THE JUSTIFICATIONS OF THE SECOND PARLIAMENTARY CHAMBERS IN THE NORTH AFRICAN REGION: A COMPARATIVE STUDY OF ALGERIA, EGYPT, MOROCCO AND TUNISIA*
LAS JUSTIFICACIONES DE UNA SEGUNDA CÁMARA PARLAMENTARIA EN LA REGION DE ÁFRICA DEL NORTE: UN ESTUDIO COMPARATIVO ENTRE ALGERIA, EGIPTO, MARRUECOS Y TÚNEZ AS JUSTIFICATIVAS DAS SEGUNDAS CÂMARAS PARLAMENTARES NA REGIÃO NORTE-AFRICANA: UM ESTUDO COMPARATIVO ENTRE ARGÉLIA, EGITO, MARROCOS E TUNÍSIA Fathi ZERARI a [email protected] Fecha de recepción: 19 de mayo de 2017 Fecha de revisión: 02 de junio de 2017 Fecha de aceptación: 21 de junio de 2017
ABSTRACT As a collegial institution, the parliament is becoming more and more important in the countries where the democratic processes are taking place, as it is the most favorite political space where the different components of the society can synergize to generate a smooth and effective democratic change.
Since the bicameral or the unicameral organization of the parliament can have significant sociopolitical implications, it is important to understand the motivations underlying the choice between the two types of organization.
The present research attempts to evaluate the reasons underlying the institution, the reinstatement or the abolition of the second parliamentary chambers in some Northern African countries, namely: Algeria, Egypt, Morocco and Tunisia. This evaluation will be conducted within the frame of the comparative approach and with a particular reference to the French tradition as a source of inspiration for the studied countries.
MISIÓN JURÍDICA * Artículo de reflexión que se enmarca en el análisis del derecho comparado internacional dentro Revista de Derecho y Ciencias Sociales del ejercicio profesional del autor como profesor universitario. Bogotá, D.C. (Colombia) Colaboradores Externos Internacionales a. Professor associate of public law Faculty of law and political science, University Mohamed Núm. 14 Año 2018 Cherif Messaadia, Algeria Enero - Junio, pp. 27 - 42 ISSN 1794-600X
27 The justifications of the second parliamentary chambers in the North African region: a comparative study of Algeria, Egypt, morocco and Tunisia
KEYWORDS restauração ou o cancelamento da segunda Democracy, Representation, Second câmara parlamentar em alguns países no norte Parliamentary Chambers, Legitimacy, Efficiency da África, ou seja: Argélia, Egipto, Marrocos e Tunísia. Esta avaliação se processará no âmbito da abordagem comparativa e com particular RESUMEN referência à tradição francesa como uma fonte de Como una institución colegiada, el parlamento inspiração para os países em estudo. está cobrando más importancia en los países donde están ocurriendo procesos democráticos, PALAVRAS-CHAVE ya que es el espacio politico favorito donde los diferentes componentes de la sociedad pueden establecer sinergias para generar un cambio Democracia, representação, segunda câmara democrático suave y efectivo. parlamentar, legitimidade, eficiência.
Como la organización bicameral o unicameral INTRODUCTION del parlamento puede tener implicaciones The parliament contributes to the synergy sociopolíticas significantes, es importante of efforts of the various components of the entender las motivaciones que subyacen a la society and offers a space for dialogue, debate, elección entre estos dos tipos de organización. deliberation, respect of the majority’s decision and tolerance of the minority. Esta investigación intenta evaluar las razones subyacentes a la institución, el restablecimiento o In the underdeveloped countries, such as la anulación de la segunda cámara parlamentaria the North African region, the heterogeneity of en algunos países del norte de África, the social fabric 1 can generate factions that concretamente: Algeria, Egipto, Marruecos y have negative repercussions on the political, Túnez. Esta evaluación será llevada a cabo dentro administrative, social and economic levels 2 . Thus, del marco del enfoque comparativo y con una the parliament can help to contain subnational referencia particular a la tradición francesa como loyalties so that they do not weaken the national fuente de inspiración para los países en estudio. unity 3; in addition, the unicameral or bicameral 4 organization of the legislative power can also have PALABRAS CLAVE a significant sociopolitical impact. Democracia, representación, segunda cámara parlamentaria, legitimidad, eficiencia.
1. In the Arab world, the role of religion is undeniable in defining RESUMO the role of the State, particularly in the aftermath of the popular uprisings that led to the collapse of many Arab regimes (Syria, Como uma instituição colegiada, o Libya, Yemen) and the advent of the so called ‘Islamic State in Parlamento está se tornando mais importante Iraq and the Levant’ in the middle eastern political scene. For more details on the origin and the evolution of ISIL, see LUIZARD nos países onde os processos democráticos Pierre-Jean. L’État islamique à la conquête du monde. in Le estão ocorrendo é favorito espaço político, onde Débat, 2016-3, n° 190, pp. 135-153. See also Mark LYNCH. The os diferentes componentes da sociedade podem Arab Uprisings Explained: New Contentious Politics in the Middle East, New York, Columbia university Press, 2014, pp. 202- estabelecer sinergias para gerar um suave e 2. GALLEB Abdelkrim. Defense of Democracy: a historic- eficaz mudança democrática. analytical research (in Arabic). Mohammadia : Editions Fadhala, 1967, pp. 171-173. غالب عبد الكريم. دفاع عن الدميقراطية: بحث تاريخي تحلييل. املحمدية : مطبعة فضالة، Como organização de Parlamento unicameral .1967،ص ou bicameral pode ter significativas implicações 173 -171 sócio-políticas, é importante compreender as 3. NGONO TSIMI Landry. L’Autonomie administrative et motivações que fundamentam a escolha entre financière des collectivités territoriales décentralisées : l’exemple estes dois tipos de organização. du Cameroun. Thèse : droit public. Paris : Paris-Est Créteil Val- de-Marne U.F.R De Droit, 2010, pp. 274,275. Esta pesquisa tem como objetivo avaliar 4. Unicameralism is a parliamentary organization based on a one chamber; whereas bicameralism requires a second chamber, as razões subjacentes para a instituição, a commonly called upper chamber, often representing sub-state entities.
