Compare and contrast among the compositions, powers and functions of the Malaysian Dewan Negara, the Senate of the US Congress and the House of Lords of the UK Parliament.

- Why is it said that the US Senate is the most powerful second chamber in the world?

- How did parliament develop?

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The terms “upper house” or “second chamber” apply to all the three chambers discussed

in this paper. In the United Kingdom, the House of Lords’ existence pre-dated the House

of Commons so it is upper in time, although the Commons is now more powerful.

In the United States, the Senate is on the first floor of Congress, whereas the House of

Representatives is on the ground floor, making the Senate the upper house physically.

For a number of reasons the term second chamber is apt for the Senate, the US

Constitution deals first with the House of Representatives, the Senate was not directly

elected until 1913 and the Representatives retains primacy with money.1 These three

reasons apply deductively to the Dewan Negara of Malaysia’s Parliament.

Origins and development of parliament

There were a number of institutions in the early history of mankind that had various

powers approximating those of a governmental organization, such as the legislative

assembly and senate in ancient Rome2, as well as the Gerousia in Sparta, one of the

ancient Greek city states.3

“Parliamentum” is a latin word. The word “parlement” is an old French word and relates

to the current French word “parle” to talk.

1 Ken Bradshaw & David Pring Parliament & Congress University of Texas Press, Austin, 1972 at page 168.2 Abbott, Frank Frost A History and Description of Roman Political Institutions. Elibron Classics, 1901.3 Cartledge, Paul. The Spartans: The World of the Warrior-Heroes of Ancient Greece. 2003. Vintage Books.

Parliament was the original legislature in England, Scotland, Ireland, Great Britain and

the United Kingdom. It is also the name given to legislatures of various former colonies

of Britain.4

In fact parliament was never consciously established, rather it was a product of

evolution.5 It is said that it has always been eminently practical, not philosophical.6

Although many states developed their own organizations of representation, leadership,

governance and legislating in the middle ages in Europe, it was the English model with

the bicameral legislature that became very popular in the early nineteenth century, and

was replicated all over Europe.7

In England from the time of fifth century incursions by the Saxons who established

dominion, the Kings took council with ‘witan’ or ‘witenagemot’, bodies of approximately

100 lay and ecclesiastics to counsel him and discover and declare the law.8 These were

great, wise and powerful men, and the king needed them to maintain authority in the

Kingdom.9

Later Plantagenet Kings used medieval courts and councils to consult the great, or

“magnate” men, to secure their support and dispense justice.

In 1066 William, the Duke of Normandy, defeated Harold the Saxon and assumed the

throne. He introduced the feudal system and barons, or tenants-in-chief, were granted

land on the condition they hold down the conquered territory. These nobles assembled in

4 Britannica 1998, 15th edition, volume 9, page 191.5 Nicholas Baldwin Membership & work of the House of Lords in Brice Dickson and Paul Carmichael, editors House of Lords: It’s parliamentary and judicial roles, Hart Publishing, 1999, at page 30.6 David Menhennet & John Palmer, Parliament in Perspective: a background book, The Bodley Head, London, 1967 at page 32.7 Paul Carmichael & Andrew Baker, Second Chambers: A comparative perspective, in Brice Dickson and Paul Carmichael, editors House of Lords: It’s parliamentary and judicial roles, Hart Publishing, 1999, at page 71.8 Nicholas Baldwin Membership & work of the House of Lords in Brice Dickson and Paul Carmichael, editors House of Lords: It’s parliamentary and judicial roles, Hart Publishing, 1999, at page 29.9 David Menhennet & John Palmer, Parliament in Perspective: a background book, The Bodley Head, London, 1967 at page 23.

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a Magnum Concilium three to four times per year for a few days at a time, to settle

disputes, regulate affairs of the tenancies, organize military subjugation of lands, agree to

new taxes, make laws and assist with state administration. The king presided over the

council.10

In 1215 the barons overbore the will of the King, forcing him to sign the Magna Carta, to

address a number of their grievances and thereby assert limitations on the authority and

power of the King.

The Curia Regis, or Kings Council, was a smaller body of semi-professional advisers to

solve problems that the courts of England at the time could not. During the thirteenth

century, joint meetings of it and the Magnum Concilium were held.11

However, rulers at the time knew that their personal revenue and that of the barons was

not enough to provide for all financial expenses, such as extraordinary wars. So they

began to summons representatives of the ‘commons’ or community, to their meetings to

win their support for broader tax proposals.12 These community assemblies met at

Westminster, and occasionally the term ‘parliament’ was used to describe them

In the early fourteenth century debates were held between two groups, or chambers, the

lords spiritual and temporal, on the one hand, and the knights and burgesses, representing

the shires and boroughs, on the other. Hence there emerged three distinct bodies: the

King’s Council, the Lords, and the Commons.13

The first Commons petition, or ‘bill’, was drafted in 1327, but of course they had no right

regarding the outcome, that would come later.14

10 Nicholas Baldwin Membership & work of the House of Lords in Brice Dickson and Paul Carmichael, editors House of Lords: It’s parliamentary and judicial roles, Hart Publishing, 1999, at page 29.11 Britannica 1998, 15th edition, volume 9, page 191.12 David Menhennet & John Palmer, Parliament in Perspective: a background book, The Bodley Head, London, 1967 at page 24.13 Britannica 1998, 15th edition, volume 9, page 191.14 David Menhennet & John Palmer, Parliament in Perspective: a background book, The Bodley Head, London, 1967 at page 28.

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In 1377 there was the first formal appointment of a Speaker to report on the results of the

Commons, notwithstanding that it was another 100 years before the House of Commons

was formally recognised.15

Also during the fourteenth century, the King’s Council, or Privy Council became

cohesive and separated from Parliament. By contrast the Parliament’s judicial functions

declined but its legislative functions, whether by royal initiated legislation, or petitions

from within the houses, increased. Such bills became law only with consent of the King,

however under King Henry VI, the consent of the Lords and Commoners also became

necessary.16 The Bill of Rights subsequently confirmed the power of Parliament to make

and repeal law.17

Financial control was central to the development of parliament, and during the Tudors’

reign, they summoned parliament only when they needed money, but members used such

opportunities to press claims and seek redress of grievances before they consented to

demands for money.18 Under Charles I and James II, this practice continued, and

eventually the Bill of Rights specifically prohibited the monarch levying taxes without the

approval of Parliament. It also provided that Parliament ought to be convened frequently

for the redress of grievances, helping to further consolidate its control over finances.19

Eventually during the Tudor period, monarchs rarely made law by royal proclamation,

notwithstanding that they still had the power. The practice developed that all laws would

be made by an act of Parliament.20

.

