Venice Commission - Report on Bicameralism

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Slovenia

1.Has the country always had a bicameral parliamentary (or congressional) system? If not, from when did the country adopt a bicameral system? Is there a public debate about keeping bicameralism or moving to a unicameral system? Why? What are the terms of the debate? What is the public perception of the usefulness and acceptability (legitimacy) of the second chamber?

The idea of a bicameral Slovenian parliament emerged in the late 1980s when the draft for the Slovenian Constitution was created. The first draft anticipated a unicameral parliament that would include Members of Parliament representing regional interests in a special legislative procedure. Later on, two ideas of a bicameral parliament arose. The first anticipated a foundation of the Assembly of Regions which would be equal to the National Assembly. The second anticipated the foundation of a “weaker” National Council.

Later on, when Slovenian Constitution was in phase of adoption, different suggestions about the Slovenian representative body arose. One of them involved an idea of a unicameral representative body which would represent local and regional interests. These representatives would have been voted in a different way than other members of the representative body. This would serve as a mean of correction of the electoral system only for the part of the parliament that would represent local and regional interests. The second suggestion included an idea of a second chamber which would represent employers and employees, regions and professionals, and which would induce varying approaches to the parliamentary decision making. This idea was based on the Bavarian Senate. The third idea was an Assembly of Regions as a “half-chamber” based on the Norwegian model, which would discuss certain issues separately. There also existed other different ideas, which envisaged that Slovenia would adopt a bicameral system based on the experience of some of the upper chambers internationally e.g. France, Spain and Italy.

The National Council, the upper house of the Slovenian parliament, was established in 1991 as a compromise based on the structure of the Bavarian Senate. As Slovenia gained its independence there was great pressure to adopt its constitution rapidly, because it wanted to become a member of Council of Europe and United Nations as soon as possible. It is because of this short time frame that a lot of constitutional compromises had to be made, one of them being the definition of the structure of the Slovenian parliament.

In Slovenia, there is a permanent discussion in the media about reforming or abolishing the National Council. A lot of ideas about the reform of the National Council deal with the introduction of a chamber of regions. A bigger constitutional reform should take place after establishing the second level of local self-government – regions. It is important for the National Council to strive not only to reform the local self-government, but also to become the contact point for the Slovenian regions, which shall certainly have an impact on its competences and its composition. Nevertheless, the National Council does not represent only Slovenian local interests but also other interests – the reform must affect not only representation of the local interests but also representation of other interests and competences of the National Council.

On the other hand, there were also lots of ideas of abolishing the National Council but only one formal proposal in 2012. In this regard a group of deputies initiated the procedure to amend the Constitution of the Republic of Slovenia in the field of organization of the National Council, but they did not succeed in their attempt.

As already mentioned the National Council was created as a compromise based on the structure of the Bavarian Senate, which was abolished by a referendum, which came into effect in 2000. The National Council has similar competences as Croatian Chamber of Counties (Županijski dom), which was abolished by the Croatian Sabor in 2001. Both of them, Bavarian Senate and Croatian Chamber of Counties, were quite similar to the National Council but abolished.

There were four main reasons enlisted in the proposal to abolish the National Council. The first reason was the improvement of effectiveness of the legislative process and the quality of the legislation adopted. The second reason was the simplification of the political system and state regulation. The third reason was the final resolution of the dilemma whether the parliament in Slovenia is bicameral or not. The last but not the least was the balance of public finances and reduction of public spending. These reasons were weak and easy to reject. The abolishment of the National Council does not improve the effectiveness of the legislative process; moreover, it affects the quality of the adopted legislation. The most ridiculous argument was the reason to balance public finances with the abolishment of the National Council, although the National Council has a low annual budget. Proposal to abolish the National Council did not receive enough support by deputies in the National Assembly and the National Council was not abolished.

Regardless all these arguments the most important aspect that has been overlooked by all the ideas for abolishment is the principle of division of powers and the well-established system of check and balances that has been incorporated in the National Council role in the state organisation structure. Because of its competences the National Council is not just a coercive mechanism in the legislative procedure with its opinions and suspensive veto right but also a supervisor of the executive when exercising its right to request a parliamentary inquiry. The structure of the National Council (interest groups representation) and its engagement with civil society is one of the advantages of the Slovenian parliamentarian system which gives more legitimacy to adopted legislation and deeper scrutiny of the legal system.