28 Fathi ZERARI In the context of the North African region, of January 2016, Morocco has been hesitant about bicameralism thrives in some countries, like maintaining the upper chamber, established in 1962. Algeria and Morocco and declines in others, as is the case for Tunisia and Egypt. In these The aim of this research is to set out guidelines four countries people uprisings and the rise of that can be used to evaluate the legitimacy and/or Islamism have enhanced constitutional reforms the usefulness of a second parliamentary chamber pertaining to different matters, especially in the studied countries (Algeria, Egypt, Morocco parliament organization. Pros and cons of and Tunisia). Although the sociopolitical contexts bicameralism in these countries rely on various of these countries are not identical, the comparison justifications to defend their antagonist stances. of the reasons underlying the institution or the reinstatement of the second parliamentary Critics of bicameralism put forward chamber in, respectively, Algeria and Morocco, the uselessness or inefficiency of a second on the one hand, and the causes of its abolition parliamentary chamber, the parliamentary in Tunisia and Egypt, on the other hand, can shed or budgetary overload and even the lack of light on the sought guidelines. This comparison legitimacy of such an institution in a unitary is conducted within the frame of the existing State 5; for instance, M. VERPEAUX points out doctrinal debate on the justifications of a second that the unitary State is characterized by the parliamentary chamber in a unitary State and in unity of the political power which is translated, the light of the French bicameral experience, as a from a legal point of view, into the existence of a model of inspiration for many Arab and African single category of laws 6. However, the defenders countries, particularly the cases herein studied. of bicameralism believe that in a representative democracy, a second parliamentary chamber The research is, consequently, framed as a could improve representation; in this respect, E. debate about the legitimacy and usefulness of DUVERGIER emphasizes that the second chamber second parliamentary chambers in the studied is not and must not be an arbitrary work because countries. Therefore, the composition and it must reflect the very heart of the society and be role of the studied second chambers are to be its faithful representation 7 . stressed throughout the research. Nevertheless, the research starts from a larger context (second The tense debates between pros and cons of parliamentary chambers in unitary States) in bicameralism, particularly in the aforementioned order to avoid the risk of being confined within countries, raise questions about the legitimacy and/ the limits of the particular studied cases, without or the usefulness of a second parliamentary chamber. having grounds of comparison; meanwhile, the Indeed, Tunisia and Egypt renounced bicameralism research risks to drown in the particularities of after the popular uprisings, called ‘Arab Spring’. the different contexts and, hence, having flimsy Moreover, the justifications of bicameralism in Algeria grounds of comparison; therefore, the sources of and Morocco are asymmetrical; while the Algerian legitimacy and the role of the French Senate will second parliamentary chamber, instituted in 1996, provide more precise guidance to the research. has been consolidated by the constitutional revision Consequently, this research will discuss:
- the justifications of bicameralism in a unitary 5. SOMALI Kossi. Le parlement dans le nouveau constitutionnalisme State, stressing the originality of the French en Afrique. Essai d’analyse comparée à partir des exemples du bicameral model; Bénin, du Burkina Faso et du Togo. Law. Université du Droit et de la Santé - Lille II, 2008. French.
