Venice Commission - Report on Bicameralism
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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)?
Parliamentary immunity for both.
Although the (constitutional) legislation differs in its wording, there are actually no differences regarding the legal status of the members of the National and the Federal Council:
Non.
There are no differences in legal status between delegates of the House of Peoples and members of the House of Representatives.
Since 2018, the Supreme Court restricts parliamentary immunity. Previously judged only by the Supreme Court (STF), most cases will now have to be heard by the ordinary courts.
Generally speaking and in principle, there are no differences in legal status per se, although particular provisions apply to the Senate and to the House of Commons and their members. Under section 18 of the Constitution Act, 1867, the Parliament of Canada is empowered to define, from time to time by Act of Parliament, the “privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively”. Section 4 of the Parliament of Canada Act, in turn, provides as follows:
Both have immunity, but Chilean law sets a low threshold for the lifting of immunity (simply requiring that there be grounds for suspicion of involvement in crimes).
There are no differences regarding the legal status of members of the two chambers (see Art. 27 of the Constitution).
Apart from the duration of the mandate, there is no difference between the legal status of the members of the two chambers during the exercise of their mandate. Immunities, incompatibilities, rules on the prevention of conflicts of interest and the system of allowances are identical. However, there is a difference in the pension schemes, as each chamber has its own pension system.
There are a few important differences between the legal status of the members of the two chambers. The members of the Bundesrat are not free how to vote, but have to cast their votes en bloc. Unlike the members of the Bundestag they do not have a “free mandate” because of their role as representatives of their Land; they are bound by instructions (Article 51 Subsection 3 Basic Law). Therefore, the provisions for the Bundesrat expressly differ between members of the Bundesrat (Article 51 subsection 1 sentence 1 Basic Law ) and their votes (Article 51 subsection 3 sentence 1 Basic Law ). Voting en bloc is significant for the Bundesrat since it decides with at least the majority of its votes (Article 51 subsection 3 sentence 1 Basic Law).
There is no difference in the legal status of members of the Dáil and the Seanad in Ireland. Members of both houses entitled to certain privileges and immunities, such as freedom of speech in their particular House, and they are also protected from arrest while attending or travelling to and from House business. These immunities are set out in Article 13 of the Constitution.
11. The constitution provides the same status for deputies and senators (art. 68 Const.)
Parliament adopts laws in a separate session of the Chambers by sequential consideration of issues first in the Mazhilis and then in the Senate, including:
In Mexico, Senators and federal Deputies have the same legal status, regarding to: 1) impossibility to prosecute them for the opinions expressed in the performance of their duties and, 2) in order to initiate a criminal proceeding against them, during their time in office, the Chamber of Deputies must approve, by absolute majority, if the proceeding may be initiated, nevertheless, this does not apply to civil inquiries.
Il convient de noter une similitude au niveau du statut, des incompatibilités, des immunités et des règles de déchéance, exemple :selon l’article 61 de la constitution,« Tout membre de l'une des deux Chambres qui renonce à l'appartenance politique au nom de laquelle il s'est porté candidat aux élections ou au groupe ou groupement parlementaire auquel il appartient, est déchu de son mandat ».
NO
In both chambers, the privileges of parliamentarians are the same. i.e. they are entitled to immunity (inviolability), the right to allowances, free travel, leave for the duration of the term of office, while maintaining the continuity of work. Unlike deputies, senators do not have the right of interpellation or the right of legislative initiative; a request for a legislative initiative may be submitted by a group of 10 senators or a Senate committee.
The incompatibilities and the rules on parliamentary immunities are similar in respect of both deputies and senators (see article 71 and article 72 of the Constitution).
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.
No. There are not significant differences.
There are no differences regarding the legal status of members of the two chambers.
As referred to in Article 83 of the Constitution that the provisions relating to the parliamentary immunity of members of the Assembly of People's Representatives extend to members of the National Council of Regions and Districts, there are no differences between the legal status of members of the two chambers.
There are no significant differences in terms of legal status. All members are required to register interests and no proceedings in parliament may be questioned in Court proceedings.
There are no such differences. Usually, discussion revolves around members of Congress (i.e., both houses) inclusively, and makes no distinction between the two chambers. For example, certain privileges and immunities in Article 1, Section 6 of the Constitution (i.e., privilege from arrest and the freedom of debate in Congress) attach to both Senators and Representatives equally.
Algeria
Austria
Free mandate: Art. 56 para. 1 B-VG states that both – the members of the National Council and the members of the Federal Council – are bound in the exercise of their function by no mandate.
Immunity:
National Council:
Art. 57 B-VG:
(para. 1) The members of the National Council may never be made responsible for votes cast in the exercise of their function. They may be made responsible on the grounds of oral or written utterances made in the course of their function only by the National Council; this does not apply to prosecution by authorities because of defamation or an offence punishable under the Federal Act on the Information Rules of the National Council and the Federal Council.
(para. 2) The members of the National Council may on the ground of a criminal offence – the case of apprehension in the act of committing a crime excepted – be arrested only with the consent of the National Council. Domiciliary visitations of National Council members likewise require the consent of the National Council.