15 David Menhennet & John Palmer, Parliament in Perspective: a background book, The Bodley Head, London, 1967 at pages 24-25.16 Britannica 1998, 15th edition, volume 9, page 191.17 David Menhennet & John Palmer, Parliament in Perspective: a background book, The Bodley Head, London, 1967 at page 28.18 David Menhennet & John Palmer, Parliament in Perspective: a background book, The Bodley Head, London, 1967 at page 25.19 David Menhennet & John Palmer, Parliament in Perspective: a background book, The Bodley Head, London, 1967 at page 26.20 Britannica 1998, 15th edition, volume 9, page 191.

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In the fifteenth century members started advocating for freedom of speech in parliament

and in the Bill of Rights this was settled by providing that speech in parliament “ought not

be impeached in any court or place out of Parliament”.21

In 1642 William Lenthall first publicly professed the Speaker’s allegiance to the cause of

parliamentary freedom, and later Shaw-Fefevre, speaker from 1839 – 1857, severed ties

with the monarch in the Speaker’s chair and henceforth the Speaker became the custodian

of parliamentary rights and privileges.22

Although the Privy Council dated back to the time of Henry III (1216-1272), after the

Glorious Revolution, William and Mary found it too large, so there developed within it

an unofficial inner elite or Cabinet Council that became the real force at the monarch’s

side.23

During the restoration period of 1660-1688, after the short period without a monarchy,

the Tory and Whig factions developed. Subsequently, King William III chose his

councilors and officers of state from the two factions, but it proved unworkable, so the

practice then developed of choosing them from the party with the majority in the

Commons.24 Under Queen Anne’s reign, the Cabinet became a distinct policy making

body and met without the monarch.25

King George 1 could not speak English and spent much time in Hanover. His interest in,

and authority over the Cabinet Council waned. The influential ministers of parliamentary

Cabinet now determined national policies.26

21 David Menhennet & John Palmer, Parliament in Perspective: a background book, The Bodley Head, London, 1967 at page 27.22 David Menhennet & John Palmer, Parliament in Perspective: a background book, The Bodley Head, London, 1967 at page 28.23 David Menhennet & John Palmer, Parliament in Perspective: a background book, The Bodley Head, London, 1967 at page 30.24 Britannica 1998, 15th edition, volume 9, page 191.25 Britannica 1998, 15th edition, volume 9, page 191.26 David Menhennet & John Palmer, Parliament in Perspective: a background book, The Bodley Head, London, 1967 at page 31.

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Robert Walpole, the leader of the Whigs in the commons from 1721-1742 and Cabinet

emerged as the head of the government and the first Prime Minister. He ensured Cabinet

acted as a unit.27 Queen Anne still chose the Cabinet but was influenced by the

Commons.28

After 1830 the party system became entrenched.29

By the Parliament Act 1911, the House of Lords lost its veto power over government

legislation, the rationale being that the government is determined by the Commons, not

the Lords.

The House of Lords

Composition

There are a variety of types of members in the Lords’ chamber. Lords can be

distinguished between Lords Spiritual and Lords Temporal. The Lords Spiritual make

up, as at July 2010, twenty-six members being the Archbishops of Canterbury and York,

the Bishops of London, Durham and Winchester and twenty-one other bishops.30 Once a

Lord Spiritual retires from the bishopric, he also retires from the house.31

Lords’ Temporal can be divided into hereditary and non-hereditary peers. The Lords

used to be composed almost entirely of hereditary peers until the passage of the Life

Peerage Act 1958 which enabled peers to be appointed for life.32 Nowadays the great

majority of lords are non-hereditary as the House of Lords Act 1999 provided for a

27 Britannica 1998, 15th edition, volume 9, page 191.28 David Menhennet & John Palmer, Parliament in Perspective: a background book, The Bodley Head, London, 1967 at page 31.29 Britannica 1998, 15th edition, volume 9, page 191.30 Lords by party and type of peerage UK parliament website www.parliament.uk 31 Ken Bradshaw & David Pring Parliament & Congress University of Texas Press, Austin, 1972 at page 174.32 This act also allowed female hereditary peers equal rights, and Scottish hereditary peers full membership.

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reduction in numbers of hereditary lords to 92 – including 90 remaining members made

up of fifteen appointed by the whole House and seventy-five nominated by the respective

parties, plus the Earl Marshall and the Lord Great Chamberlain.33

Hereditary peers established their right of inheritance gradually. Originally they received

personal writs of summons as great barons in medieval times to attend the Magnum

Concilium. There was no rule that the ruler continue to summon them, nor their heirs,

but it became the practice, and eventually it became rare to withhold the expectation.34

Within the group of Lords Temporal, there is a class of Law Lords, or more correctly,

Lords of Appeal in Ordinary, appointed under the Appellate Jurisdiction Act 1876. This

law enabled twelve to be appointed, however with the passage of the Constitutional

Reform Act 2005 none of the remaining Law Lords will be replaced, and all of them are

barred from sitting in the House of Lords until they retire.

Eligibility requires that Lords must be at least 21 years old, not bankrupt, not convicted

of a felony, not jailed for twelve months or more and of UK nationality.35 In fact

membership of the Lords disqualifies membership of the Commons, but under the Life

Peerage Act, a person can disclaim a peerage.36

Members are not elected and, apart from travel and expense allowances, receive no

remuneration. Attendance is voluntary. There is no limit or fixed number of members.

Currently there are approximately 750.37

Historically the House of Lords has been dominated by the Tory, or Conservative party,

but after the introduction of the Life Peerages Act 1958, this is no longer the case. Most

33 Section 2(2) of the House of Lords Act 1999.34 David Menhennet & John Palmer, Parliament in Perspective: a background book, The Bodley Head, London, 1967 at page 31.35 The Standing Orders of the House of Lords relating to public business. Also David Menhennet & John Palmer, Parliament in Perspective: a background book, The Bodley Head, London, 1967 at page 31.36 Ken Bradshaw & David Pring Parliament & Congress University of Texas Press, Austin, 1972 at page 172.37 The House of Lords: a guide to business www.parliament.uk

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members are still aligned to a party, but there are a large number of unaligned members,

known as “cross-benchers”.38

Pursuant to section 18 and schedule 6 of the Constitutional Reform Act 2005 a Lord

Speaker is appointed, to be elected by the House. The Speaker must remain politically

impartial. Although the Speaker has a leadership role in the House, the Speaker does not

call on members to speak, nor call the House to order because the Lords is self-

regulating.39

There is a Leader in the House of Lords, the most senior member of the government

sitting in the Lords, whose responsibilities include managing the business of the House,

giving non-binding procedural advice and speaking for the House on formal occasions.40

