in (federal) matters which concern them. The sixth state reform attempts to achieve this by ensuring the representation of the Communities and Regions in the Senate. By means of an altered composition and a reform of its powers the Senate becomes a full-fledged chamber of the federated entities, thus filling a gap in the Belgian state structure.

New composition

The new Senate has become smaller: it now consists of 60 senators, instead of the previous 71 members. Henceforth, senators are no longer directly elected and the ‘senators by right’ (the adult children of the reigning King) lost their seat. In the new Senate, 50 out of the 60 seats are occupied by senators who are appointed by and from the Parliaments of the Communities and Regions. Among these senators, the distribution of seats is based on the electoral results in the Communities and Regions. They are, in fact, “representatives” of the Communities and Regions, in this way enabling the Senate to fulfill its new role.

The remaining 10 senators are co-opted senators. The technique of co-optation was initially introduced to involve experts (technocrats) in the parliamentary work of the Senate. They were presumed to improve the quality of the debate and the legislation. Unfortunately, in contemporary politics this category of senators is used primarily to provide a seat for politicians who did not achieve to be directly elected. The preservation of co-optation in the sixth State reform was supposed to be a compensation for the split-up of the electoral district Brussels-Halle-Vilvoorde, in order to ensure that Brussels politicians could become member of the Senate.

Maintaining the co-opted senators could be seen as a blot on the escutcheon of the reform. The distribution of their seats is based on the elections of the House of Representatives, which is inconsistent with the idea of the Senate being a chamber of the federated entities. Given the considerable reduction of legislative powers of the Senate, it would have been more rational to give them a seat in the House of Representatives instead. Nevertheless, we actually believe the instrument of co-optation should be abolished since technocrats are already abundant in the cabinets and parliamentary staff. Moreover, if experts want to become a Member of Parliament they should seek a mandate of the electorate as well.

Vast reduction of powers

The sixth State reform curtailed the powers of the Senate. Furthermore, it becomes a non-permanent body which only – or still – holds a plenary meeting eight times a year. The monocameral legislative procedure, in which the legislative power is executed by the House of Representatives and the King without interference of the Senate, becomes the standard procedure. It applies to all matters which do not explicitly follow the optional or full bicameral procedure. As a compensation, a second reading is introduced in the House of Representatives. Thus, the Senate will have substantially less legislative work than before.

The powers of the new Senate mainly relate to institutional matters: the revision and coordination of the Constitution, the supermajority laws and ordinary acts with an institutional character. The Senate no longer participates in the everyday management of our country, but through the Senate the federated entities now have full co-decision power and thus veto power regarding the institutional structure of Belgium. “Flanders will co-decide about the fundamental rights of the people, the organization of federal Belgium and the division of powers”, according to former Chairman of the Senate Sabine de Bethune.

However, it is doubtful whether the Senate will be able to adequately fulfill its role as chamber of the federated entities, considering that its powers are limited. In contrast to the German Bundesrat, the Belgian second chamber remains unable to address several matters with a possible impact on the policy of the federated entities, such as the federal budget. Without negotiations about a new state reform, the Senate will de facto have no work, unless it proactively asserts itself as an institutional bridge-builder between the Region and Communities as well as a think-tank regarding the institutional future of Belgium. Finally, it is noteworthy that article 42 of the Constitution still states that the senators represent the entire nation, even though it was the intention to transform the Senate into a full-fledged chamber of the federated entities.

Senate: quo vadis?

The above-mentioned shortcomings of the reform are a result of the absence of a clear vision regarding the future and the role of the Senate. For instance, most Flemish political parties preferred the abolition of the institution. Among others N-VA, Open VLD, Groen and Vlaams Belang were in favor of the abolition of the bicameral system. Ultimately, the Senate’s role could easily be fulfilled by a special institutional committee within the House of Representatives. Moreover, the interests of the Communities and Regions are already sufficiently protected by several other instruments: the presence of linguistic groups in the House of Representatives, the linguistic parity of the federal government and blocking mechanisms such as the alarm bell procedure and the procedure for conflicts of interest. On the other hand, some people advocate the idea of a stronger Senate. Former Chairman of the Senate Armand De Decker for example strongly opposes the reform, as he believes it is a “missed opportunity to give the federated entities a real voice”. Despite these opposing views, negotiations eventually led to an agreement. The result is a political compromise which lacks a clear vision regarding the role of the Senate.