29 ISSN 1794-600X Número 14 Enero - Junio de 2018 The justifications of the second parliamentary chambers in the North African region: a comparative study of Algeria, Egypt, morocco and Tunisia
1. SECOND PARLIAMENTARY CHAMBERS after the style of the British one, but despite the IN UNITARY STATES triumph of their tendency, the arguments in favor of bicameralism persisted; indeed, B. D’ANGLAS Since democracy has become a source took the example of the United States of America, of legitimacy and the universal suffrage has ‘our elder in the career of liberty’, as he put it, asserted itself as a process of access to power in where the legislative power is vested in two 10 a representative or a semi-direct democracy, any chambers, which resulted in public peace . power that does not emanate from the people would have its legitimacy compromised. Thus, R. CARRE DE MALBERG gives a clear in front of a chamber elected by universal and explanation of this parliamentary organization equal suffrage, a second parliamentary chamber, in the federal states. He considers bicameralism in a unitary state, should be based on solid as an inevitable consequence, since the federal justifications; otherwise, it risks to be a pale state has two kinds of members: the citizens who imitation of the lower house or even be abolished. constitute the federal people, on the one hand, 11 If bicameralism has asserted itself in federal and the Federated States, on the other . states 8, the legitimacy of a second parliamentary chamber in a unitary State could be compromised. In the United States of America, for example, bicameralism is copied by all federated states 12. This is a very clear indication that AIs bicameralism an exclusive feature bicameralism is not an exclusive feature of of federal States? federal States. Furthermore, Utah justifies this Chronologically, the democratic second mode of organization, in article VI, Section 4 parliamentary chamber in unitary states of its constitution, by the representation of the appeared after the representative chamber of territorial entities (the districts) the federated states which could be interpreted 13. Should bicameralism, in unitary States, be as an institutional mimesis, but in a different perceived as a form of institutional mimesis in a context. However, the second democratic chamber different context? This hypothesis is immediately was preceded by the aristocratic chamber, excluded because the second federal chamber representing nobility, such is the case of the is itself preceded by the aristocratic chamber, English House of Lords. representing the nobility; furthermore, second chambers in unitary States are justified by British bicameralism, as R. SAINT-ETIENNE atypical arguments, regardless of a particular expresses it, was the result of an accommodation mode of representation. of the interests of the nobility with those of the people 9. With the success of the American and French revolutions and the overthrow of the B. Asymmetry of the Foundations of yoke of monarchism and absolutism, democracy Bicameralism in Unitary States has become a source of legitimacy and universal Although the historical course of suffrage has asserted itself as the basis of power. bicameralism seems to be closely linked to that Bicameralism in democratic federal states is then of the principle of separation of powers, the a necessity to ensure the representation of the establishment of most second parliamentary peoples of the federated States on a demographic chambers respond to practical 14 and atypical basis by the lower house, while the upper chamber equally represents the federated states, regardless of their demographic weight. 10. MORABITO Marcel. Ibid. p. 116.
After the French Revolution, in 1789, the 11 CARRE DE MALBERG Raymond. Contribution à la théorie de representatives of the people dreaded the return l’État. Paris : CNRS éditions, 1985, p.557. of the power of the nobles via an upper house, 12. with the exception of Nebraska which considers it unnecessary. 13. UTAH STATE LEGISLATURE. Utah Constitution [online]
30 Fathi ZERARI reasons which depend on the particularities of in various fields, acting as second chambers. In each country; as a result, their names, roles and Luxembourg, the Council of State, composed of compositions are also atypical 15. former ministers, former trade unionists and academics, is consulted before adopting laws 19. An overview of the underlying reasons for This is also the case in Greece, where the Scientific the second parliamentary chambers in unitary Council assumes the same role 20. states shows that they are diverse and that their originality cannot be confirmed independently The justification of bicameralism can also be of the context of each experiment. Moreover, conceived in the intention to weaken the role of the second chambers do not have the same the Parliament, as is the case in Tunisia before prerogatives because the ecosystem conditions 2011 when the upper chamber (The House their functions. of Councilors) was rather an advisory body, intended to hinder the lower house at the request For example, one of the justifications of of the President of the Republic 21. It was almost bicameralism has to do with the prevention the same case in Burkina Faso, where the House of political dead-ends, particularly when the of Representatives had only advisory prerogatives lower chamber and the government are at the and could not formulate its opinions unless they antipodes of one another on certain questions, were requested 22. The referral to the House of which may lead each of them to attempt to Representatives belongs to the Government, dominate the other 16. In this case, the upper the lower house (the National Assembly) chamber would anticipate such a situation or, and to the Permanent Bureau of the House of eventually, would assume the role of mediator Representatives in order to request an advisory in order to reconcile the two parties or, at least, opinion on a legislative initiative deemed to be of reduce the intensity of the conflict. national importance 23.