Functions

The parliamentary website lists the Lords’ functions as twofold, to scrutinize government

activity and to revise legislation.41

The Bryce Royal Commission in 1918, that was set up to look at reform of the House of

Lords delineated four functions:

1. examine and revise bills from the Commons;

2. initiate bills of a non-controversial character;

3. delay a bill, but no more than to enable the opinion of the nation to be adequately

expressed;

4. engage in full and free discussion of questions of policy when the House of

Commons is without time.42

38 The House of Lords: a guide to business www.parliament.uk 39 Briefing: the work of the House of Lords: its role, functions and power & Companion to the Standing Orders and guide to proceedings of the House of Lords, both at www.parliament.uk 40 The House of Lords: a guide to business www.parliament.uk 41 Briefing: the work of the House of Lords: its role, functions and power www.parliament.uk 42 The Bryce Conference Report quoted in Nicholas Baldwin Membership & work of the House of Lords in Brice Dickson and Paul Carmichael, editors House of Lords: Its parliamentary and judicial roles, Hart Publishing, 1999, at page 38.

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Some suggest three other functions as scrutinizing the actions of the executive,

scrutinizing European Community legislation and regulations and acting as a

constitutional check.

The 1968 white paper commissioned to look at reform suggested the following seven

functions of the Lords:

1. be a supreme court of appeal [now repealed by passage of Constitutional Reform

Act 2005]

2. be a forum for debate;

3. revise public bills;

4. initiate less controversial legislation;

5. consider subordinate legislation;

6. scrutinize the executive; and

7. consider private legislation.43

Its legislative function takes up approximately 60% of its time44 and is arguably its most

important function. Close scrutiny of bills is painstaking and time consuming. The

Commons operates on strict time limits, so the work done by the Lords would otherwise

been done by the Commons or not done at all.45

Over the period 1970 to 1990 a high proportion of bills were amended by the Lords, and

a high number of amendments were contained within each bill. In fact the number of

43 Rodney Brazier, The Second Chamber: Paradoxes & Plans in Brice Dickson and Paul Carmichael, editors House of Lords: Its parliamentary and judicial roles, Hart Publishing, 1999, at page 56.44 Briefing: the work of the House of Lords: its role, functions and power www.parliament.uk45 Nicholas Baldwin The membership and work of the House of Lords in Brice Dickson and Paul Carmichael, editors House of Lords: Its parliamentary and judicial roles, Hart Publishing, 1999, at page 39.

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amendments per bill increased dramatically in the period 1987 -1990.46 In practice most

of the Lords amendments are accepted by the Commons.47

Scrutiny of bills is usually by a committee of the whole House, although more recently

enhanced by the use of public bills committees. This assists the Commons which is often

short of time.48

The Parliament Acts of 1911 and 1949 gave the Commons supremacy in relation to

financial matters. Both provided that the Commons can seek royal assent to a financial

bill if it has not been passed by the Lords after one month. As a consequence, the Lords

devote little time to financial bills.49

The House uses select investigatory committees, and although less in number than the

Commons, quality work is done.50 The first one set up was on the European

Communities in 1974.51 This and the Science and Technology Select Committee have

great reputations.52 It has other select committees in the areas of economics and

constitutional affairs.53

It initiates bills of a non-political nature so that the Commons is saved valuable time, as

such bills pass through the Commons more easily if the Lords have done most of the

work on them.54

46 D Shell The House of Lords tables 5.1a & b cited in Michael Rush The House of Lords: the political context in Brice Dickson and Paul Carmichael, editors House of Lords: Its parliamentary and judicial roles, Hart Publishing, 1999, at page 17.47 Michael Rush The House of Lords: the political context in Brice Dickson and Paul Carmichael, editors House of Lords: Its parliamentary and judicial roles, Hart Publishing, 1999 at page 18.48 Michael Rush The House of Lords: the political context in Brice Dickson and Paul Carmichael, editors House of Lords: Its parliamentary and judicial roles, Hart Publishing, 1999 at page 19.49 Michael Rush The House of Lords: the political context in Brice Dickson and Paul Carmichael, editors House of Lords: It’s parliamentary and judicial roles, Hart Publishing, 1999 at page 15.50 Michael Rush The House of Lords: the political context in Brice Dickson and Paul Carmichael, editors House of Lords: It’s parliamentary and judicial roles, Hart Publishing, 1999 at page 23.51 Nicholas Baldwin Membership & work of the House of Lords in Brice Dickson and Paul Carmichael, editors House of Lords: It’s parliamentary and judicial roles, Hart Publishing, 1999, at page 40.52 Rodney Brazier, The Second Chamber: Paradoxes & Plans in Brice Dickson and Paul Carmichael, editors House of Lords: Its parliamentary and judicial roles, Hart Publishing, 1999, at page 5653 Briefing: the work of the House of Lords: its role, functions and power www.parliament.uk 54 Nicholas Baldwin Membership & work of the House of Lords in Brice Dickson and Paul Carmichael, editors House of Lords: It’s parliamentary and judicial roles, Hart Publishing, 1999, at page 38.

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The Lords also scrutinizes delegated legislation, both domestic and of the European

Community. Domestic statutory instruments are dealt with by a joint committee of both

houses.55

It is said that debates in the Lords are freer because there is less party discipline, no

electorates and more cross-benchers.56 The introduction of life peerages has brought in

many highly regarded experts making great contributions.57

It scrutinizes the executive through the questions it asks; up to four oral questions (or

starred questions) per day and approximately 4000 written questions per year.58

Statements of the government are repeated in the Lords and questions can be raised.59 It

also conducts debates of three types, short, mini and general.

The Lords act as a constitutional check by allegedly being a barrier against elected

dictatorship. Any legislation to extend the term of the Commons must meet with their

approval. Further, they are said to protect the independence of the judiciary as the most

senior judges cannot be removed without an address to the monarch from both houses.60

Powers

The Commons have claimed a privilege since the seventeenth century that only it can

raise taxes or authorize expenditure and that such bills should always start in the lower

55 Michael Rush The House of Lords: the political context in Brice Dickson and Paul Carmichael, editors House of Lords: Its parliamentary and judicial roles, Hart Publishing, 1999 at page 20.56 Nicholas Baldwin Membership & work of the House of Lords in Brice Dickson and Paul Carmichael, editors House of Lords: It’s parliamentary and judicial roles, Hart Publishing, 1999, at page 38.57 Nicholas Baldwin Membership & work of the House of Lords in Brice Dickson and Paul Carmichael, editors House of Lords: It’s parliamentary and judicial roles, Hart Publishing, 1999, at page 46.58 Briefing: the work of the House of Lords: its role, functions and power www.parliament.uk59 Nicholas Baldwin Membership & work of the House of Lords in Brice Dickson and Paul Carmichael, editors House of Lords: It’s parliamentary and judicial roles, Hart Publishing, 1999, at page 40.60 Nicholas Baldwin Membership & work of the House of Lords in Brice Dickson and Paul Carmichael, editors House of Lords: It’s parliamentary and judicial roles, Hart Publishing, 1999, at page 40, Also, Section 133 Constitutional Reform Act 2005.

