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The Swiss political system is characterised by various particularities which distinguish it from theoretical models of political systems and from those systems which exist in other states. The following particularities are most noteworthy.
Swiss citizens are regularly called upon to vote on specific political issues. Their decisions are legally binding and cannot be overturned or ignored by state authorities. On the federal level, popular initiatives and referenda are the relevant instruments. Accordingly, the Swiss system is often termed a semi-direct democracy, mixing elements of a representative system with strong direct democratic elements.24 In addition, the cantons and communes are free to set up their own systems and methods which operate to facilitate the direct participation of the people.
A popular initiative is an instrument unique to Switzerland: it allows citizens to request a vote on a revision of the Constitution (Articles 138–139b Constitution). It requires the approval of a majority of the people who vote and a majority of the cantons in order to be successful.
The right to launch a popular initiative was introduced in 1891. When it was first introduced, 50’000 citizens were required to sign an initiative in order for it to be put to the vote of the people and the cantons. Since then, some limitations have been added: in 1976, the time period within which the required amount of signatures must be collected was circumscribed to 18 months. In 1977, i.e. shortly after women’s suffrage had been introduced (as mentioned, this was not until 1971), the number of signatures was raised to 100’000. The Constitution leaves it to the drafters of an initiative to decide whether to propose a revision in general terms or to submit a specific draft of a provision or several provisions. In practice, specific drafts are the norm. The authors of an initiative are free to choose an appropriate title, as long as it is not misleading. Accordingly, authors tend to label initiatives with lurid titles in order to sell them on the political market. An illustrative example was the initiative “against rip-off” (“gegen die Abzockerei”) in 2013 which was approved by the people and the cantons.
The Constitution does not set any hurdles for proposing new provisions, except that peremptory norms of international law must not be violated (ius cogens) and, in the case of a proposal for a partial revision, that the principle of unity of form and subject-matter is respected (Article 139 III Constitution). One example of an initiative which did not meet the former requirement was the initiative entitled “enforcing the expulsion of criminal foreign nationals” (“Zur Durchsetzung der Ausschaffung krimineller Ausländer”) of 2016, which demanded a strict implementation of the original initiative of 2010.25 This initiative was declared partially invalid by the Federal Assembly; although it acknowledged the supremacy of ius cogens over the proposed provisions, it defined ius cogens exhaustively, rather than leaving it to the international community to further develop this concept and include new elements over time.
Traditionally, popular initiatives have been launched by minorities on issues the established political parties do not want to take up in parliament. In recent years, political parties have increasingly begun to take recourse to initiatives themselves, by-passing the classic parliamentary process. Moreover, initiatives can be launched by interest groups to bring a specific concern to the attention of the public, thereby exerting pressure on the political parties to address the issue. The constitution provides for the possibility that the Federal Assembly submits a counter-proposal to an initiative; when this is the case, the committee responsible for the initiative can withdraw it, and only the counter-proposal – considered to be more likely to meet approval – is submitted to the vote of the people and the cantons. The Federal Assembly might also begin efforts to enact a federal act which encompasses the objectives of the initiative (indirect counter-proposal); again, in this case, the committee who launched the initiative might withdraw it.
The people and the cantons have become more willing to approve popular initiatives over the last fifteen years or so. Out of the 22 initiatives which were approved since the creation of this instrument in 1871, ten were approved of after 2002. Amongst these were various initiatives which were incompatible with international law. This is problematic.26
A referendum allows citizens to vote on a constitutional revision, a federal act or an international treaty (Articles 140–142 Constitution). Two types are provided for:
-A mandatory referendum: this takes places automatically, i.e. without the need for any action from the authorities or the people, in the case of constitutional revisions initiated by the Federal Assembly, accessions to organisations for collective security (e.g. NATO) or to supranational communities (e.g. the EU) and in the case of emergency acts not based on a constitutional provision. Such referenda require the approval of the majority of the people who vote and the majority of the cantons in order to be successful.
-An optional referendum: this can be requested by 50’000 citizens against, in particular, the enactment of a federal act (introduced in 1874) and the conclusion of an international treaty which is of unlimited duration and cannot be terminated, provides for accession to an international organisation, or contains important legislative provisions or requires the enactment of federal legislation for implementation (introduced in 1921, extended in 1977 and 2003). Originally, the necessary number of signatures was 30’000. In 1977, the number was increased to 50’000. The signatures must be collected within 100 days of the official publication of the act or treaty. The people’s vote is decisive for the outcome of such a referendum; it is not necessary that a majority of the cantons also approve or reject the act or treaty.