In addition, the upper chamber can be The asymmetry of the foundations of introduced in the political system with the bicameralism in unitary states may explain the intention of containing the impulsiveness of the divergence of bicameral experiences in different lower house, due to political tensions or lack of countries. For example, in the two previous countries, expertise, which ensures the stability of the legal the paths of bicameralism have, in fact, diverged order 17 and constitutes a guarantee against the though both countries are inspired by the French tyrannical omnipotence of the majority in the bicameral model. While the House of Representatives lower house 18. of Burkina Faso, dissolved on January 23rd, 2002 24, was replaced by a strong Senate with the right In some countries, a way of organizing the legislature, dubbed ‘quasi-bicameralism’ or ‘occult bicameralism’, can also exist; such a 19. GELARD Patrice. Rapport introductif de synthèse de la solution is adopted in Luxembourg or Greece commission de Venise. SENAT-PALAIS DE LUXEMBOURG. Le bicamérisme et la représentation des régions et des collectivités by means of institutions, composed of experts locales : le rôle des secondes chambres en Europe, Palais de Luxembourg, 2008. Paris : les colloques du Sénat-les actes, 2008, pp. 28-29. 15. CHRAYET Liamine. The Reality of Bicameralism and the 20. Idem. Position of the Algerian Experience (in Arabic). in Majallat Al Fikr 21. BEN HAMMED Mohamed Ridha. La compétence des secondes Albarlamani, 2002, n°1, p. 22. chambres. in Les secondes chambres parlementaires. Tunis : Recueil des cours de l’A.I.D.C., 2004, vol. XIII, XIXème session, p. 92. 22. However, since the constitutional revision of 4/11/2000, the opinion request from the House of Representatives had become 16. For instance, the lower house might hinder the action of the mandatory when the legislative initiatives were related to government and the latter may paralyze the implementation of laws citizenship, civil rights, the exercise of civil liberties, nationality, by not issuing the necessary bylaws. matrimonial regimes, protection of freedom of the press and access to information and the integration of national cultural values. 17. QALOUCH Moustafa. Political Regimes, Part I : The State . Despite the non-binding nature of these opinions, the lower house Rabat : éditions & distribution Babel, 1985, p. 170. used to take them into account. KIEMDE Paul. Le bicamérisme en Afrique et au Burkina Faso. in Revue Burkinabé de droit, n° 2, janvier 1992, p. 31. 23. Idem. 18. See for example: MASTIAS Jean. Système majoritaire et 24. Article 78 of The CONSTITUTION of BURKINA FASO bicamérisme. in : Pouvoirs, 1998, n° 85, pp. 90-91. [online] 31 ISSN 1794-600X Número 14 Enero - Junio de 2018 The justifications of the second parliamentary chambers in the North African region: a comparative study of Algeria, Egypt, morocco and Tunisia to initiate, amend and pass laws 25, the Tunisian i. A brief historic overview on the Chamber of Counselors was evicted from the political origin and evolution of the French scene by virtue of the 2014 constitution 26. senate The present position of the French Senate is a C.The Originality of the French culmination of several decades of evolution. Over time, The Senate has been able to adapt to its Bicentennial Bicameral Model socio-political environment in order to distinguish In the European context, there exists highly and consolidate its bases of legitimacy and its decentralized States, such as Spain or Italy, that role. This is why the French bicameral experience can be taken as models of bicameral countries is perceived as a model for many countries, where the upper house has been consolidated especially francophone Africa and the Arab world. over time, in response to the evolution of its The second parliamentary chamber in France sub-state territorial entities’ autonomy 27. was established by the Constitution of the Year III Nonetheless, the choice of the French bicameral under the name of the Council of Elders (Conseil experience is inherent, on the one hand, to the des Anciens), whose role was to approve or reject fact that the Senate is deep-seated in the French the laws which the First Chamber, the Council of political system and, on the other hand, to the Five Hundred (Conseil des Cinq-Cents), proposed influence of this bicameral experience, as a model 30. This second chamber finds its inspiration in to be emulated and followed by many African and the House of Lords in Great Britain, which has, for Arab countries. a long time, exercised a certain control over the political action of the King and his Prime Minister In Spain and Italy, for example, there is no with the House of Commons 31. great difference between the two chambers of parliament because the mode of election of the After a period of hesitation between second chambers in Italy 28 and Spain makes monarchism and republicanism, the them almost duplicates of the lower house, which constitutional laws of 1875 marked the birth makes the reason of bicameralism in these two of the Senate, which became the centerpiece countries unclear. Nevertheless, no one would of the compromise between monarchists and consider the French Senate as a copy of the lower republicans 32. Some constitutionalists draw house (the National Assembly). attention to the ‘commune’, as a basic territorial unit and a sociological reality, on the basis of M. PRELOT considers that the French Senate is which the Senate of this period (1873-1875) was intimately interrelated with the existence and well- edified 33. The communes provided the Senate being of the Republic; his words in this respect with bases of legitimacy that are different from are very expressive: ‘In France, when the Senate those of the lower chamber. Indeed, more than is weak, the Republic is weak. When the Senate seven decades before, General C. DE GAULE, in is strong, the Republic is strong. When there is his speech, delivered in June 1946, focused on the no Senate, there is no Republic 29’. Hence, a brief existence of a Senate elected by representatives of historical overview on the French Senate would local authorities. He particularly pointed out that be very useful to highlight its evolution and its the great trends of general policy are naturally originality in the representation of French society. reproduced in the lower chamber, local life, Faso_2012.pdf?lang=en> (consulted on 11/12/2016, 13 :00). 