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house and that they cannot be amended by the Lords. The privilege applies to bills

whose main or sole purpose is financial.61

It was the breach of this convention in 1909-1911 crisis that led to the enactment of the

Parliament Act 1911 prohibiting the Lords from delaying legislation for more than two

years, and in the case of a money bill one month.62 The Parliament Act 1949 reduced to

one year the amount of time the Lords could delay the passage of non-money

legislation.63

Given that it can take three to six months to pass a bill through the Commons, the

effective delaying power of the Lords is less than twelve months. Nevertheless,

legislative delays can be very frustrating for governments and can make political or

election issues that make the delaying power useful for the Lords.64 In actual fact, the

lower House has only pushed through legislation this way on four occasions since the

Parliament Act 1911, one of them being the Parliament Act 1949.65

Some matters were exempted from the operation of these two acts: bills prolonging

parliament beyond a five year term, private bills, bills sent to the Lords less than one

month before the end of a session, bills commencing in the House of Lords and delegated

legislation.

During the post-World War II Labour government the Salisbury convention manifested.

It was named after the Marquess of Salisbury, the leader of the Conservative opposition

in the Lords and it ensured that major government legislation, such as that in a pre-

61 Resolutions of the Commons were made in 1671 & 1678. Ken Bradshaw & David Pring Parliament & Congress University of Texas Press, Austin, 1972 at page 186.62 A money bill includes the annual consolidated fund bills voting money to the government and some taxation bills, and the speaker of the Commons is the sole judge of whether a bill is a money bill, and his decision cannot be questioned in a court. Ken Bradshaw & David Pring Parliament & Congress University of Texas Press, Austin, 1972 at page 179.63 Michael Rush The House of Lords: the political context in Brice Dickson and Paul Carmichael, editors House of Lords: It’s parliamentary and judicial roles, Hart Publishing, 1999, at pages 8-10.64 Ken Bradshaw & David Pring Parliament & Congress University of Texas Press, Austin, 1972 at page 183.65 Michael Rush The House of Lords: the political context in Brice Dickson and Paul Carmichael, editors House of Lords: It’s parliamentary and judicial roles, Hart Publishing, 1999, at page 15.

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election manifesto, could be passed in the Lords even when the government does not

command a majority.66

Former judicial powers

Till 1 October 2009, the date of commencement of the Constitutional Reform Act 2005,

the House of Lords was the final court of appeal in the UK, barring some functions of the

Judicial Committee of the Privy Council. The work was done by twelve Lords of Appeal

in Ordinary, appointed under the Appellate Jurisdiction Act 1876.

Impeachments used to be brought in the House of Commons, and then tried in the House

of Lords, but this function is now obsolete, the last impeachment being tried in 1806.

Under the Constitutional Reform Act 2005, a new Supreme Court of the UK was created,

and the judicial functions of the Lords have been removed to that new body. Moreover,

the Lord Chancellor, who was the ex officio presiding officer of the Lords, has lost that

function, as well as that of being able to sit in the courts. A separate position of President

of the Courts of England and Wales and Lord Chief Justice is established.67 Whilst the

Law Lords sit in the new Surpeme Court, newly appointed members of the Supreme

Court will not be entitled to take peerage.

Procedure & working methods68

A quorum of three is required, but if there are less than 30 members present, votes are

adjourned.

All speeches must be relevant to the issue in discussion. Rules forbid allusions to debates

in the Commons; offensive remarks (although debate is rarely boisterous); or speaking

twice on an issue. Speeches are addressed to “my Lords”, not to the Lord Speaker66 Briefing: the work of the House of Lords: its role, functions and power www.parliament.uk 67 Section 7 Constitutional Reform Act 200568 Ken Bradshaw & David Pring Parliament & Congress University of Texas Press, Austin, 1972 at pages 193-196.

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It is a self-regulating House, meaning that any member may draw attention to the breach

of a rule; and particularly if a debate is heated, moving a motion that Standing Order Rule

33, regarding asperity of speech, be read by the Speaker. This has happened on only four

occasions since the innovation in 1871.69 Any member can also move a motion that a

Lord no longer be heard. This has happened on eleven occasions since 1884, and six

such motions were passed.70 . It is left to the whole House to discipline members, a

power that is inherent to both Houses of Parliament.

Debates go for as long as those who wish to speak do so. It is very rare for a motion to

be moved that “the question now be put”, although the Speaker cannot refuse such a

motion. Apart from this, there are no time constraints. As the Lords do not have a

history of chronic obstruction, and they generally exercise their power with restraint this

is not such an important consideration.

Votes take place by a voice vote, “content” or “not content” indicates assent or non-

assent to the proposal, and if necessary, members walk through the division lobbies.

The Lords retains an inherent parliamentary privilege that anything said in the House

may not be questioned in a court of law,71 as well as the privileges to deal with internal

matters, composition, qualifications and disqualifications, regulate and discipline the

membership and punish breaches of any of the privileges, or contempt of the House.72

The United States Senate

69 Standing Orders of the House of Lords and Lords Journals volumes CIII p629, v CIV p 381, v 182 p90, & v 231 p644 & 648-649.70 Companion to the Standing Orders and guide to proceedings of the House of Lords, at www.parliament.uk, Lords Journals volumes CXVI p162, v CXXIII p354, v192 p231, v215 p200-201, v218 p119, v221 p539, v225 p194, v226 p339, v228 p308, v229 p89 & v233 p791.71 Article 9 Bill of Rights72 See Colin R Munro Studies in Constitutional Law 2nd ed. Butterworths 1999 at pages 215-235, First Report of the Privileges Committee in session 2008-2009 “The Powers of the House of Lords in respect of its Members.”