We believe that a well-functioning Senate could be of great value in a federal state. One could opt for a full-fledged chamber of the federated entities and increase its powers similar to the German Bundesrat. Moreover, the Senate could become a consultation platform where representatives of the federated entities work together on sensitive topics for which disagreements exist among the Communities and Regions as well as reflect about possible future steps in the evolution of the (con)federal Belgian State.

For now, however, Belgium is saddled with an institution whose current value and role are not clear. It is up to the politicians to make a well-considered choice. They could abolish the Senate and let the House of Representatives take over its tasks, or they could transform the Senate into a permanent consultation platform for the federated entities which solves issues between Communities and Regions and prepares future institutional steps in a thoughtful manner.

Concise bibliography

1. A. Alen & D. Haljan, “Part III. The State and its Subdivisions” in A. Alen, D. Haljan, R. Blanpain en M. Colucci, IEL Constitutional Law, Alpen aan de Rijn, Kluwer Law International, 2013, 143-194.

2. F. Delpérée, "Le nouveau Sénat. Quelles réalités? Quelles perspectives?", La Revue Générale 2014/9-10, 9-11.
The new Senate. Which facts? Which prospects?

3. A. Feyt & P. Vandernacht, "La réforme du Sénat, un tableau inachevé…" in J. Sautois en M. Uyttendaele (ed.), La sixième réforme de l'État (2012-2013). Tournant historique ou soubresaut ordinaire ?,Limal, Anthemis, 2013, 81-101.
The reform of the Senate, an unfinished work…

4. C. Fornoville, "De Vlinder-Senaat" in J. Velaers, J Vanpraet, Y. Peeters en W. Vandenbruaene (eds), De Zesde Staatshervorming. Instellingen, bevoegdheden en middelen, Antwerpen, Intersentia, 2014, 17-52.
The Butterfly-Senate

5. J. Goossens & P. Cannoot, "Een nieuwe Senaat: een maat voor niets?", Juristenkrant 6 november 2013, 6-7.
A new Senate: a waste of time and effort?

6. K. Muylle, "De hervorming van de Senaat en de samenvallende verkiezingen: een processie van Echternach naar de federale (model)staat?", in A. Alen e.a. (eds.), Het federale België na de Zesde Staatshervorming, Brugge, die Keure, 2014, 103-124.
The reform of the Senate and the coinciding elections: a procession of Eternach towards the federal (model) state?

7. P. Peeters, “De Senaat opnieuw ter discussie” in B. Peeters en J. Velaers (eds.), De Grondwet in groothoekperspectief, Antwerpen, Intersentia, 2007, 231- 238.
The Senate up for discussion yet again

8. P. Popelier, "Het kaduke masker van de Senaat: tussen deelstaatfederalisme en multinationaal confederalisme", in J. Velaers, J. Vanpraet, Y. Peeters en W. Vandenbruaene (eds), De Zesde Staatshervorming. Instellingen, bevoegdheden en middelen, Antwerpen, Intersentia, 2014, 53-90.
The broken facade of the Senate: between substate federalism and multinational confederalism

9. A. Rezsohazy & M. Van Der Hulst, "De verdeling van de wetgevende bevoegdheid tussen Kamer en Senaat na de zesde staatshervorming", TVW 2014-1, 40-57.
The distribution of legislative powers between Chamber and Senate after the sixth State reform

10. C. Sagesser & C. Istasse, “Le Sénat et ses réformes successives”, C.H. CRISP 2014, nr. 2219-2220, 114.
The Senate and its successive reforms

11. G. Van Der Biesen, "De nieuwe wetgevingsprocedure" in A. Alen e.a. (eds.), Het federale België na de Zesde Staatshervorming, Brugge, die Keure, 2014, 125-142.
The new legislative procedure

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