30. SENAT. Histoire - 8 périodes - 1795-1799 : le Conseil des 25. See articles 97 and 98 of The Constitution of Burkina Faso. Anciens [online] 32 Fathi ZERARI too, has its tendencies and rights that should be representation of local authorities cannot be reproduced in the Senate 34. equated with the representation of federated states or corporations 39. ii. The French senate and the Could it be said, then, that the sub- representation of local life State territorial entities, at least in France, L. FAVOREU, president of the French are represented, as a whole, by the Senate, Association of Constitutionalists (AFC), believes without one or more of them having a separate that the French bicameralism is original and representation like the federated states? serves, to some extent, as a model, due to the idea In fact, the actions of the Senate reveal that of representation of local life in the upper chamber it represents local interests and, hence, defends in addition to the representation of the whole the autonomy of local collectivities 40. Indeed, people as individuals in the lower chamber 35. In A. DELCAMP’s thesis, which gives an exhaustive his own words: ‘There is a representation of the account of the preparatory work of the legislative cantons at the departmental level, of departments texts relating to local collectivities, over the at the regional level and of all local authorities at a period 1969-1990, highlights the significant role national level by the Senate’ 36. of the Senate, during this period, in protecting the status and the prerogatives of local collectivities However, it must be emphasized that the 41. The former President of the French Senate originality of the French Senate is also due to from 1968 to 1992, A. POHER, had confirmed the fact that it differs from the second federal it by saying that: ‘Decentralization and the chambers for many reasons, especially that Senate are indissociable; by vocation, the Senate, it is not supposed to defend, as a matter of entrusted by the Constitution with ensuring the priority, the interests of local and regional representation of the territorial collectivities authorities and it does not ensure the specific of the Republic, had to animate this long march and egalitarian representation of all local which led to the present decentralization 42. and regional authorities, given their high In the same direction, C. PONCELET, a former number, compared with that of the federated President of the Senate, too, from 1998 to 2008, states. The French senator ensures the pointed out that, in addition to the representation overall representation of all local authorities, of the French people in the lower house, the unlike the Swiss or American senators who representation of local and regional authorities in each ensure the organic representation of the second chamber was a ‘constitutional bonus’ a Canton or a state 37. Indeed, R. CARRE De for the decentralization process 43. EMALBERG highlighted the difference between the representation of the federated states by The French Constitutional Council, in its the second federal chamber and the French decision of July 6th, 2000, on the law pertaining Senate. He pointed out that the two French to the election of Senators, clarified that the role parliamentary chambers are elected in different of the Senate in representing local and regional ways, but this does not imply any distinction authorities, in accordance with the article 24 of between the members of the State 38. In other the Constitution, implies that it must be elected words, F. ROBBE says that local communities by an electoral body which is, itself, the emanation are represented in the Senate, as communities of these communities and that, consequently, this of citizens and not as legal entities; thus, the 39. F. ROBBE points out that such a role would require 34. DE GAULE Charles. Discours et messages T. 2 dans l’attente constitutional revision because it would disturb the institutional 1946-1958. Paris : Plon, 1970, p. 9. balance, established by the 1958 constitution. ROBBE François. 35. ASSOCIATION FRANÇAISE DES CONSTITUTIONNALISTES. op.cit., p. 551. Le bicamérisme, journée d’études du 17 mars 1995, collection droit 40. Idem. public positif, in Economica. Marseille : Presses universitaires 41. Ibid., p. 461. d’Aix-Marseille, 1995, p.11. 42. DELCAMP Alain. Le Sénat et la décentralisation. Paris : 36. Idem. Economica, 1991. 37. ROBBE François. La représentation des collectivités territoriales 43. SENAT. Discours de M. Christian PONCELET en clôture des États par le sénat : étude sur l’article 24 alinèa 3 de la constitution généraux des élus locaux de Picardie, vendredi 30 juin 2006. [online] française du 4 octobre 1958 .Paris : L.G.D.J., 2001, p. 61. 33 ISSN 1794-600X Número 14 Enero - Junio de 2018 The justifications of the second parliamentary chambers in the North African region: a comparative study of Algeria, Egypt, morocco and Tunisia electoral body must be essentially composed of pressure of popular uprisings and the rise of members of the deliberative assemblies of local Islamism. The governments of the Maghreb and regional authorities 44. countries 49 have followed different paths as regards to the role of Islam in society and more The representation of the territorial specifically in politics. Algeria, during the 1990s, communities of the Republic by the Senate goes fought Islamism, incarnated by the Islamic hand in hand with the mode of designation Salvation Front (Front Islamique du Salut-FIS) of Senators, elected by an electoral college by armed force, which provoked a civil war that dominated by local representatives; consequently, threatened the very existence of the Republic, it expresses the national sovereignty from a before it resorted to civil concord and then to different perspective than the lower chamber 45. national reconciliation in the late 1990s and early 2000s. Tunisia’s reticence to conservative Islam Some French constitutionalists emphasize that has been maintained since the independence, in the neglect of the representation of territorial 1956, thanks to the teachings of its leader and communities by second chambers in unitary States first President of the Republic, H.BOURGUIBA. would undermine their very reasons to exist as is As for Morocco, the King himself assumes the the case of the Italian 46 and the Spanish senates 47. role of the ‘Commander of the believers’ (Amir The territorial representation is a representation Elmouminine) 50. In Egypt, Muslim Brotherhood of the people conceived from a human geographic organization seized the political power in 2012, perspective; i.e., a representation of territorialized after the popular uprising in 2011, to be excluded human communities, at the municipal level as well by the army in 2013. The stance of each country, as at the departmental and the regional levels 48. as regards the role of Islam in politics, might be a part of the explanation to the institution, the Though the French Senate is a model for the reinstatement or the abolition of the second herein studied countries, their particular contexts parliamentary chambers in those countries, but led them to have contradictory positions as regards each country has got its own particularities. the bicameral organization of the parliament. A.The abolition of the Tunisian and the 2. NORTHERN AFRICAN UPPER Egyptian Upper Chambers CHAMBERS BETWEEN CONSOLIDATION Some second parliamentary chambers AND ABOLITION