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The Senate is one of two houses of Congress of the United States that are invested with

the federal legislative power of that country.73

Membership & composition

The Senate is composed of two senators from each State of the Union, making a total of

100 senators. Originally the Constitution provided for Senators to be chosen by the

legislatures of each State74, but the seventeenth amendment provided that Senators were

to be directly elected by the electors of the States. This amendment was made necessary

by corrupt practices that went on in the various States, although it is not clear that the

amendment made things any better.75 It has however, increased the hand of each Senator.

The composition of the Senate resulted from the argument at the Philadelphia Convention

between the larger and smaller States as to the representation each was to be entitled to in

the new Union. The larger States claimed more representation because of their greater

populace, and the smaller States feared domination by them. The result was the great

compromise to have the representation in the two houses of Congress on different bases,

the Representatives based on population, and the Senate based on equal representation of

the States.76

Senators’ terms in office are for six years. They were, from the inception of the Union,

divided into three classes: Senators in the first class vacate their seats after two years,

Senators in the second class vacate their seats after four years and Senators in the third

class vacate their seats after six years, creating a permanent Senate with one-third of the

members chosen every two years.77

73 Article 1 Section 1 of the US Constitution.74 Article 1 Section 3 of the US Constitution.75 J Wilson, American Government 265 (1980) referred to in Vik D Amar, The Senate & the Constitution Yale Law Journal 97 no 6 May 1988 p1129.76 Ken Bradshaw & David Pring Parliament & Congress University of Texas Press, Austin, 1972 at page 176.77 Article 1 Section 3 US Constitution.

15

The Senate is smaller than the House of Representatives, allowing it to be less

cumbersome and more deliberative. The longer tenure of Senators allows them to be

vindicated for the performance of their duties before election time and for them to

become wise to government and society. The staggered terms allow more senior

Senators to guide junior ones; and bring continuity and thus better protection of society’s

values by the Senate as a whole.78

Although it is a continuous body, all legislation and treaties expire with the end of

Congress, and nominations with the end of a session.79

Membership is more coveted than in the Representatives because of the longer terms,

continuity and powers in relations to treaties and nominations. If political advancement

is sought members usually move from the Representatives to the Senate, and rarely the

other way around.80

Qualifications

A person must be thirty years old to be eligible for the Senate, have been a citizen of the

United States for at least nine years and be an inhabitant of the State for which he is

chosen.81 These qualifications are stricter than those for the House of Representatives,

being justified by the “senatorial trust” and the need for a “greater extent of information

and stability of character”.82

Elections

78 Vik D Amar, The Senate & the Constitution Yale Law Journal 97 no 6 May 1988 p1118-1119.79 Senate Rules 37, 38.80 Ken Bradshaw & David Pring Parliament & Congress University of Texas Press, Austin, 1972 at page 178.81 Article 1 Section 3 US Constitution..82 James Madison, The Federalist Papers number 62.

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The holding of elections for Senators is to be prescribed in each State by the various

legislatures, but Congress may at any time alter such regulations.83

Powers & functions

All bills must be passed by both houses of Congress. Although the executive has a right

of veto over legislation and other votes of Congress, Congress can override the veto if

two-thirds of both houses again approve the proposal.84

The Senate cannot initiate bills for raising revenue.85 And by convention, all general

appropriation bills must originate in the Representatives.86 Otherwise the Senate has

equal legislative powers to that of the House of Representatives.87 Legislative powers are

specifically provided for including the power to declare war.88 Broad interpretation over

the years, particularly of the commerce clause and the necessary and proper clause, has

enabled Congress to pass laws on a broad range of topics with relatively few amendments

to the Constitution.89

The President has power, with the advice and consent of the Senate, to make treaties with

foreign States provided two-thirds of Senators concur.90 Congress has passed law

authorizing the President to make “congressional-executive” agreements where a simple

majority of both Houses suffices as approval, or “executive agreements” whereby no

83 Article 1 Section 4 of the US Constitution.84 Article 1 Section 7 of the US Constitution.85 Article 1 Section 7 US Constitution..86 Ken Bradshaw & David Pring Parliament & Congress University of Texas Press, Austin, 1972 at page 189.87 The founding fathers drew consciously on the example provided by the British parliament where the Lords and Commons enjoyed similar powers in the seventeenth and eighteenth centuries. Ken Bradshaw & David Pring Parliament & Congress University of Texas Press, Austin, 1972 at page 188.88 Article 1 Section 8 US Constitution.89 J W Pettason We the people - The Constitution of the USA with explanatory notes US Information Agency 1987.90 Article 2 Section 2 US Constitution.

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legislative approval is required at all. These laws have been held valid by the courts even

though not provided for in the Constitution.91

The Senate has power to confirm the nominations made by the President for high

executive and judicial offices including Cabinet Secretaries, Ambassadors and Federal

Judges, by a simple majority.92

Although the House of Representatives has the sole power to bring an impeachment, the

Senate has the sole power to try it.93 Officers of the United States shall be removed from

office for conviction by the Senate of treason, bribery or other high crimes or

misdemeanors by a vote of two-thirds of the Senators present. Judgment shall not be

more than removal from office and disqualification to hold any office under the United

States.94

It is unclear whether the test for impeachment is broader than criminal offences. For

example, President Andrew Johnson was acquitted of impeachment in 1868 that was

brought on political grounds, and much more recently President Bill Clinton too was

impeached unsuccessfully in very political circumstances. It has been used on a total of

thirteen times only, for only four convictions, all of them judges.95

Congress may propose amendments to the Constitution when two-thirds of both Houses

deem it necessary. Although there is another method to amend the Constitution, it has

never resulted in an actual amendment being approved. Proposals must be ratified by

three-quarters of the legislatures of the States,96 however the Congress and particularly

the Senate can be very influential, as contemporaneous comments made at the time in

91 Laurence Tribe Taking text and structure seriously: reflections on free-form method in constitutional interpretation Harvard Law Review 108 no 6 p1221-130392 Article 2 Section 2 US Constitution.93 Article 1 Sections 2 & 3 US Constitution.94 Article 1 Section 3 & Article 2 Section 4 US Constitution.95 Ken Bradshaw & David Pring Parliament & Congress University of Texas Press, Austin, 1972 at page 192.96 Article 5 US Constitution.

