In this chapter, an initial glimpse at direct democracy in Switzerland is taken. Participation at the federal (1.), cantonal (2.), and (3.) communal level will be examined separately. A thorough examination of direct democracy will be undertaken in MATTHIAS OESCH’S chapter on constitutional law.40
1. FEDERAL LEVEL
For the average Swiss person, direct democracy is more than merely a specific form of decision-making. Direct democracy is a core element of the Swiss national identity. As ANDREAS THIER convincingly argues, political participation and self-determination are deeply rooted in Swiss tradition. Their importance can be traced back to the public peaces (Landfrieden) of the high and later Middle Ages: “The conceptual basis of these public peaces was the idea of creating associations based on collective vows. This kind of association was called sworn union (coniuratio).”41
The importance of the coniuratio in the narrative of the Swiss nation (“Rütli-Schwur”)42 might also explain why, up to this day, democratic participation in Switzerland is inextricably tied to citizenship and not to financial contribution. In order to vote in elections, referenda, and initiatives, one must be a Swiss citizen; being a Swiss tax-payer alone is insufficient. It could thus be argued that although the federal structure of Switzerland was inspired by the United States, the origins of Swiss democracy do not lie in the battle-cry of the American Revolution (“no taxation without representation”) but rather in the small and self-determined communities of peers in the Old Confederacy.
In order to participate in national elections and polls the voters not only need to be Swiss citizens, they also must be of legal age, i.e. 18 years, and must not “lack legal capacity due to mental illness or mental incapacity” (Article 136 I Constitution).43 Dual citizens are allowed to vote, as are Swiss citizens who live abroad. In contrast, as already mentioned, foreigners who live, work, and pay taxes in Switzerland do not have any right to participate in federal elections or polls. In a limited number of cantons, foreigners have the right to vote. Considering the high threshold for becoming a Swiss citizen,44 this total exclusion of foreigners (25 % of population)45 from political participation is questionable. However, the darkest chapter in the history of political rights in Switzerland still remains women’s suffrage. On the federal level, women only obtained the right to vote in 1971. On 27 November 1990 the Swiss Federal Supreme Court had to force the canton of Appenzell Innerrhoden to introduce suffrage for women at the cantonal level.46
Direct democracy is commonly defined as a political system where decisions are taken by the electorate, i.e. the people themselves. Direct democracy is different from representative democracy: in the latter form, decisions are taken by the elected, i.e. the parliament and/or the government. Decision-making by the people traditionally comes in two forms: top-down or bottom-up.
In the top-down category, a decision that has been taken by the legislator is taken back (Latin: re-ferre) to the electorate for approval, hence the term referendum. In Switzerland, any amendment of the constitution through the Federal Assembly must be submitted to a “mandatory referendum” (Article 140 Ia Constitution). Only when the majority of the Swiss cantons and people approve does the amendment take legal force. For example, on 30 September 2016, the Federal Assembly decided that the confederation should enact simplified regulations on the naturalisation of third generation immigrants and stateless children. To fulfil this, the Federal Assembly had to change Article 38 of the Constitution by adding a paragraph 3 and submitting this addition to a mandatory referendum. On 12 February 2017, the proposed change was approved by over 60 % of the Swiss people and by 19 cantons.47
In the bottom-up form of direct democracy, change is initiated by the people (Latin: plebs) themselves who want to bring about a decision (Latin: scitum), hence the term plebiscite. In Switzerland there are mainly two forms of plebiscites on the federal level. First, the popular initiative: this instrument is used to change or amend the Constitution. Any 100’000 Swiss citizens may, within 18 months of the official publication of their initiative, request a revision of the Federal Constitution (Article 138 I and Article 139 I Constitution). On 1 May 2007, politicians of the right-wing Swiss People’s Party and the Federal Democratic Union of Switzerland launched an initiative for a nationwide ban on minarets. Within 14 months, they gathered over 113’000 signatures in support of the initiative. The Federal Council and an overwhelming majority of both chambers of the Federal Assembly recommended that the people should reject the initiative. It was argued that the initiative stood at odds with several fundamental values of the Swiss Constitution, such as equality, freedom of religion, or proportionality. However, on 29 November 2009, 57.5 % of the voters as well as 19 cantons and one half-canton approved the initiative. On that day Article 72 III Constitution was enacted: “The construction of minarets is prohibited.” Since 1893 a total of 210 popular initiatives have been put to the vote, but only 22 have been accepted by the people and the cantons.