could not adapt themselves to the changing realities and circumstances, particularly those In the North African region, as well as in which were not distinguished from the first other parts in the world, second parliamentary chamber, either by their modes of designation, chambers in unitary States are either thriving or their compositions or their roles. For instance, declining for various reasons. since the beginning of the twentieth century, the trend, in Scandinavian countries, had been Since the 1990, the studied countries have toward the eviction of second parliamentary witnessed constitutional reforms under the chambers. Finland, in 1906, Denmark, in 1953, Sweden, in 1969, Iceland, in 1991, and Norway, in 2008, all gave up the bicameral system in favor 44. CONSEIL CONSTITUTIONNEL. Décision n° 2000-431 DC du 6 unicameralism 51. The second chambers in these juillet 2000 [online] 34 Fathi ZERARI dominated the upper chamber and, consequently, ‘Senators’, but also to rehabilitate the role and paralyzed the legislative process; in Sweden, the composition of the second chamber 56. Though second chamber was considered too conservative; the comparison is not fair, but the pale role of in Norway, the upper chamber was nearly a copy the Tunisian upper chamber did not provide of the lower house in regard of its composition its defendants in the Constituent Assembly and organization 52. Consequently, other forms of with strong arguments. In addition, the feeble representation of political minorities in the lower territorial entities in Tunisia do not equate with house have been adopted and the second chamber the French territorial collectivities that constitute has been ousted from political life. More recently, the bases of the Senate’s legitimacy (see II, 3-2). the ‘Seanad Eireann’, the upper house of the Irish Though two thirds 57of the members of the Parliament, established by the 1937 Constitution, Councilors Chamber are elected by, and from narrowly escaped abolition in a referendum held among, the members of local assemblies 58, they on October4th, 2013. did nothing to reinforce the local collectivities to consolidate their sources of legitimacy 59 . In a different context, the Tunisian ‘Councilors Chamber’ succumbed to the drastic political According to the Tunisian echoes, the causes changes and was officially abolished by virtue of of the abolition of the second chamber revolves article 50 of the current constitution 53. Tunisia, around the demographic and geographical which triggered what is called ‘Arab spring’ in smallness of Tunisia, compared to the high cost 2011, finally adopted a new constitution on of this chamber and its almost obliterated role 60, 27 January 2014 with 92% of the votes in the which made of it a burden on the political life and constituent assembly 54, which does not reflect on the State budget 61. two years of stormy and polarized debates 55. This constitution, hailed internationally as the Some days before the adoption of the Tunisian first Arab democratic constitution, represents constitution, Egypt ratified its new constitution a remarkable breakthrough, not only in the by referendum on 14 and 15 January 2014. This North African region, but in the Arab World, too. constitution should be understood within the Nevertheless, the constituents have decided to get scope of the very specific context of its adoption, rid of the upper chamber, established in 2002. but also within the Egyptian constitutional history because it comprises a large number of provisions It has been explained above that the Tunisian of the previous constitutions 62. Generally second chamber was conceived with the speaking, it does not reflect the same spirit of the intent to weaken the parliament and had only consultative prerogatives (II, 2). Therefore, it did not succeed to enroot itself in the Tunisian 56. For more details on this question, see GOGUEL François. political regime, after the fashion of the French La réhabilitation du bicamérisme en France (1946-1958). in Council of the Republic (Conseil de la République), Mélanges Léo Hamon. Paris : Economica, 1982, pp. 325-333. under the 1946 constitution, whose members, 57. The other third of the members are elected among employers, farmers and employees at the suggestion of the relevant the Counselors of the Republic (Conseillers de professional orders. la République), sought legal and political means 58. Each governorate elected one or two counsellors according not only to regain the prestige of the title of to its demographic density. Article 19 (Amended by constitutional law n° 76-37 dated April 8, 1976, and by constitutional law n° 2002-51 dated June 1, 2002). LEGISLATION.TN 35 ISSN 1794-600X Número 14 Enero - Junio de 2018 The justifications of the second parliamentary chambers in the North African region: a comparative study of Algeria, Egypt, morocco and Tunisia Tunisian constitution as it reaffirms authoritarian rather consolidated an authoritarian regime. power without serious consideration of the Compared with the role of the French Senate, people’s expectations 63. the composition of the former Egyptian upper chamber disregarded the territorial perspective The current Egyptian constitution abolished in representing the Egyptian people, though ‘Majlis Ashoura’, the upper house, created in 1980 Egypt is the first Arab country to adopt territorial by a constitutional amendment and whose name decentralization in 1909 67. can be translated in English by ‘Consultative Council’. This chamber was abolished after an Moreover, the role of the upper chamber intense controversy because of the objections was limited and, on most legislative matters, of the traditional parties within the Committee the lower house (the People’s Assembly), had in charge of drafting the new constitution, always the last word, in case of disagreement 68. composed of fifty personalities (the Committee of According to A. FARGHALI, a former councilor, the Fifty ‘Lajnat alkhamcine’). This committee opted Councilors House was rather created to satisfy for unicameralism with 23 votes in favor and the regime ‘sympathizers’ who were not lucky 19 against, which shows that the gap between in the elections of the lower house 69; hence, the pros and cons of bicameralism is not impressive people ridiculed it during the last elections, as 64 . After the ratification of the project by the participation rate did not exceed 7% 70! The constituent referendum, the present parliament comparison between the Tunisian upper Chamber is composed of the House of Representatives and the French Council of the Republic can be ‘Majlis An-Nowwab’, in accordance with article reiterated here, too, because