Comparing powers of upper houses

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
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.
“Parliamentum” is a latin word. The word “parlement” is an old French word and relates
to the current French word “parle” to talk.
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.
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
9
2
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
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
10
11
12
13
3
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
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
14
15
London, 1967 at pages 24-25.
16
17
18
19
4
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
.
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
20
21
22
23
24
25
5
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
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
26
27
28
29
30
Lords by party and type of peerage UK parliament website www.parliament.uk
31
174.
6
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
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
32
This act also allowed female hereditary peers equal rights, and Scottish hereditary peers full membership.
33
Section 2(2) of the House of Lords Act 1999.
34
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
172.
7
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
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;
37
The House of Lords: a guide to business www.parliament.uk
38
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
41
Briefing: the work of the House of Lords: its role, functions and power www.parliament.uk
8
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
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
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.
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
45
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.
9
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
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
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
49
House of Lords: It’s parliamentary and judicial roles, Hart Publishing, 1999 at page 15.
50
House of Lords: It’s parliamentary and judicial roles, Hart Publishing, 1999 at page 23.
51
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 56
53
10
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
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
54
55
56
57
58
59
60
editors House of Lords: It’s parliamentary and judicial roles, Hart Publishing, 1999, at page 40, Also,
Section 133 Constitutional Reform Act 2005.
11
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
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.
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
House of Lords: It’s parliamentary and judicial roles, Hart Publishing, 1999, at pages 8-10.
64
183.
65
House of Lords: It’s parliamentary and judicial roles, Hart Publishing, 1999, at page 15.
12
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-
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.
66
67
Section 7 Constitutional Reform Act 2005
68
Ken Bradshaw & David Pring Parliament & Congress University of Texas Press, Austin, 1972 at pages
193-196.
13
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 Speaker
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
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 Rights
72
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.”
14
The United States Senate
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
73
Article 1 Section 1 of the US Constitution.
74
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
176.
15
class vacate their seats after six years, creating a permanent Senate with one-third of the
members chosen every two years.77
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,
77
Article 1 Section 3 US Constitution.
78
Vik D Amar, The Senate & the Constitution Yale Law Journal 97 no 6 May 1988 p1118-1119.
79
Senate Rules 37, 38.
80
178.
81
Article 1 Section 3 US Constitution..
16
being justified by the “senatorial trust” and the need for a “greater extent of information
and stability of character”.82
Elections
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
82
James Madison, The Federalist Papers number 62.
83
84
85
86
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
89
J W Pettason We the people - The Constitution of the USA with explanatory notes US Information
Agency 1987.
90
17
authorizing the President to make “congressional-executive” agreements where a simple
majority of both Houses suffices as approval, or “executive agreements” whereby no
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
91
Laurence Tribe Taking text and structure seriously: reflections on free-form method in constitutional
interpretation Harvard Law Review 108 no 6 p1221-1303
92
93
Article 1 Sections 2 & 3 US Constitution.
94
Article 1 Section 3 & Article 2 Section 4 US Constitution.
95
192.
96
Article 5 US Constitution.
18
the Senate can be very influential, as contemporaneous comments made at the time in
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
99
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
104
Senate Standing Rules
105
106
Article 6 US Constitution.
107
19
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
197-202.
109
Article 1 Section 5 US Constitution
110
Senate Standing Rules.
111
112
“Powers & Procedure” www.senate.gov
20
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
21
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
22
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.
23
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
page 89.
117
page 88.
118
Adbul Aziz Bari The Malaysian Constitution – a critical introduction The Other Press 2003 at page 92.
119
page 96.
24
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
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
page 32
25
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
page 96.
124
page 81.
125
page 271.
126
pages 96–97.
127
169-170.
26
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.
27
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
131
See Companion to Standing Orders and guide to proceedings of House of Lords www.parliament.uk
132
133
Companion to Standing Orders and guide to proceedings of House of Lords www.parliament.uk pages
18-19.
134
page 84.
28
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

Comparing powers of upper houses

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Compare and contrast among the compositions, powers and functions of the

- How did parliament develop?

Origins and development of parliament

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

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

After 1830 the party system became entrenched.29

The House of Lords

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

Former judicial powers

Procedure & working methods68

Membership & composition

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

Powers & functions

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

The Dewan Negara (Senate) of Malaysia

Membership & composition

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

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

Procedure & working methods

Power & Functions

Other comparisons are as follows:

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