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Congress can be the basis of subsequent interpretation given to amendments by the

judiciary.97

Congress has the power to admit new States into the Union98and has the right to receive

from the President information on the State of the Union.99 The President gives a State of

the Union message once a year, and since the time of Franklin D Roosevelt, this has

always been done in person.100

Other powers of the Senate are to elect the Vice-President if there is a deadlock101 and to

vote on whether or not the President is unfit for office if the President disagrees with the

Vice-President and the cabinet on this issue.102

The Vice-President shall be the President of the Senate, but only gets a casting vote.103

The Senate elects a President Pro Tempore for when the Vice-President is absent, which

is most of the time.104

In keeping with the principle of separation of powers, no Senator shall be appointed to

any civil office under authority of the United Sates, and no such person shall be a

member of the Senate during his continuance in office.105

All Senators shall be bound by an oath or affirmation to support the constitution,106 and

they shall receive compensation for their services.107

97 Vik D Amar, The Senate & the Constitution Yale Law Journal 97 no 6 May 1988 p1121.98 Article 4 Section 3 US Constitution.99 Article 2 Section 3 US Constitution.100 J W Pettason We the people - The Constitution of the USA with explanatory notes US Information Agency 1987 at page 35.101 12th amendment US Constitution.102 25th amendment US Constitution.103 Article 1 Section 3 US Constitution.104 Senate Standing Rules105 Article 1 Section 6 US Constitution.106 Article 6 US Constitution.107 Article 1 Section 6 US Constitution..

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Procedure & working methods108

The Senate, like the House of Representatives, is the judge of its own elections and the

qualifications of its members. A majority of Members shall constitute a quorum to do

business; that is fifty-one Members present. It may determine its rules of proceeding; it

may punish members if disorderly and expel a member. It must keep a journal of

proceedings and from time-to-time publish it.109 Any question of order is to be decided

by the Presiding Officer, or if he refers it, by the Senate itself.110 Voting is in one of three

ways, vocal, a division or a roll-call where each Senator’s vote is recorded.

For any speech or debate a Senator shall not be questioned in any place, particularly a

court of law.111 This gives Senators (and all Congressmen) parliamentary privilege as

developed in England.

There is no limit on the length of speeches in the Senate, and Senators have long abused

this power by attempting to delay or block legislation. This is called a filibuster. In 1917

the Senate adopted a rule that allowed the Senate to end a debate with the concurrence of

a two-thirds majority vote and this was reduced to three-fifths in 1975. This technique is

known as a cloture.112 On the contrary, the Senate prefers self-discipline. A timetable

can be imposed by unanimous consent and are standard practice; they often include a

requirement that motions and amendments are relevant to the bill. Often a Senator will

concur to a timetable to throw boundaries against his dedicated opposition to a measure.

On any one day of sitting, a Senator can speak twice without leave, must not use

disorderly language and must not refer to the actions of the Representatives. He can only

be interrupted when speaking when transgressing the rules. Debate can range without

limit, and amendments to bills don’t necessarily have to be germane to the draft.

108 Ken Bradshaw & David Pring Parliament & Congress University of Texas Press, Austin, 1972 at page 197-202.109 Article 1 Section 5 US Constitution110 Senate Standing Rules.111 Article 1 Section 6 US Constitution.112 “Powers & Procedure” www.senate.gov

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The Senate is a small body. Each Senator is very busy and represents a whole State. And

s Senator will sit on more committees than House of Representative members.

Consequently only a small number of Senators will handle the work on any given bill.

The Dewan Negara (Senate) of Malaysia

Article 44 of the Federal Constitution invests the legislative authority of the Federation

in the Parliament, which consists of the Yang di-Pertuan Agong and two Majlis (Houses

of Parliament), the Dewan Rakyat (House of Representatives) and the Dewan Negara

(Senate).

Membership & composition

Article 45(1) provides that the Senate shall be composed of two members elected from

each State, and two members for the Federal Territory of Kuala Lumpur, one for the

Federal Territory of Labuan, one for the Federal Territory of Putra Jaya and forty other

members, all to be appointed by the Yang di-Pertuan Agong. In total there are 26 elected

Members and 44 appointed Members.

Schedule 7 provides the electoral process whereby the Legislative Assemblies of each

State nominate and vote for candidates to fill the elected vacancies in the Dewan Negara.

Any election disputes are to be resolved finally by the Dewan Negara.113

Article 45(2) provides that the members appointed by the Yang di-Pertuan Agong shall

be persons who, in his opinion. have rendered distinguished public service, or achieved

distinction, or are representatives of racial minorities, or are capable of representing the

interests of aborigines.

113 Clause 5 Schedule 7 Federal Constitution

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Article 45(3) provides that the term of office of a Senator shall be three years and not

affected by the dissolution of Parliament. Article 45(3A) provides that a Senator shall

not hold office for more than two terms.

Article 47 provides that every citizen resident in the Federation is qualified to be a

member of the Senate if not less than thirty years old. Article 48 provides that a person is

disqualified from membership of either House of Parliament if of unsound mind, an

undischarged bankrupt, holds an office for profit, having been nominated has failed to

lodge a return of election expenses, has been convicted of an offence and sentenced to

imprisonment for not less than twelve months or fined not less than 2000 ringgit or has

acquired citizenship outside the Federation. Article 53(1) empowers the Senate to finally

determine whether or not one of its Members has become disqualified

Article 49 provides that a person shall not be a member of both Houses of Parliament at

the same time.

Article 59(1) provides that every member of either House of Parliament shall take an oath

before taking their seat in Parliament. Schedule 6 prescribes the Oath of Members of

Parliament and Allegiance that includes that Members “will preserve, protect and defend

its Constitution”.

Article 59(2) provides that if a member has not taken their seat within six months of

election that seat shall become vacant. Article 52 provides that if a member of either

House is absent from every sitting day for more than six months, their seat can be

declared vacant. Article 51 provides that a member of either House of Parliament may

resign their membership.

Article 64 provides that members of Parliament are entitled to remuneration.

Procedure & working methods

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Article 56(1) provides that the Senate shall choose one of its members to be the Yang di-

Pertuan Dewan Negara (President of the Senate) and one to be the Deputy President.

Article 58 provides for the remuneration of the President and Deputy President. The

President has immense powers and privileges, including powers to regulate conduct such

as refusing to allow a motion or ejecting a member.114

Article 55(1) provides that the Yang di-Pertuan Agong shall summon Parliament from

time-to-time. Article 60 provides that the Yang di-Pertuan Agong may address either

House of Parliament, or both jointly.

Article 61 provides that every member of Cabinet shall have the right to take part in

proceedings of the other House, either House may appoint any member of cabinet to one

of its committees, but that no one is authorized to vote in a House if not a member of that

House.

