Marie DeCock, Cédric Labens, Laura Meuleman and Elien Verniers (master students Advanced Study Constitutional Law, Ghent University), Pieter Cannoot (assistant, Ghent University) and Juan Benjumea Moreno (Ghent University)
The Sixth State Reform led to the creation of a new Belgian Senate, the so-called Butterfly Senate, characterised by a new composition and more limited powers. Above all, the Senate needs to function as a chamber of the federated states: a place where the Belgian communities and regions can meet. A critical reading of the most essential provisions on the Senate – articles 56, 67, 68 of the Belgian Constitution – leads to the understanding that the chamber is adequately designed from a legal point of view. Unfortunately, this reform was the result of a typical Belgian compromise. A lack of political consensus prevented the Senate to be completely transformed into a fully-fledged chamber of the federated states. The unsatisfactory result of this reform caused politicians to propose innovative alternatives for the Senate, already one year after its resurrection. What will happen now? Will the Senate remain as it is or are we facing the winds of change? Will the Senate be restored in its former glory, or should it be abolished after all? In addition to the political debate and whether these proposals could be a solution, we will also examine their constitutional framework.
First anniversary of the Butterfly Senate: better to blow out the candle?
One year after the Senate was introduced by the Butterfly Agreement, it’s time to take stock with a critical eye. Although the Senate has been partly silenced by the abolishment of its right of initiative in optional bicameral affairs, this does not imply that it sat idle. The chamber published numerous information reports, for instance on surrogacy and the coordination of public transport. Still, these topics do not square with the new Senate’s ratio legis, namely to be a meeting place for the parliaments of the communities and regions, of which the handling of institutional matters should be at the heart of its activities. Equivalently, there is room for improvement at the legislative level. The Senate already submitted several bills, yet to date, no law, coming from the Senate, was either promulgated or ratified. In addition, a previous blog post already pointed out that the co-opted senators are a ‘true blot on this reform’s escutcheon’. The Belgian Constitutional Court ruled on the allocation of seats of the co-opted senators belonging to the French language group in a judgement of the 28th of May 2015. The Court concluded in recital B.12 that it is not entitled to express itself neither on a (potential) inequality nor on the breach of any fundamental right that arises from a decision directly made by the Constituent Assembly which was expressed in the parliamentary proceedings. Better to blow out the candle?
Will you be the next senator?
At the end of August 2015 Peter Vanvelthoven, member of the Chamber of representatives for opposition party sp.a, introduced a first alternative for the newly reformed Senate. It concerns the transformation of the Senate into a people’s chamber composed of citizens who are assigned by lot. Sp.a states that the time has come to take a new step towards a more participatory democracy. The population is better educated, more articulated and has a greater desire to participate than ever before. The party believes that the current Senate, as a place where the communities and regions can meet, is without any meaning and therefore unnecessary. For this reason she sees the Senate as the perfect candidate to be the world’s first democratic people’s chamber.
What is the exact content of the proposition? A raffle will be held between the 7,8 million Belgians who are entitled to vote and all 16- to 18-year old Belgians. The result will be a group of 10,000 people who are randomly selected. After attending an information session, in which they learn all about their possible task, these 10,000 people can each decide for themselves whether or not they want to apply for the final draw of 150 Senators. Serving a one-year term, the people’s chamber will hold three meetings per week and will discuss four themes a year. In the proposition of sp.a the competence of the people’s chamber will temporary be limited to a right of initiative and amendment and would therefore not have a full normative dimension. The ultimate decision power remains with the Chamber of representatives. Over time, however, the people’s chamber could be granted full legislative powers.
Since the people’s chamber would be replacing the Senate, it would only have powers on federal matters. Consequently, it is desirable that on the subnational level, there would also exist a form of participation for unelected citizens. A possibility would be to divide the federal people’s chamber into a Dutch and a French language group that each would deal with regional issues. Sp.a is of the opinion that this would not be an ideal solution as it would cause two opposing camps to emerge. According to the party, a better proposition would be to establish a separate Flemish people’s chamber, that would work together with the Flemish Parliament and constitute the Flemish legislative power.
A people’s chamber could furthermore be a great alternative for more direct democracy since there is no possibility of a constitutional referendum in Belgium. However, one can question whether a people’s chamber would lead to a more democratic institution than the current Senate. Whereas in the current Senate (most of) the members are elected by the people, the members of a people’s chamber would be appointed by pure chance.
What about the constitutionality of a Senate composed by drawing lots? According to the current Constitution, such a Senate is impossible. Article 33, sec. 2 of the Constitution requires that all powers must be exercised in the manner that the Constitution provides. We note that the Belgian Constitution carries the representative democracy in a high esteem, making it difficult to reconcile with forms of direct democracy. In any case, the proposal requires a very thorough review of a series of articles of the Constitution, which cannot be amended for the moment. Article 42 of the Constitution, which deals with national sovereignty, is an important element in this context. After all, one will have to ensure that the citizens chosen by lot effectively represent the entire Belgian nation and not only their own interests. This revision would, therefore, not immediately find its constitutional entrance. Only at the end of the current session, in 2019, Parliament can adopt a list of constitutional provisions which are ‘declared to be revisable’.