the Egyptian upper 101 of the Constitution 65. chamber did not seek to improve its sources of legitimacy nor its role and, therefore, it gave a The composition of the former upper tarnished picture of bicameralism, especially in chamber reveals its feeble legitimacy. Two the Constituent Committee of Fifty. thirds (2/3) of the members of this chamber were elected by direct universal suffrage and one third (1/3) of the members were appointed B. The establishment of the Council by the President of the Republic 66. of the Nation in Algeria and the reinstatement of the House of The mode of designation of the two thirds Councilors in Morocco of the upper house was not different from the In Morocco, the socio-political fluctuations have mode of designation of the members of the led to hesitation about the adoption of a bicameral lower house and the mode of designation of the or a unicameral organization of the Parliament. remaining third does not go hand in hand with In the 1962 constitution, the country adopted the democratic theory nor with the principle of bicameralism and abandoned it in the following separation of powers. As a result, the Egyptian constitutions (the constitutions of 1970 and 1972) upper chamber did not bring any new form and it was only in the 1996 constitution 71 that of representation of the Egyptian people, but 67. ALMABIDHINE Safouane, ALTARAOUNA Houcine & 63. Idem. ABDELHADI Taoufiq. Centralization and Decentralization in the organisation of Local Administration (in Arabic). Amman : 64. VOICE OF THE EGYPTIAN COPTS. Wading and confusion Alyazourdi, 2011, pp. 18-19. in the Commission of Fifty, following the decision to abolish the Shura Council (in Arabic) [online] 68. ALYAOUM ASSABEA [online] 36 Fathi ZERARI the second parliamentary chamber, the House of one of three upper chambers in the world that can Councilors, has been reinstated 72 with three fifths censure the government 78. (3/5) of its members elected by the territorial collectivities and two fifths (2/5) elected, in each In Algeria, the political reforms, engaged region, by the professional chambers and the since 1989 79, have sought to find constitutional representatives of wage earners 73. mechanisms to regulate the relations between the political institutions, according to the principles The composition of the Moroccan upper of specialization, organic independence and chamber reflects the political will of the Monarch functional cooperation 80. The institution of the Mohamed VI, who, in his royal speech, pointed Council of the Nation ‘Majlis Al-Oumma’ might out the inadequacy of the first chamber, which be conceived as one of those mechanisms, as does not represent the live forces of the society, the justifications of bicameralism, according to in particular the representatives of wage earners, official sources and doctrinal analyses, revolve territorial collectivities and professional orders around: guaranteeing the continuity of the State 74. The second parliamentary chamber allows the 81, maintaining the stability of the executive power Monarch to defend his interests without being 82, compensating the eventual lack of experts in directly implicated as a political actor, while he the lower house 83 and increasing representation continues to open up the political system within 84. The perennial character of this chamber and the context of the lower house 75. The composition its composition reflect those four ideas since two of the Moroccan upper chamber reminds of the thirds of its members are elected by, and from project of constitutional amendment 76, proposed among, the deliberating organs of the territorial by the former French President, Charles De collectivities and one third is appointed by the Gaulle, but rejected by the French people via a president of the Republic amongst national referendum held on April 27th, 1969, in which the experts in the socioeconomic domains 85. Senate was meant to ensure a dual representation: political and socioeconomic 77. 78. KETTERER James. loc.cit. As regards the role of the Moroccan upper 79. Algeria has renounced socialism and the unique party regime chamber, it can be said that it is far from being since the issuance of the 1989 constitution. obliterated; though the preeminence of the lower 80. MOUSTAFA AL BAHRI Hassen. Exchanged Control Between the legislative power and the executive power To Ensure the Enforcement chamber, it disposes of considerable powers, of Constitutional Rules: A Comparative Study (in Arabic). Thesis : in comparison with the former Tunisian and Public Law. Egypt: Ain Shems University, 2006, p. 720. Egyptian upper houses and the current Algerian Council of the Nation, as it initiates laws, proposes amendments and adopts laws; furthermore, it is 81. AWABDI Ammar, ‘The role of the Council of the Nation in Rooting the Rule of Law’ (in Arabic). Council of the Nation. The Theoritical and Political Foundations of the Council of the Nation, and Michel Rousset. KETTERER James. From One Chamber To November 1998, Algiers. Algiers: Editions of the Council of the Two: The Case of Morocco, in the Journal of Legislative Studies, Nation, 1998, p. 33. Spring 2001, vol. 7, no. 1, p. 18. 72. CUBERTAFOND Bernard. Le système politique marocain. Paris : éditions l’Harmattan, 1997, p181. 82. CABANIS André et MARTIN Michel-Louis. Les Constitutions 73. PARLEMENT DU MAROC, CHAMBRE DES d’Afrique Francophone. Évolutions récentes. Paris : Karthala, REPRESENTANTS. Constitution du Maroc du 13 septembre 1996 1999, p. 123. [online] 37 ISSN 1794-600X Número 14 Enero - Junio de 2018 The justifications of the second parliamentary chambers in the North African region: a comparative study of Algeria, Egypt, morocco and Tunisia The justifications of the Council of the Nation CONCLUSION are also reflected by the role assumed by this This research has attempted to seek guidelines chamber. Before the constitutional revision of in order to evaluate the necessity of a second January 2016, the legislative role of the Council parliamentary chamber in the Four studied of the Nation was limited to the approval or countries (Algeria, Egypt, Morocco and Tunisia), disapproval of legislative initiatives, already where the democratic processes are taking place approved by the lower chamber ‘The National at different speeds, in proportion to the pressure and Popular Council’ (Al Majlis A-Sha’abi Al- put on the governments of those countries by Watani). After January 2016, this role has been their peoples. consolidated as the members of this chamber, likewise the deputies and the government, can Utilizing the comparative approach and with propose laws pertaining to local organization, a