Article 62 provides that each House of Parliament shall regulate its own proceedings, and

that each House shall take its decisions by a simple majority. The procedure of the

Majlis are in practice based on British standing orders.115

Article 63 provides that the validity of any proceedings in either House shall not be

questioned in any court, and that no person shall be liable in any court in respect of

anything said, voted on or published by either House. The Article also provides that

there are some exceptions based on defamation, contempt of court, breach of the Sedition

Act 1948, incitement to commit an offence; any questioning of the national language,

preference for Malays and natives in the public service, sovereignty and privileges of the

State Rulers; and comments advocating the abolition of the constitutional position of the

Yang di-Pertuan Agong. Further limitations are imposed by various laws such as the

Official Secrets Act 1971 and the Police Act 1967. Yet a further restriction is made by

Standing Order 23(4) which allows the Speaker to refuse questions likely to promote ill-

114 Adbul Aziz Bari The Malaysian Constitution – a critical introduction The Other Press 2003 at page 90.115 Andrew Harding Law, government and the Constitution in Malaysia Kluwer Law International 1996 at page 82.

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will between different communities in the Federation or breach the Sedition Act or the

Constitution.116

Although the privilege derives from English law, especially seventeenth century history

where the British parliament defended itself against usurpation of power by the King,117

serious doubt has been raised regarding Members’ abilities to represent their

constituencies properly with these many restrictions that are as onerous as those on

ordinary citizens.118

Under Article 127 Parliament is prohibited from discussing the conduct of a Judge unless

under a substantive motion.

Power & Functions

Its purposes are to ensure representation of the States in the Federation, act as a “second

thoughts” chamber to government proposals and allow experienced and talented persons

to serve in Parliament without being elected.119

Article 66(1) provides that the power of Parliament to make laws is to be exercised by

bills passed by both Houses of Parliament, or by the Dewan Rakyat only as per Article

116 Andrew Harding Law, government and the Constitution in Malaysia Kluwer Law International 1996 at page 89.117 Andrew Harding Law, government and the Constitution in Malaysia Kluwer Law International 1996 at page 88.118 Adbul Aziz Bari The Malaysian Constitution – a critical introduction The Other Press 2003 at page 92.119 Andrew Harding Law, government and the Constitution in Malaysia Kluwer Law International 1996 at page 96.

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68, and assented to by the Yang di-Pertuan Agong. Article 66(2) provides that a bill may

originate in either House subject to Article 67.

Article 67(1) provides that a bill making provision for any tax, borrowing of money,

financial obligations of the Federation, debt due to the Federation, assignment of fee or

grant to a State or the Consolidated Fund shall not be introduced in the Senate.

Article 68(1) provides that where a money bill (defined in Article 68(6)) is passed by the

Dewan Rakyat is not passed by the Dewan Negara within one month, it shall be presented

to the Yang di-Pertuan Agong for his assent. Article 68(2) provides that where a non-

money bill is passed by the Dewan Rakyat and not passed by the Dewan Negara, and in

the following session at least one year later it is again passed by the Dewan Rakyat, it

shall be presented to the Yang di-Pertuan Agong for his assent. Article 68(5) provides

that this Article does not apply to any bill making amendment to the Federal Constitution.

This Article is based on the British provisions in the Parliament Acts of 1911 & 1949 in

the UK which were inspired by the constitutional conflict between the Lords and the

Commons. The powers in Article 68 are rarely or never used, as their existence is

sufficient. The Dewan Negara is not predominantly elected and not representative of the

Federation, therefore the provision is not oppressive.120

In reality, nearly all legislation originates in the Dewan Rakyat, and the Dewan Negara

has made little impact.121 It has failed to become an influential forum for debate and

discussion, as hoped by the Reid Commission Report upon which its creation was

based,122 and rarely amends legislation. It is a place where government dispenses

120 Andrew Harding Law, government and the Constitution in Malaysia Kluwer Law International 1996 at page 88.121 The government up to 1996 had never suffered a defeat in Parliament, and three opposition leaders have claimed that the government never changes legislation based on parliamentary debate. Andrew Harding Law, government and the Constitution in Malaysia Kluwer Law International 1996 at page 83.122 Andrew Harding Law, government and the Constitution in Malaysia Kluwer Law International 1996 at page 32

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patronage and reward123 and has also been described as a rest home for tired

politicians.124 In summary, it “has not proved to be a forum for the protection of States’

rights, and like many other upper houses, has ceased to fulfill any important purpose.”125

Further, it is open to the possibility of abuse if the government ever loses power.

Contrary to the intention of the drafters, the government has appointed more and more

Members who are friendly with it, and likely to be hostile to a new government, stifling

the democratically expressed intention of the electorate.126

Article 159(3) provides that a bill to amend the Federal Constitution, or to amend a law

made pursuant to Article 10(4) shall not be passed by either House of Parliament unless

supported by two-thirds of the Members.

Comparisons

The origins of the three chambers are very different. The House of Lords evolved after

William the Conqueror brought the feudal system to Britain in 1066. The feudal vassals

owed the monarch a duty to attend and give advice on affairs of governance. Originally

known as the Kings Court, Lords Spiritual and Temporal attended to give advice. After

many hundreds of years the Lords gradually evolved.127

123 Andrew Harding Law, government and the Constitution in Malaysia Kluwer Law International 1996 at page 96.124 Andrew Harding Law, government and the Constitution in Malaysia Kluwer Law International 1996 at page 81.125Andrew Harding Law, government and the Constitution in Malaysia Kluwer Law International 1996 at page 271.126 Andrew Harding Law, government and the Constitution in Malaysia Kluwer Law International 1996 at pages 96–97.127 Ken Bradshaw & David Pring Parliament & Congress University of Texas Press, Austin, 1972 at page 169-170.

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By comparison the United States Senate was created by the founding fathers at the

Philadelphia Convention. They wanted a bicameral legislature to keep a check on each

other and the executive, and also to provide for representation for the States in the Senate.

In fact the Senate was similar to the Lords at the time it was created, as at that time the

Lords was much more powerful than today. In fact some wanted the Senate to be as

much like the Lords as possible.128

The Dewan Negara was created when Malaysia gained independence and the inspiration

was the recommendation in the Reid Report 1957 as to the future independence of

Malaysia. It was given some similar features of the Lords, such as restrictions on

blocking legislation and having predominantly appointed membership.

It was intended originally that with time more and more members would be elected to the

Dewan Negara and less would be appointed, thus resembling the US Senate more and

more.129 But this has not happened and in fact the opposite is true as the proportion and

number of appointed members has increased (from 16 to 44). This makes it similar to the

Lords which of course has all of its Members appointed by the government. What is

better now about the British system is that most Lords appointed are life peers, and they

are appointed in numbers proportional to the popularity of each of the political parties

which they represent. By contrast, the Malaysian government appoints most Senators

who are supporters of its coalition political parties.