2.What is the population of the country? What is its size?

Slovenia covers 20,271 square kilometres and has a population of 2.1 million.

3.What form of state and form of government has the country? Please provide details with reference to relevant constitutional provisions. a) Unitarian or federal/regional/other form of decentralization; b) Parliamentary, presidential, semi-presidential or mixed

Slovenia is according to Constitution of the Republic of Slovenia parliamentary representative democratic republic (Article 1). The Constitution, adopted on December 23, 1991, outlines the form of state and government of Slovenia. The form of government is based on the principle of the separation of powers into three branches (Article 3): the legislative, executive, and judicial. The National Assembly is the highest representative and legislative body of the country, consisting of 90 members who are elected for a four-year term. The executive power is vested in the Government of the Republic of Slovenia, which is headed by the Prime Minister and consists of ministers who are appointed by the National Assembly. The judiciary is independent and is composed of courts, which exercise judicial power in accordance with the Constitution and laws.

Slovenia is a territorially unified and indivisible state (Article 4). Slovenia has a decentralized form of government, with local self-government. The Constitution provides for the decentralization of power and the establishment of self-governing local communities. Article 139 of the Constitution provides for the establishment of self-governing local communities, which are based on the principles of local self-government and the separation of powers between the state and local communities. Local communities have the right to manage local affairs and provide public services in accordance with the law. They are also entitled to financial resources from the state budget, as well as their own revenue sources.

Additionally, the Constitution provides for the establishment of regional self-government. Article 140 of the Constitution allows for the establishment of regions, which are defined by law and based on common economic, cultural, and social characteristics. Regions have not yet been established in Slovenia.

Furthermore, the Constitution provides for the protection of minority rights, including the right of minorities to participate in the decision-making process of local and regional self-government. Minority representatives are entitled to participate in the work of representative bodies at the local and regional levels.

4.How many members are in the lower house?

90 members.

5.How many members has the second chamber?

40 members.

6.How are members of the second chamber selected? Please describe: a) direct/indirect/mixed suffrage (if the suffrage is indirect or mixed, who elects or appoints the second chamber? b) territorial or other criteria; i) region/provinces/municipalities/others; ii) professional categories/ethnic/age/other; c) candidates’ independence from/affiliation with political parties; d) in case of indirect election, is there an imperative mandate or a similar practice?

The National Council is, in accordance with the Constitution, the representative of social, economic, professional and local interest groups. Forty members of the National Council comprise 22 representatives of local interests, six representatives of non-commercial activities, four representatives of employers and four of employees and four representatives of farmers, crafts and trades and independent professions.

Even though elections to the National Council are a constitutional category and should be regulated in the Constitution, elections to the Slovenian National Council are regulated in the National Council Act. Different interest groups exist in the National Council and each is elected in a specific way. As Article 96 of the Constitution dictates, the National Council houses 4 employer representatives, elected based on law by electorate (electorates), composed of elected Chamber of Commerce representatives and employer associations that are organized in the country. Every Chamber of Commerce and employer organization elects one member of the electorate per every 10 000 employees of their members.

The Constitution dictates that an employee interest group has 4 representatives in the National Council, the same as employers. They are elected by the electorate which was formed by representative unions which elected them. Unions are by the legislator considered to be representative based on the structure of their membership. Representative Unions are essentially representatives of employees in different fields of labor.

The National Council houses 4 representatives of farmers, craftsmen and professional occupations. 4 representatives are voted by 3 categories of subjects, from which farmers get 2 representatives. The representatives are elected by professional farmer organizations such as chambers, associations, societies and unions.

Article 96 of the Constitution regulates that there are also 6 members of non-commercial activities in the National Council, but does not specify who these representatives are, leaving the regulation to the National Council Act. The Act stipulates which non-commercial activities are represented with the 6 representatives: representative of universities, higher schools, colleges, upbringing and education representative, science representative, representative of culture and sports, health representative and a social security representative.

The National Council Act predicts a certain number of electors and National Council candidates. In local interest representative’s election, each local community can elect one candidate and an additional proportionate number of electors based on the number of inhabitants of the community. Each local community can elect at least one representative in the electorate no matter the number of inhabitants, and one extra for every 5 000 inhabitants.