particular reference to the French tradition as a territorial planning and territorial division source of inspiration for the studied countries, the 86 . Moreover, law projects, initiated by the research tried to examine the reasons underlying government, are first submitted to the Council of the adoption or the abolition of the second 87 the Nation when they relate to these matters ; a parliamentary chamber in these countries. priority recognized to the French Senate since the 88 2003 constitutional reform and, subsequently, First, it has been made clear that bicameralism inspired the Algerian constituent legislature. is not an exclusive feature of federal States, just as unicameralism is not a distinctive feature of As for the control of the action of the unitary States. Government, the Members of the Council of the Nation may address oral and written questions In a unitary State, a second chamber to the members of the Government; they can parliamentary is unnecessary if the modes of also organize field visits in order to recognize designation of the members of both chambers the reality on the ground, remain informed about would generate the same forms of representation, the concerns of the citizens and ensure that the particularly if the role of the upper chamber has law is actually implemented. In addition, the no effective influence on the lower chamber or on Constitutional revision of January 2016 extends the government. the prerogatives of the Council of the Nation; hence, in addition to the permanent committees, In Algeria and Morocco, the composition the Council of the Nation, as well as the lower of the upper chambers takes into account the house, can create temporary committees to collect representation of local life and the socioeconomic 89 information on any issue, at the national level . interests. The prerogatives of both chambers indicate that they are far from being mere The Algerian bicameral experience is consultative chambers; moreover, their actual relatively recent, compared to the bicentennial legislative role as well as their control of the French model, but the mission of ‘expert action of the government, especially in Morocco, of territorial decentralization’ has been corroborates this claim. The gradual rooting of consolidated by the constitutional revision of these two chambers in the political life immunes 2016, though it needs to be rooted in real local them from abolition. Indeed, the recent Algerian life, particularly through the consolidation of constitutional revision in 2016, has consolidated the autonomy of territorial collectivities that the legislative role of the Council of the Nation as are the source of legitimacy of two thirds of the well as its control of the governmental action. members of the Council of the Nation. In order to reinforce their legitimacy and their efficiency, the upper chambers in Algeria and Morocco should never lose sight of their roles as defenders of their sources of legitimacy 86. See article 136 of the Algerian Constitution. Ibid., p. 25. (the local communities); otherwise, they lose 87. Idem. their real reason of existence and would be easily 88. HANICOTTE Robert. Priorité au Sénat. in Pouvoirs, 2004, N°111, pp. 159-176, p. 160. ousted from the political scene, as it happened in Morocco between 1970 and 1996. 89. See article 134 of the Algerian Constitution. op.cit., p. 25. 38 Fathi ZERARI The abolition of the Tunisian upper over the parliament. However, Egypt is one chamber, however, can be understood given of the biggest countries in the MENA region, the relative geographic and demographic geographically and demographically; in addition, smallness of Tunisia, the feeble autonomy of the Egypt possesses the oldest decentralized decentralized territorial communities and the territorial communities in the Arab World, obliterated role of the former second chamber, which can provide solid democratic bases for not to mention its financial cost. Bicameralism is, the composition of a second parliamentary then, not necessary in Tunisia, unless territorial chamber. Moreover, the role of a parliamentary communities gain more autonomy and, chamber, emanating from the people perceived therefore, would require political representation from a different perspective (territorialized at the national level. In such a different context, communities), would, at least, be translated in bicameralism would be foreseeable, especially in the power to veto the laws approved by the lower better economic conditions. chamber, particularly those pertaining to local life, and in the right to be informed about issues As regards the abolition of the Egyptian upper relating to local life, whether by oral or written chamber, this research assumes that the Egyptian questions addressed to the government or via constituent assembly ‘Lajnat Al-Khamcine’ did special committees created for this purpose. not make a clear distinction between the actual An efficient interaction between the upper composition and prerogatives of the former upper chamber and the territorial communities may chamber and the necessity of bicameralism for enhance the autonomy of the latter and enlarge Egypt. The composition of the former upper the prerogatives of the former. Consequently, the chamber disregarded the representation of the reinstatement of a second parliamentary chamber decentralized local entities and rather reinforced in Egypt is highly recommended. the hegemony of the President of the Republic 39 ISSN 1794-600X Número 14 Enero - Junio de 2018 The justifications of the second parliamentary chambers in the North African region: a comparative study of Algeria, Egypt, morocco and Tunisia BIBLIOGRAPHY • ALMABIDHINE Safouane. ALTARAOUNA Bicameralism and the Position of the Houcine & ABDELHADI Taoufiq. Algerian Experience (in Arabic). in Majallat Centralization and Decentralization in the Al Fikr Albarlamani, 2002, n°1. organisation of Local Administration (in Arabic). Amman : Alyazourdi, 2011. • CONSEIL CONSTITUTIONNEL. Décision n° 2000-431 DC du 6 juillet 2000 [online] 40 Fathi ZERARI colloques du Sénat-Les actes, 3 juin 2009. • Manuella BRILLA. La probable réforme • EGYPTIAN STATE INFORMATION SERVICE impossible du Sénat italien. in Revue Française WEBSITE. The constitution of the Arab de Droit Constitutionnel, n° 107, 2016. Republic of Egypt, Ratified on May 22, • Mark LYNCH. The Arab Uprisings Explained: 1980. [online] 41 ISSN 1794-600X Número 14 Enero - Junio de 2018 The justifications of the second parliamentary chambers in the North African region: a comparative study of Algeria, Egypt, morocco and Tunisia • ROBBE François. La représentation des 2008. French. 42 Fathi ZERARI