Since 1874, there have been 183 cases where optional referenda have been held, after citizens have successfully collected the necessary number of signatures. In 79 votes, the people agreed to put in force the act or treaty in question; a prominent and to some extent controversial example was the approval in 2002 of an act which legalised abortions during the first 12 weeks of pregnancy (Article 119 Swiss Criminal Code). In 104 votes, the outcome was negative, and the act or treaty was not put into force as originally envisaged by the Federal Assembly: a prominent example was the rejection of the Federal Act on the 2020 Pensions Reform in 2017.
The existence of the referendum in Switzerland modifies the representative system. It is the main instrument of control of, and opposition against, the Federal Assembly. To some extent, providing for the possibility to launch an optional referendum compensates for the lack of a fully-fledged parliamentary opposition.27 The Federal Assembly creates legislation which takes into account the concerns of as many political parties and stakeholders as possible, thus enhancing the chance that the final product will “survive” a possible referendum. Effectively, the citizens of Switzerland themselves become a key opposition to the Federal Assembly. Considering all of this, it becomes clear why the Swiss “referendum democracy” is often referred to as “consensus-oriented democracy”.28
c)“Landsgemeinde” as Cantonal Particularity
The cantons choose their own models for the participation of their citizens in the political process. A particularity is provided for in the cantons of Appenzell Innerrhoden and Glarus, which have appointed the Landsgemeinde as their main decision-making body. Once a year, the cantonal citizens eligible to vote gather on the main town square in the respective capitals, Appenzell and Glarus, and decide on all relevant matters, including any revisions of the cantonal Constitutions, the enactment of cantonal laws and issues surrounding elections. Pending issues are openly debated. Votes and elections are held in public; the method of voting is the raising of hands. Usually, the votes are estimated by the chairman or chairwoman. Votes are only actually counted individually in exceptional cases.
From a legal viewpoint, the Landsgemeinde presents various issues. Open voting conflicts with the right to submit a secret vote (Article 34 Constitution). Citizens who are unable to attend – such as elderly or ill people or people with professional commitments – are excluded from exercising their political rights. This is problematic. Still, the Federal Supreme Court held that these restrictions do not amount to a violation of the federal Constitution, “in spite of deficiencies inherent in the system”.29
Most European countries adhere to a parliamentary system of government, whereby the prime minister and his or her government depend on Parliament’s support.30 The strongest party selects the prime minister and forms the government, occasionally together with other parties as a coalition, if this is necessary to form a majority.
In Switzerland, a substantially different approach has developed over time. During the first decades of the confederation’s existence, the Federal Council was composed only of members of the Liberals (FDP). Towards the end of the 19th century, in the aftermath of the introduction of the referendum and the popular initiative for a partial revision of the Constitution, the pressure to include members of other political parties grew. Therefore, in 1891, the first member of the Christian Democratic People’s Party (CVP) was elected to the Federal Council. In 1929, the first member of the Party of Farmers, Traders and Independents (BGB), which was the predecessor of the Swiss People’s Party (SVP), became councillor. In 1943, the Social Democratic Party (SPS) was represented in the Federal Council for the first time. Since then, it has been a Swiss particularity that all major political parties are represented in the Federal Council. To this effect, in 1959, the so-called “magic formula” was firmly established in Switzerland. According to this formula, the Federal Council should consist of two members of the Liberals (FDP), the Social Democratic Party (SPS) and the Christian Democratic People’s Party (CVP) and of one member of the Swiss People’s Party (SVP). The distribution reflected, approximately, the number of seats which the parties usually won in the general elections. In 2003, the formula was slightly modified to reflect changes in the parties’ popularity. The Swiss People’s Party (SVP) gained one seat; they now have two members in the Federal Council.31 They gained their extra seat at the detriment of the Christian Democratic People’s Party (CVP) which has only had one seat since then. Both the Liberals (FDP) and the Social Democratic Party (SPS) still have two seats each.
The magic formula reflects a tacit agreement between the major parties that a collegiate system of a multi-party government best suits the interests of Switzerland. In particular, this practice – where members of all major parties can influence the drafting from the very start – ensures that the Federal Council prepares legislative drafts in a way that they both achieve a majority in the Federal Assembly and also would be likely to “survive” a possible referendum. The collegiate system of a multi-party government is an essential part of the Swiss “concordance democracy”32.