However, the problem of determining the number of electors does occur in the election of functional interest representatives. Each interest organization that has the right to propose electors and candidates for the National Council, can propose an unlimited number of candidates, as well as an additional elector and extra electors if the membership in the organization is higher than criteria set in the legislation. Every Chamber of Commerce, employer associations and union can elect an extra elector for every 10 000 members, every professional farmer organization an extra elector for every 1000 members, each professional organization of craftsmen for every 500 members, each professional organization of independent professions, pedagogical staff, scientists, cultural and sport staff, healthcare staff and social security professionals can elect one extra elector for every 100 members. The only exception is the election of university, higher school and college representative; these institutions do not elect extra electors, instead, each has one representative in the electorate regardless of the number of students or professors.

c) candidates’ independence from/affiliation with political parties

Many associations and civil society organizations that are independent of politics are involved in National Councils elections. Based on the number of their members they can propose electors and candidates, and can in this way ensure a representative in the National Council. Because political parties cannot directly influence National Councils elections, they also cannot influence their actions during their mandate which importantly reflects on the activity of the National Council itself. The National Council sessions are compared to National Assembly sessions less politicized and the debates are more substantive, which greatly influences the quality of the parliament’s activity in Slovenia.

See also answer no. 10.

d) in case of indirect election, is there an imperative mandate or a similar practice?

There is a question about the nature of the mandate of the members of the National Council. The Constitution determines that a member of the National Assembly is a representative of the people and is not bound by any instructions, whereas the same cannot be said for a member of the National Council. On that ground, it could not be unreasonable if permanent relations are formed institutionally, which would establish member of the National Council activity guideline, some other element of imperativism of their mandate, and possibly even a recall of the member of the National Council, since it would not negate the idea of local interests’ representation. The constitutional theory opinion is that the mandate of member of the National Council is mostly imperative because their main purpose is to represent their interest groups.

There are no provisions that would bind member of the National Council to work under instructions or to even represent a certain interest in decision-making. However, they have to inform interest organizations and local communities they represent about their progress and file initiatives and proposals on their appeal. These obligations indicate an imperative nature of the National Council's member mandate. Nevertheless, the mandate is not fully imperative; if it were, the councilor would always have to vote in accordance with the instructions of his interest base.

Furthermore, the National Council cannot be dissolved based on interest representation of its voting base. The member of the National Council dissolving reasons are stated in Article 63 of the National Council Act and are the same as for a National Assembly member stated in the Deputies Act. The legislator did not determine the duty of the member of the National Council to follow represented interests as a reason for dismissal when the dissolving institute was regulated. Consequently, the mandate of the member of the National Council is in fact much closer to a representative than imperative.

7.Age. What is the age limit to elect and be elected or appointed to the second chamber? Does it coincide with the lower chamber? Are there other requirements for election than those for members of lower chambers?

The right to vote for elections to the National Council is different comparing to the one for elections to the National Assembly and for the President of the Republic. When only comparing the National Assembly and the National Council, the main reason for this is that the latter is a representative of different social interests whereas the National Assembly represents the people. It is understandable that not everybody that has the right to vote for the National Assembly representatives has the same right to vote for the National Council representatives and that this right is reserved to members of the interest groups that are later represented. The right to vote for members of the National Council is limited to people that are 18 years old and participate in certain activities, are in working relationship (representatives of functional interests) or have a permanent accommodation in a certain constituency (voting of local interests representative).

The right to vote representatives of local and functional interests in the National Council can be direct or indirect. When the representatives of functional interests are voted, only representatives of interest organizations or members within the interest organization (university senate, executive board, board of directors) which has the authority to elect people in the election body, have the indirect right to vote. The elected people in the elective body – the electors – have the direct right to vote.

The right to vote when voting representatives of local interests is even more complex than voting representatives of functional interests. Everyone that has a permanent accommodation in a certain constituency has in a broader sense the indirect right to vote representatives of local interests in the National Council, because they have the right to elect members of the municipal council in a municipality that is a part of a certain constituency. Members of the municipality council have the indirect right to vote in a narrow sense and the electors of each constituent that are elected in the electoral body have the direct right to vote for representatives of the National Council.