(para. 3) Legal action on the ground of a criminal offence may otherwise without the consent of the National Council be taken against members of the National Council only if it is manifestly not connected with the political activity of the member in question. The authority concerned must however seek a decision by the National Council on the existence of such a connection if the member in question or a third of the members belonging to the standing committee entrusted with these matters so demands. Every act of legal process shall in the case of such a demand immediately cease or be discontinued.
(para. 4) In all these instances the consent of the National Council counts as granted if within eight weeks it has not given a ruling on an appropriate request by the authority competent for the institution of legal action; the President, with a view to the National Council’s adoption of a resolution in good time, shall at the latest put such a request to the vote on the day but one before expiry of the deadline. The latter does not include the period when the National Council is not in session
(para. 5) In case of a member’s apprehension in the act of committing a crime, the authority concerned must immediately notify the President of the National Council of the occurrence of the arrest. If the National Council or when it is not in session the standing committee entrusted with these matters so demands, the arrest must be suspended or the legal process as a whole be dropped.
Federal Council:
Art. 58 B-VG: The members of the Federal Council enjoy for the whole duration of their tenure of office the immunity of the members of the Provincial Parliament which has delegated them.
Art. 96 para. 1 B-VG: The members of a Provincial Parliament enjoy the same immunity as the members of the National Council; the provisions of Art. 57 shall apply mutatis mutandis.
Conflict of interest:
The provisions concerning the conflicts of interest of members of the two chambers (National and Federal Council) coincide:
• No member of the National Council, the Federal Council or the European Parliament can simultaneously belong to one of the two other representative bodies (Art. 59 B-VG).
• While in office, the Federal President may not belong to a general representative body (Art. 61 para. 1 B-VG).
• Members of a general representative body cannot belong to the Supreme Court (Art. 92 para. 2 B-VG).
• The president of the Court of Auditors may neither belong to a general representative body (Art. 122 para. 5 B-VG).
• Members of the National Council and the Federal Council cannot belong to the Administrative Courts and the Supreme Administrative Court (Art. 134 para. 5 B-VG).
• Members of a general representative body cannot belong to the Constitutional Court (Art. 147 para. 4 B-VG).
• Ombudsman board members may belong to a general representative body (Art. 148g para. 5 B-VG).
Belgium
Bosnia and Herzegovina
Brazil
Canada
4 The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise
• (a) such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, in so far as is consistent with that Act; and
• (b) such privileges, immunities and powers as are defined by Act of the Parliament of Canada, not exceeding those, at the time of the passing of the Act, held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof.
Part II of the Parliament of Canada Act sets out a series of provisions relating to the Senate (sub-divided in detail within sections 16 to 20, and dealing with conflicts of interest, the Deputy Speaker, internal administration, regulations, financial administration, and in particular the Standing Senate Committee on Internal Economy, Budgets and Administration, and the Senate Ethics Officer). Similarly, Part III of the Parliament of Canada Act relates to such matters in respect of the House of Commons and its members.
Chile
Czechia
France
Germany
All Bundesrat members also have twofold roles: They are both members of the Bundesrat and hold an office in the government of the Land.
Members of the Bundestag, however, have a free mandate, meaning that they are independent (although there might be some form of “party discipline” in voting). They have specific status rights e.g. the right to form a parliamentary group. These rights are derived from Article 38 subsection 1 sentence 2 Basic Law.
Furthermore, they have the right to immunity and indemnity and the right of refusal to give evidence (Article 48 Basic Law), rights which are not accorded to the members of the Bundesrat as governmental representatives.
Ireland
Italy
Kazakhstan
1) approves the republican budget, makes changes and additions to it;
2) establishes and cancels state taxes and fees;
3) establishes the procedure for resolving issues of the administrative-territorial structure of Kazakhstan;
4) establishes state awards, establishes honorary, military and other ranks, class ranks, diplomatic ranks of the Republic, determines the state symbols of the Republic;
5) resolve issues on state loans and the provision of economic and other assistance by the Republic;
6) solve the issues of amnesty;
7) ratifies and denounces international treaties of the Republic.
Parliament in a separate session of the Chambers by sequential consideration of issues, first in the Mazhilis, and then in the Senate:
1) discusses reports on the execution of the republican budget;
2) hold a second discussion and vote on the laws or articles of the law that raised objections from the President of the Republic, within a month from the day the objections were sent. Failure to comply with this deadline means acceptance of the objections of the President. If the Mazhilis and the Senate, by a two-thirds majority of the total number of deputies of each of the Chambers, overcome the objections of the President, the President signs the law within one month. If the objections of the President are not overcome by at least one of the Chambers, the law is considered not adopted or adopted in the wording proposed by the President;
3) takes the initiative to call a republican referendum (Article 54 of the Constitution of the Republic of Kazakhstan).
Mexico
Morocco
The Netherlands
Poland
Romania
Slovenia
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.
Spain
Switzerland
Tunisia
United Kingdom
United States of America