The second form of plebiscite on the federal level is the possibility for the people to challenge federal laws. Within 100 days of official publication, any 50’000 Swiss citizens can request that federal acts of parliament be submitted to a vote of the people (Article 141 Ia Constitution). Confusingly, this form of bottom-up plebiscite is called an “optional referendum” although is not a referendum in the previously explained technical sense of the term (top-down). In the case of an optional referendum, it is not the legislator that submits the act to popular approval but the people that demand their say on the matter. On 25 September 2015, the Federal Assembly decreed a new federal act on the Swiss intelligence service. This act inter alia created the possibility for large scale surveillance through the secret service. Several civil liberty groups and left-wing parties opposed the new law and gathered 50’000 signatures to bring about a plebiscite. However, the “referendum” was unsuccessful. In the national poll of 25 September 2016, over 65 % of the voters accepted the new law. It entered into force on 1 September 2017.48 Since 1875, the Swiss people have had to decide on 185 “optional referenda”. In 105 cases they voted in favour of the “referendum”, thus disavowing the legislator.49
2. CANTONAL LEVEL
Article 51 I of the Federal Constitution obliges the cantons to provide a democratic Constitution as well as for the possibility of a mandatory referendum and popular initiative: “Each Canton shall adopt a democratic constitution. This requires the approval of the People and must be capable of being revised if the majority of those eligible to vote so request.” The specific requirements under the mandatory referendum and the popular initiative are left up to the cantons. For example, in the canton of Zurich, 6’000 eligible citizens can at any point request the total or partial revision of the cantonal Constitution (Article 23 lit. a and Article 24 lit. a Constitution/ZH).50
Apart from these democratic minimal standards guaranteed by the federal Constitution, the cantons are free to create other instruments to enhance the participation of their citizens in the political process. Most cantons do so by providing at least an optional referendum and a legislative initiative to challenge cantonal laws. In the canton of Zurich, 6’000 eligible people, 12 communes, the city of Zurich, or the city of Winterthur can request that cantonal acts be submitted to a vote of the people (“optional referendum”, Article 33 Constitution/ZH): they must do so within 60 days of the official publication. According to Article 23 lit. b and Article 24 lit. a Constitution/ZH, any 6’000 eligible people can request the adoption, amendment, or rescission of cantonal laws (legislative initiative).
A Swiss particularity that currently exists in all 26 cantons is the referendum on financial matters (Finanzreferendum): new large, one-time or recurring public investments, which leave considerable room for political choices, are submitted to the public for approval.51 In the canton of Zurich, the financial referendum can be held on an optional basis against new one-time investments of more than 6 Million Francs as well as new recurring investments of more than 600’000 Francs yearly (Article 33 I lit. d Constitution/ZH), where this is requested by at least 3’000 eligible people, 12 communes, the city of Zurich, or the city of Winterthur (Article 33 II Constitution/ZH).
Furthermore, one of the oldest forms of direct democracy in Switzerland is the so-called Landsgemeinde or “Cantonal Assembly,” where all the eligible citizens of a canton form the main decision-making body. They gather once a year on the main square of the canton and decide on specific issues. Voting is conducted through the raising of hands by those in favour of a motion, which conflicts with the constitutional right to submit a secret vote (Article 34 Constitution). The use of the Cantonal Assembly has sharply decreased in the past century. Today, the cantons of Appenzell Innerrhoden and Glarus are the only remaining cantons using this form of direct democracy.52
3. COMMUNAL LEVEL
The communes can – within the boundaries of the superordinate law – provide their own democratic rules. Usually, the cantons set certain standards and requirements, e.g. the canton of Zurich stipulates in Article 86 Constitution/ZH that there shall be an initiative, a referendum, and a right to make requests on communal level. As explained above in most Swiss villages it is the communal assembly, a personal reunion of all citizens, that is the legislative body. Thus, the citizens of these communes directly decide on the statute of the commune and elect their local government or president.
40See pp. 151.
41See Chapter Legal History p. 46.
42See Figure 3, p. 6.
43This English translation of Article 136 I Constitution is inaccurate for it does not contain any mention of guardianship. A more accurate translated provision on the ineligibility to vote is Article 2 of the Federal Act on Political Rights of 17 December 1976 (PRA), SR 161.1: “Persons lacking legal capacity who are ineligible to vote in accordance with Article 136 paragraph 1 of the Federal Constitution are persons who are subject to a general deputyship or are represented by a carer as they are permanently incapable of judgement.”
44See the article ‘Becoming a citizen’ on: www.swissinfo.ch (https://perma.cc/Y6QP-URFS).
45See p. 5.
46For an in-depth discussion of BGE 116 Ia 359 see Chapter on Constitutional Law, pp. 159.
47Federal Gazette No 17 of 2 May 2017, pp. 3387.
48Federal Act on the Intelligence Service of 25 September 2015 (Intelligence Service Act, ISA), SR 121.
49The Swiss Confederation – A Brief Guide, 2018 (https://perma.cc/YM59-ZMFK), p. 19.
50Constitution of the canton of Zurich of 27 February 2005 (Constitution/ZH), SR 131.211. A particularity in the canton of Zurich is the so called individual initiative: A single person can request the revision of the cantonal Constitution as well as the adoption, amendment, or rescission of cantonal laws. If at least 60 members of the Cantonal Council (Legislature) support the initiative, it will be submitted to the Government council (Executive; Article 23 lit. a and b, Article 24 lit. c and Article 31 Constitution/ZH).
51ANDREAS LADNER, Switzerland: Subsidiarity, Power-Sharing, and Direct Democracy, in Frank Hendriks/Anders Lidström/John Loughlin (eds.), Oxford 2010, pp. 204.
52Source: Wikipedia (https://perma.cc/TN3L-WV3L).