While the right to vote to National Assembly is reserved for Slovenian citizens only, non-Slovenian citizens have the right to vote to the National Council in some scale; if they have a job in Slovenia that belongs to one of the interest fields, or if they are in a working relationship.

8.Gender. Are there any requirements to achieve gender parity between men and women in the composition of the second chamber or is there any gender quota system? If so, is there a similar requirement or gender quota system for the lower chamber?

There is a gender quota system for the elections to the National Assembly but there is no gender quota system for the elections to the National Council.

9.Term of office or tenure. Duration? Does it coincide with lower chamber? Does the second chamber follow the continuity rule (members are not replaced all at once, new elections concern only part of the chamber at a time)? Can the second chamber be dissolved and if yes, who and how exercises its competences in the meantime? Please report any particularity.

The National Council is a representative body that cannot be dissolved prematurely. Its members have five-year mandates and it differs to the mandate of the National Assembly which has four year mandate. Elections to the National Council for all members are held in two days – one for the election of members of local interests and the other for the election of members of functional members.

10.Congruence. Is it common for the second chamber to have a similar party composition (majority-minority) to that of the lower chamber?

The composition of the National Council of the Republic of Slovenia is incongruent. In Slovenia, the two houses of the parliament are different, not only in the way they are formed, powers, mandate and professional performance of their members, but also in their composition. The National Assembly represents all citizens of the Republic of Slovenia, local and various functional interests are represented in the National Council. Local and functional interests face each other in the National Council in an institutionalized way. Its composition is supposed to neutralize the excessive influence of political parties, which mainly participate in the legislative process in the National Assembly. Many associations and organizations of civil society, which are independent of politics, participate in the elections to the National Council. Depending on the number of members, they can nominate electors and candidates and in this way ensure their member's representation in the National Council. Since political parties do not have a direct influence on their election, they cannot influence their performance during the mandate of the National Council, which is significantly reflected in the work of the National Council. Compared to the sessions of the National Assembly, the sessions of the National Council are therefore less politically coloured, and the debates are more substantive, which significantly affects the quality of the functioning of the parliament in Slovenia.

However, it turned out in practice that political parties cannot be avoided even in the National Council. It is true that the legislation does not define any formal role for political parties in the election process of the National Council (nomination of candidates, members of electoral committees, etc.), but electors and candidates for members of the National Council are also elected by representative bodies of local communities, i.e. municipal councils. Given that political parties play an important role in municipal council elections and are thus still involved in the work of representative bodies of local communities, political parties also play an informally strong role in the elections of electors and candidates for members of the National Council. Namely, they determine electors and candidates for members of the National Council in all 22 constituencies for elections to the National Council. In practice, therefore, a majority of members of the National Council representing local interests are members of political parties.

11.Status. Are there differences between the legal status of members of the two chambers, and if so, what (e.g., immunity, conflict of interest)?

The National Council Act states that a function of the member of the National Council is honourable. No member of the National Council, except the President, performs his function professionally. Members of the National Council are mostly still employed where they had worked when they were elected as members of the National Council. Therefore, members of the National Council can simultaneously be mayors, board chairmen, presidents of associations, unions, directors of municipal authorities etc.

The Constitution defines that the National Council's member immunity is the same as immunity of a member of the National Assembly. National Assembly's members’ immunity is regulated in Article 83 of the Constitution, but the National Council decides on its own members' immunities. Both immunities are regulated not only in the Constitution, but also in legislation; for National Assembly members in the Deputies Act, whereas for National Council members in the National Council Act. Both legislative provisions of the immunity are reasonably alike, which is in accordance with Article 100 of the Constitution. However the procedure regarding immunity is not regulated in detail, which is why it is regulated in rules of procedures of both chambers.

12.Rules of procedure. How are the rules governing the second chamber established? Are they different from the lower chamber’s and what are the most relevant differences? Are the internal regulations controlled by the constitutional judge?

