Charter drafters' dilemma - how to justify non-elected senators?

The drafters explained that elected senators often are not independent of political influence – a fact that is undeniable. When you contest elections, you certainly cannot avoid being involved in politics. But through election, senators are “connected” to the people and they can claim that they act in the name of their voters, and not someone else.

Appointed senators have no connection with the people, and they are often suspected of lacking neutrality or having hidden agenda. However, appointed senators are mostly free from political influence and there is a better chance of getting senators with satisfactory qualifications through appointment.

The constitution drafters have attempted to persuade people to believe that mixing election and appointment will not help. They said that having elected and appointed senators in the same chamber was like putting fish of different types together and they would never blend in with each other. This was proven in the Upper House elected under the previous constitution of 2007.

It is likely the charter drafters will opt for indirect election of senators – which seems to be a mixture of the two methods (direct election and appointment). An initial idea calls for people in different professional groups to elect their representatives to serve as senators. A good point with indirect election is that senators come from various professions and there is high likelihood of getting proficient and competent senators. And, in theory, Senate members elected this way can claim to represent the people. 

However, the question is whether those senators will really be free from political influence. Many professional groups are connected to politics to different degrees. And in fact, senators elected this way represent interest groups, not the electorates in general.

The Senate has three main powers – screening legislation passed by the House of Representatives, appointing and removing members of independent organisations, and impeaching political office holders.

A dominant argument for elected senators is that the power of impeaching political office holders, who are elected by their electorates, should be given to people who are also elected. Some people may argue that judges are not elected and they have the power to punish elected politicians. That is another matter. Punishment ordered by a court is part of justice proceedings, but impeachment is a political process.

The constitution drafters appear to view elected senators as a problem, and they are attempting to find legitimacy for not electing senators. They have thus come up with the idea of depriving non-elected senators of the power to impeach political office holders. They argue that without the impeachment power, senators do not need to be elected.

But, in fact, senators do have another important power – in appointing and impeaching members of independent organisations. Those organisations played a key role in political changes over recent years and they still maintain power over the political arena. The Constitutional Court is empowered to remove political office holders. The National Anti-Corruption Commission has the power to bring political office holders to court. And the Election Commission is empowered to disqualify winning electoral candidates.

Non-elected senators may be questioned if they still maintain the power of appointing members of those powerful independent organisations. Senators have a wide variety of powers. Depriving them of just one power will not answer the question, why they should not be elected.