However, there is no legal obligation on the part of the Federal Assembly to elect councillors according to the magic formula. As such, with each election of a new councillor, the pros and cons of the Swiss model are discussed, and the public watches the resulting commotion in the Federal Palace with fascination. Nevertheless, despite the recurring debate, it seems likely that the magic formula will continue to form the basis for the composition of the Federal Council, although perhaps this composition will more readily adapt to actual developments than was the case in the previous decades.33
3. LIMITED CONSTITUTIONAL REVIEW
Constitutional review – i.e. court review of the compatibility of legal acts and decisions with the Constitution and their power to declare such acts invalid if they are incompatible – is a characteristic of most European legal systems. In Switzerland, however, none of the courts are equipped with this function, at least with respect to federal acts. This is due to Article 190 Constitution, which mandates that the Federal Supreme Court and the other judicial authorities apply the federal acts and international law. Therefore, the courts are obliged to apply federal acts even if they are found to violate the Constitution.
In essence, it is the Federal Assembly which authoritatively interprets the Constitution during the process of enacting federal acts. This includes making an assessment as to whether federal acts are compatible with fundamental rights and whether the Federal Assembly is actually empowered by the Constitution to enact legislation in a specific policy field. This particular allocation of competence and responsibility is based on a deliberate systemic choice, approved of by the people and the cantons. Attempts to introduce the right of the judiciary to hear cases on the constitutionality of federal acts, for instance by simply deleting Article 190 Constitution, have repeatedly failed to gain enough political support.
Thus, the Federal Assembly becomes the final interpreter of the Constitution. The problematic aspects of this system are clear; the Federal Assembly is not ideally suited, for example, to guarantee fundamental rights, acting as it does through majority voting. However, the Federal Assembly is at least well placed to take its role as final interpreter of the Constitution seriously: it benefits from the advice and assistance of the Federal Council and the legal specialists in the federal administration who prepare drafts and assist in the decision-making process. Notably, it is not easy to point to federal acts which evidently violate the Constitution. Further, the following aspects of the case law of the Federal Supreme Court contribute to minimising the deficiencies of the current system specifically with respect to the protection of fundamental rights:
-The Federal Supreme Court consistently interprets federal acts in light of fundamental rights, thereby adhering to the method of interpreting the law in conformity with the Constitution.34
-The Federal Supreme Court does not refrain from pointing to existing incompatibilities if it is not possible to interpret federal acts in conformity with fundamental rights.35 By doing so, the Federal Supreme Court calls upon the Federal Assembly to remedy the identified deficiencies; it is a method through which the Federal Supreme Court can press the Federal Assembly to at least discuss the issue.
-The Federal Supreme Court accepts cases in which it is called upon to review federal acts in light of the ECHR.36 The possibility for citizens to directly invoke the rights under this Convention before the Federal Supreme Court somewhat compensates for the lack of constitutional review of federal acts: individuals can request that a federal act which is not compatible with a right guaranteed in the ECHR does not apply.
The Federal Supreme Court is competent to review the compatibility of cantonal laws and decisions with the federal Constitution. Various causes célèbres of the Federal Supreme Court concerned such constellations and have led to the development of an impressive stream of case law on fundamental rights.37 Indirectly, this case law again influences the law-making process at the federal level; it becomes clearer to the Federal Assembly what the court will regard as constitutionally unacceptable.38 Moreover, it is possible to challenge decisions based on federal ordinances as to their alleged incompatibility with the federal Constitution and to request their annulment.
24See for the societal preconditions upon which the Swiss model of direct democracy depends the chapter on Legal Sociology, pp. 118.
25Previously discussed in the section on Foreign Nationals, pp. 142.
26See the chapter on International Relations, pp. 177.
27HALLER, n. 7.
28PATRICIA EGLI, Introduction to Swiss Constitutional Law, Zurich/St. Gallen 2016, p. 64; FLEINER/MISIC/TÖPPERWIEN, n. 26, 98; HALLER, n. 227.
29BGE 121 I 138.
30HALLER, n. 238 et seq.
31This was partly interrupted between 2007 and 2015 when elected members of the SVP chose to leave the party and join a newly founded party, the Conservative Democratic Party (BDP).
32HALLER, n. 227; EGLI, p. 95.
33See also FLEINER/MISIC/TÖPPERWIEN, n. 210.
34See e.g. BGE 137 I 351.
35See e.g. BGE 136 I 65.
36BGE 125 II 417 (PKK); see the chapter on International Relations, p. 177.
37See pp. 159.
38HALLER, n. 569.