The rules of procedure of the National Council of the Republic of Slovenia are established by the National Council itself, in accordance with Article 101 of the Constitution of the Republic of Slovenia. The Constitution states that the National Council shall adopt its rules of procedure by a majority of all members.

the rules of procedure of the National Council of the Republic of Slovenia are different from the rules of procedure of the National Assembly of the Republic of Slovenia, because the National Council is a second chamber of the Slovenian parliament, and its rules of procedure are established separately from those of the National Assembly, which is the first chamber of the parliament. One of the main differences between the two sets of rules is that the National Council's rules of procedure provide for a different decision-making process than that of the National Assembly. The National Council has a smaller number of members than the National Assembly, and its members are elected by different interest groups, such as local communities, trades, and professions. As a result, the National Council's rules of procedure reflect the unique composition and role of the chamber in the legislative process.

While the rules of procedure of the National Council and the National Assembly share some similarities, such as provisions for quorum and voting procedures, there are also significant differences between the two sets of rules, reflecting the distinct roles and functions of each chamber in the Slovenian parliament.

The rules of procedure of the National Council are controlled by the Constitutional court of Slovenia if there is a dispute over the application of the rules of procedure of the National Council. There is no directly control or enforce the National Council's rules of procedure.

13.Powers/competences: Are the powers and competences the same in the two chambers (symmetrical bicameralism)? If the bicameralism is asymmetrical, what are the powers of the second chamber? Please describe: i) financial; ii) legislative; iii) oversight/control; iv) other specific powers, in particular as regards constitutional reforms, confidence motions, international treaties, etc; v) interim powers (e. g. in case of dissolution of the first chamber). a) Distinguish issues which are not submitted at all to the second chamber/where the final decision is taken by the first chamber/where the second chamber has a limited veto right etc. Please address these questions the other way round if the second chamber has more powers than the first one; b) Are there specific appointments that must be done solely by the second chamber? If so, the appointment must be done by supermajority/qualified majority/simple majority/absolute majority? c) What kind of parliamentary initiative can the first and second chamber exercise? d) What happens in case of disagreement (in case of asymmetrical as well as of symmetrical bicameralism); how many readings before the final decision? Does a mixed commission meet? e) To which chamber are draft laws and other drafts to be examined by Parliament or the legislature submitted first? f) Is the government responsible to the second chamber (when it is before the first one)? g) Are decisions taken by a joint meeting of both chambers and, in the affirmative, which ones? h) Does the second chamber have a specific role in emergency situations?

Slovenia has asymmetric parliamentarian bicameralism. The National Council has limited competences in the legislative procedure. It may (Article 97 of the Constitution): propose to the National Assembly the passing of laws; convey to the National Assembly its opinion on all matters within the competence of the National Assembly; require the National Assembly to decide again on a given law prior to its promulgation; require inquiries on matters of public importance; request a commencement of the procedure for the review of the constitutionality or legality of regulations or general acts issued for the exercise of public authority.

The National Council may propose to the National Assembly the adoption of laws. The National Council's role as proposer of initiatives is an important one within the legislative process. The National Council may convey to the National Assembly its opinion regarding all matters within its sphere of competence of the National Assembly. This is the far most used competence. National Assembly may also demand opinion from the National Council, but in practise that has never happened.

Within seven days of the adoption of the law the National Council may require that the National Assembly decides again on a law. This competence, known also as suspensive veto, is the most known and media covered competence of the National Council. To pass the law the second time the absolute majority in the National Assembly is needed. After that the decision is final and may not be changed. Because there is no option for discussion, but only voting on the law the second time round in the National Assembly, the National Council has been trying to amend the Rules of Procedure of the National Assembly in order to make it possible for National Assembly to amend the laws after the suspensive veto of the National Council, the reason being – why to reject the entire law, when only a small change may sometimes make it agreeable for both chambers.

Articles 93 and 97 of the Constitution provide for the right of the National Council to request the initiation of an enquiry on matters of public importance (parliamentary enquiry). Article 93 of the Constitution provides that the National Assembly may order an enquiry on matters of public importance and must do so either at the request of one third of deputies of the National Assembly or at the request of the National Council. The National Council may request an enquiry on matters of public importance. An important characteristic of the initiation of a parliamentary enquiry is that it may lead to the enforcement of political responsibility of the President or members of the Government. According to the first paragraph of Article 68 of Rules of Procedure of the National Council, a request for the initiation of a parliamentary enquiry may be proposed by any councillor, commission, or interest group of the National Council. The National Council reaches a decision concerning the request for an initiation of a parliamentary inquiry with a majority of votes of councillors present at the session. As the proposer, the National Council may appoint a representative to be present at the discussion of the parliamentary enquiry request at the session of the National Assembly.