Whereas Open Vld in 2010 was a firm advocate of the abolition of the Senate, it has made a U-turn since the Sixth State Reform. A positive response to the proposition of sp.a was provided by the Flemish Minister of Culture, Sven Gatz, who is also a member of Open Vld. This did not come as a complete surprise as the minister himself launched a citizens cabinet for his department. Although he supports the principle of more participation by citizens, he does not seem entirely won over by the idea of a people’s chamber. Open Vld prefers to experiment with smaller initiatives before drastically reforming a large institution like the Senate.
A second alternative for the present Senate is offered by former senator Armand De Decker (MR). He admits that the Butterfly-Senate is a poor compromise. He therefore pleads for a stronger Senate. This implies that the Senate, in order to properly fulfil its role as a chamber of the federated states, must obtain a greater say in those (non-institutional) issues that affect the states. This way, the Senate should be able to agree on mixed international treaties. In the German Bundesrat, for example, the Bundesländer can indirectly influence pseudo-exclusive federal matters. After all, article 77 (4) of the German Constitution states that when a two-third majority in the Bundesrat objects to a certain bill, a two-third majority is required in the Bundestag.
How could this senatorial participation in federal matters be realised? Article 77 of the Constitution provides for the possibility, via a special majority law, to add topics to the list of obligatory bicameral affairs. However, in view of the parliamentary proceedings, it should be noted that the rationale behind the Sixth State Reform consisted of simplification. For these reasons, the bicameral procedures were limited to matters that are institutional in nature.
The Senate as a crisis manager
In line with a stronger Senate, there is a proposal of CD&V based on the idea that the reform of the Butterfly-Senate is an important element in the institutional development of Belgium. The party wants to give it a try and the necessary walk-in period and believes that the Senate should be given an important task in the pressing debate about representative democracy. In the opinion of CD&V, drawing lots offers no solution since it undermines the representative democracy, which is, according to CD&V, a foundation of the institutional system.
According to the party, citizens should, in the framework of the discussion on representative democracy, regain their confidence in politics. Parliament and the government should therefore take action on hot topics. Peter van Rompuy (CD&V) puts it as follows: "Only if politics will be able to respond to those challenges, only then we will be successful in restoring confidence as politicians". According to CD&V, the challenge therefore is to find a way to restore the political leadership, a challenge in which the Senate can play a pioneering role.
The Belgian Senate, or the faded hope
One last idea is the abolition of the Belgian Senate. It is widely known that N-VA,Vlaams Belang and Groen prefer to see the Senate disappear. According to N-VA the Senate is utterly useless, since it does not exercise any political control, is a superfluous meeting place between the federated parliaments, has a very limited legislative power and draws up information reports that no one reads. According to Annick De Ridder, group leader of N-VA in the Senate, the debates in the Senate are merely an occupational therapy.
N-VA finds the proposal of Peter Vanvelthoven to organize the Senate by drawing lots, "a spasmodic resuscitation exercise with a highly absurd content". She believes that such a draw comes along with a democratic deficit. According to her, this deficit arises as the proposal wants to take into account a minimal level of education of the chosen citizens. "This is even worse than census suffrage", dixit Annick De Ridder.
Sensational reactions such as ‘the loss of bicameralism marks the end of the democratic rule of law’ often bubble to surface. Nevertheless, a look across the borders makes clear that this does not necessarily need to be the case. The Senate has been abolished in Venezuela, but as a form of compensation, article 186 of the Venezuelan Constitution provides for a representation of the states in the unicameral Parliament. Additionally, article 201 of the Constitución de Venezuela stipulates, that, in contrast to article 42 of the Belgian Constitution, members of Parliament represent both the people and states (‘del pueblo y de los Estados’). We can draw our inspiration from this case as well. In this way, the representation of the subnational interests can perfectly occur without having to establish a second chamber, next to the alarm bell procedure and the possibility of raising a conflict of interests.
Is the abolition of the Senate plausible, according to the Belgian Constitution? The special majorities needed for a constitutional amendment make it hard to ever achieve it. After all, the Senate would have to abolish itself with a two-thirds majority and there is no guarantee that this will ever happen. In response to the question whether or not the Senate will be abolished in the near future, Annick De Ridder stated that the current Federal Government mainly focuses on the socio-economic policy and less on institutional reforms. At the end of the legislative session, in 2019, Parliament can adopt a list of constitutional provisions which are ‘declared to be revisable’. Maybe the abolition of the Senate will the object of the seventh State Reform…
Conclusion: scepticism and fidelity
We conclude that, according to the French language group, there is an absolute need for the Senate, because, as Christine Defraigne (MR, President of the Senate) explains: "If you abolish the Senate, you abolish the State". On the Flemish side, however, one is rather sceptical of the Senate.
The Senate is often seen as a conditio sine qua non regarding federalism. However, this does not need to be the case (cf. Venezuela). The Senate used to symbolize the solidarity among the citizens of Belgium. However, the second chamber will have to transcend this symbol function. The Senate, as a pioneer of a 'do-democracy among federated states’, possibly has a future if there is no further erosion of powers. Yet, if this should be the case, one might better opt the short pain of abolition. Finally, Belgium could also choose to be a democratic pioneer and reform the Senate into a people’s chamber in which the citizen has the final say. There are thus numerous alternatives, but as Herman de Coninck once said: "The funniest thing to do with an opinion is to differ".
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