Like the Dewan Negara, the US Senate is much smaller than the Lords, containing one

hundred members, but unlike the Dewan Negara, all of them are elected in very

competitive elections.

The Lords has over 700 members, and many of them don’t take part as attendance is

voluntary. By comparison, the Dewan Negara, with its much smaller membership and

more onerous attendance requirements means that a failure to attend for six months or

128 John Dickson, representative of Delaware at the Philadelphia Convention. 129 This is provided for in Article 45 of the Federal Constitution.

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more without leave results in a loss of one’s seat. In the US Senate, with its relatively

small numbers and large legislative agenda, all Senators remain very busy. Indeed, the

Senate is authorized to compel the attendance of an absent Member.130

Eligibility for Membership of the US Senate is similar to that of the Malaysian Dewan

Negara, whereas the Lords places a less onerous age requirement; Members can be just

twenty-one years of age. Disqualification for a range of matters such as bankruptcy,

certain criminal offences and being of unsound mind is imposed on Members of the

Lords131 and Dewan Negara, but not for the Senate. Senate does however have a power

to expel a Member if two-thirds of the House concur,132 and the matters it can consider in

exercising such a power are undefined.

The lengths of term vary widely from three years (with a maximum of two terms) for the

Dewan Negara, six years for the Senate and life for the Lords. Senators in Malaysia and

the United States must make an oath or affirmation in support of their respective

constitutions whilst Lords must make an oath or affirmation bearing allegiance to the

monarch according to Law.133 The differing requirements reflect the supremacy of the

constitution in Malaysia and the United States, and the supremacy of Parliament in the

UK. A quorum to do business varies from 51 in the Senate, to ten in the Dewan

Negara134 and three in the Lords, reflecting perhaps the Senate’s large powers and

workload.

The Lords receive no pay, only an allowance for expenses, contrasting it to Senators in

Malaysia and the United States who receive an income. This and its larger membership

explains the more relaxed attitude to attendance in the UK second chamber.

130 Article 1 Section 5 US Constitution.131 See Companion to Standing Orders and guide to proceedings of House of Lords www.parliament.uk132 Article 1 Section 5 US Constitution.133 Companion to Standing Orders and guide to proceedings of House of Lords www.parliament.uk pages 18-19.134 Andrew Harding Law, government and the Constitution in Malaysia Kluwer Law International 1996 at page 84.

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Whilst the Lords is unrestricted in the subject matter about which it can consider and

make law, the US Senate and the Dewan Negara enjoy broad legislative powers

contained in their respective constitutions and as interpreted by their courts.

Because of the limited nature of debate in the US House of Representatives, bills are

processed by a small group of legislators. So it is essential that the Senate take a closer

look at legislation when exercising their revising function. So too in the United

Kingdom, the lower House is exceptionally busy and relies on the Lords to carefully

review and consider legislation sent up to it. Unfortunately the Dewan Negara serves no

such useful purpose and the government of Malaysia never amends legislation as a result

of parliamentary debate.

The US Senate, apart from financial bills, initiates legislation as freely as the

Representatives. It also rejects and amends bills without inhibition. The Lords does

initiate legislation, but less controversial and more technical bills. This lets them

scrutinize and adapt these bills thoroughly to save the Commons much time when it

comes to their turn to consider the same bill. The Lords do amend bills regularly, and as

previously noted, most of their amendments are accepted by the Commons, but subject

always to the limitation of rejecting bills as per the Parliament Acts of 1911 & 1949.

Overall both second houses can spend more time considering bills given they have less

time constraints than their respective lower houses. The Dewan Negara does not have the

powers of amendment that the Lords and the Senate enjoy because it lacks any political

clout. It too like the Lords cannot reject legislation, but it enjoys far less influence than

even the Lords.

All three houses are prohibited by law or convention from initiating bills of a financial

nature, but only the Senate can as freely as it wants reject or amend such legislation.

Indeed, given that Senators represent whole States they need to play a full part in

scrutinizing such legislation. The other two houses are blocked by law from rejecting

such legislation and consequently, neither spends much time considering such legislation.

29

All three chambers retain the power to regulate their own proceedings, decide on

qualifications and disqualifications of Members and in the case of the two Senates, decide

election disputes. The US Senate and the Lords have a philosophy of self-restraint and

independence rather than strict rules. Fellow Members ensure orders are followed, not

the chair. By contrast the Yang di-Pertuan Dewan Negara has great power to discipline

and control the Dewan Negara.

Other comparisons are as follows:

Whilst all three second chambers enjoy parliamentary privilege, in the case of the

Dewan Negara it has come with so many exceptions that its effectiveness is

severely weakened. It acts as an impediment in allowing the House to adequately

perform its functions, and partially explains why it is much less effective than the

other two houses.

The US Senate uniquely has executive powers in controlling the appointment of

high judicial and executive officers and ratifying treaties made by the President.

The US Senate and the Lords have important roles in procedures to remove senior

judicial officers (and executive officers in the case of the Senate) from their posts,

whereas the Dewan Negara has no such involvement.

Almost paradoxically the Dewan Negara retains equal power to the Dewan

Rakyat where constitutional changes are proposed. The US Senate enjoys a

similarly central role in making constitutional amendment whereas the Lords

main role in constitutional amendment is that it must approve an increase in the

length of parliament beyond five years.

Since its inception over 200 years ago, the US Senate has developed and grown in

stature: it introduced standing committees in 1813, it expanded its membership as new

States joined the Union and it achieved direct election in 1913. By comparison the Lords

has survived but lost much of it power because of a number of factors: restrictions on

rejecting legislation, governments becoming aligned with the Commons and popular

30

representation, loss of role of providing advice to the monarch, and reductions in both

inherited peerages and the power and role of the Lord Chancellor.

Similarly to the Lords, since its inception, the Dewan Negara has lost much of its

intended role. It was intended to grow much larger with increased numbers of elected

representatives and move to a directly elected system, but has instead increased numbers

of appointed Members and decreased its relevance and influence.

The US Senate is the voice of the Union. It brings together the fifty States on an equal

basis. Neither the Lords nor the Dewan Negara, because of their lack of power and lack

of direct election, have such unifying influence.

Clearly because of the almost equal legislative powers of the Senate to the House of

Representatives, broad range of potential legislative subject matter, key role in making

changes to the constitution, healthy parliamentary privilege, long length of terms of

office, unique executive powers regarding treaty making and appointments to (and

removals from) high judicial and executive office, and prestige attached to representation

in it, the Senate can well be regarded as the most powerful second chamber in the world.

31