The Act on the Constitutional Court (Article 23.a) awards to the National Council the right to submit to the Constitutional Court a request for the commencement of a procedure of review of constitutionality and legality of regulations and general acts. The National Council may use this competence when it believes that a particular provision, part of an act, or an act in its entirety violates the Constitution or its particular constitutional provisions. The National Council can submit the request for the commencement of a review of constitutionality and legality of regulations and general acts after the regulation or the general act is promulgated and hence valid in the Slovene legal system.

Before the amendment of the Constitution in 2013 the National Council could also require the calling of a referendum. The National Council could do so in within seven days of the adoption of the law. The absolute majority was needed. That was indeed the strongest competence the National Council ever possessed. However strong in its power it was only used twice - in 1997 – regarding the electoral system and in 2007 – regarding Ownership Transformation of Insurance Companies Act. In the last case the National Council succeeded. Since 2013 the right to call referendum belongs solely to 40.000 voters.

a) Distinguish issues which are not submitted at all to the second chamber/where the final decision is taken by the first chamber/where the second chamber has a limited veto right etc. Please address these questions the other way round if the second chamber has more powers than the first one.

The National Council may convey to the National Assembly its opinion regarding all matters within its sphere of competence of the National Assembly. The National Council may veto all the laws adopted by the National Assembly (but not the constitutional laws or the budget of the Republic of Slovenia).

The National Council has weaker powers in comparison to the National Assembly.

b) Are there specific appointments that must be done solely by the second chamber? If so, the appointment must be done by supermajority/qualified majority/simple majority/absolute majority?

No.

c) What kind of parliamentary initiative can the first and second chamber exercise?

Both the National Assembly and the National Council of the Republic of Slovenia have the power to exercise parliamentary initiatives, but the rules and procedures for doing so differ between the two chambers. In the National Assembly, parliamentary initiatives can be proposed by individual members or by parliamentary groups. These initiatives are then considered by the relevant parliamentary committees, which may propose amendments or reject the initiative outright. If the initiative is approved by the committee, it is then debated and voted on by the full National Assembly. In the National Council, parliamentary initiatives can be proposed by individual members or by interest groups. These initiatives are considered by the relevant commission, which may propose amendments or reject the initiative outright. If the initiative is approved by the committee, it is then debated and voted on by the full National Council. The exact procedures for proposing and considering parliamentary initiatives are set out in the rules of procedure of each chamber.

d) What happens in case of disagreement (in case of asymmetrical as well as of symmetrical bicameralism): how many readings before the final decision? Does a mixed commission meet?

The second paragraph of the Article 91 of the Constitution regulates the law reconsideration process, which is a consequence of the filed suspensory veto of the National Council. The National Council can, within seven days since the law’s adoption and before its promulgation, request, that the National Assembly reconsiders its decision of adopting the law. After the veto has been voted, the law reconsideration continues within the National Assembly. In the second consideration, the majority of all deputies must be reached, unless the Constitution states that greater majority is needed for adopting this type of law. Law reconsideration effects are final and cannot be undone.

The National Assembly must reconsider its decision and only after another consideration of the law, after the veto is whether adopted or rejected, the legislative procedure is concluded. Considering the consequence of the suspensory veto, National Assembly’s first law adoption has a nature of a conditional decision, that is, until the seven day period passes.

e) To which chamber are draft laws and other drafts to be examined by Parliament or the legislature submitted first?

All draft laws are submitted first to the National Assembly.

f) Is the government responsible to the second chamber (when it is before the first one)?

No.

g) Are decisions taken by a joint meeting of both chambers and, in the affirmative, which ones?

No.

h) Does the second chamber have a specific role in emergency situations?

No.

14.Is there a form of intergovernmental conference of regions in your country (conference of ministers or presidents of regions, Landers, states members of the federations)? Does it interact with the second chamber? How often does it meet? What is its specific relevance?

There is not a form of of intergovernmental conference of regions.