Switzerland

Switzerland has been a federal state since 1848. Authority is shared between the Confederation (central state), the 26 cantons (federal states) and the 2352 communes. Each of these three levels has legislative powers to draw up laws and regulations, and executive powers to implement them. The Confederation and the cantons also have judiciary powers to ensure that the laws are enforced.[footnoteRef:0] [0: https://www.ch.ch/en/swiss-federalism/]

Generally, the Confederations authority is restricted to the powers expressly conferred on it by the Federal Constitution. All other tasks such as education, hospitals and policing are the responsibility of the cantons, which thus enjoy considerable autonomy. The communes have tasks which are expressly assigned to them by the Confederation or by the canton to which they belong, but they can also legislate when cantonal law does not specifically refer to issues that affect them directly.[footnoteRef:1] [1: Ibid]

Powers of the Federal Government and the Cantons

Two fundamental principles govern the distribution of powers between the Confederation and the cantons. One is the "Kompetenz Kompetenz" of the Confederation, which is a basic principle of any federal state. In the context of this competence, the Confederation can, by means of change to the Constitution (in Switzerland only with the agreement of a majority of the people and of the cantons), itself determine which tasks are allocated to it. According to the new Federal Constitution, the Confederation in such cases must bear in mind the principle of subsidiarity. "The confederation shall assume the tasks which require uniform regulation and the Confederation shall leave the Cantons as large a space of action as possible, and shall take their particularities into account.[footnoteRef:2] [2: Koller, Arnold, Introduction to the Swiss Model of Federalism]

The second fundamental principle is often referred to as the basic federal norm of Switzerland. It states: "The Cantons are sovereign insofar as their sovereignty is not limited by the Federal Constitution; they shall exercise all rights which are not transferred to the Confederation." Retention of this article was one of the main concerns of the cantons during the formulation of the new Constitution. The draft Constitution of 1977 which proposed an "open" Constitution, in which separation of competences between Confederation and cantons was to be derived primarily from general objectives and "main responsibilities" ran up against the determined opposition of the cantons. Thus, the new Constitution therefore stresses the sovereignty of the cantons as follows: "The Cantons shall define the tasks which they shall accomplish within the framework of their powers." Further, "The Confederation shall respect the autonomy of the Cantons", meaning their autonomy in the areas of tasks, finance and organization.[footnoteRef:3] [3: Ibid]

The central elements of the Swiss federal state or Canton are: as follows:

1.The autonomy and sovereignty of the cantons, which are not only decentralized administrative units of the Federal Government but also constituent states of the confederation;2.The allocation of responsibilities between federal government and cantons according to the basic rule set out in Art. 3 of the Federal Constitution, according to which the Confederation is competent only for matters which are attributed to it by the Constitution;3.Federalism based on partnership, consisting of collaboration in solidarity with one another and mutual consideration between the Confederation and the cantons;4.Participative federalism, whereby the cantons collaborate in shaping the will of the Confederation;5."Vollzugsfderalismus", whereby the implementation of federal law is primarily in the competence of the cantons;6.The tree-tier structure of the state, with Confederation, cantons and municipalities, whereby the organization of the municipalities is a matter for the cantons, but the Confederation must take into consideration the effects of its actions on the municipalities7.Financial federalism, whereby the taxing powers are divided up between the Confederation and the Cantons and the Confederation shall leave sufficient sources of financing to the Cantons and promote financial equalization among the Cantons.

The cantons enjoy the right to establish their proper governmental system, to decide on the scope of autonomy of their municipalities, to determine the scope of direct democracy granted to the citizens, and to organize their own judiciary. In addition, cantons decide on their official languages (German, French, Italian and Romansh). The only limit of cantonal autonomy with regard to their freedom to determine their governmental system is their obligation to grant the cantonal people the power to make the constitution and to comply with federal law.[footnoteRef:4] [4: Fleiner, Thomas. The Current Situation of Federalism in Switzerland]

Within their range of powers the cantons also had to find solutions to the conflicts around diversity within the canton, in particular with regard to the different religious and language communities. Moreover, cantons have the power to organize themselves. For this reason there are important differences among the cantons with regard to the scope of autonomy of municipalities, including districts and agglomerations. Municipalities of cantons influenced by French political culture are granted less powers in comparison to German-speaking cantons.[footnoteRef:5] [5: Ibid]

Besides their power to organize themselves by their own constitution, cantons have the power and responsibility to provide for security of the people, to guarantee mandatory primary education, to promote and protect their culture, to protect the environment and implement federal environmental standards, to build roads, and to provide, within the limits of the federal legislation, for cantonal development with regard to environment protection, housing, agriculture, and economy. The cantons are also the holders of public water and water resources (including hydro-energy), of forests, game, and fishing. The new constitution even enlarged cantonal powers in the field of foreign relations. Cantons are now expressly empowered to conclude treaties with other local authorities on all issues which are within the scope of their autonomy.[footnoteRef:6] [6: Ibid]

Constitutional Framework

Executive

The Swiss Federal Council is a seven-member executive council that heads the federal administration, operating as a combination cabinet and collective presidency. Any Swiss citizen eligible to be a member of the National Council can be elected; candidates do not have to register for the election, or to actually be members of the National Council. The Federal Council is elected by the Federal Assembly for a four-year term.

The largely ceremonial President and Vice President of the Confederation are elected by the Federal Assembly from among the members of the Federal Council for one-year term that run concurrently. The President has almost no powers over and above his or her six colleagues, but undertakes representative functions normally performed by a president or prime minister in single-executive systems.

The most unusual characteristic of the Federal Council, as the Swiss executive, is that it is a collegial body, which decides collectively on all important issues. The seven members are elected as equals and without any attribution to a particular department. After their election, the members of the Federal Council decide on the redistribution of the departments. They state their preference in order of seniority; however, if there is a contest, the majority principle applies. There is no permanent head of government with special prerogatives. Every year Parliament elects one of the seven councillors as president of the federation. The president is merely primus inter pares, with no special political privileges and mainly formal duties. Essentially, the role of the president is to chair the meetings of the collegiate body. The Federal Council, as a collective body, is the Swiss head of state.[footnoteRef:7] [7: http://www.thomasfleiner.ch/files/categories/IntensivkursII/Switzerlandg3.pdf]

In fact, the diversity of Switzerland probably would not permit a head of state constituted by a single person. The Swiss system avoids the risk of concentrating power in the hands of a strong president, while the collegiate character of the Federal Council corresponds to the needs of a multicultural society. Many observers note that, in consequence, there is little continuity of purpose and that government action very often lacks coherence.

Legislative

Like most federal countries, Switzerland has a two-chamber federal parliament with one chamber representing the population and one chamber representing the federal states. The National Council has 200 members and is elected every four years according to a specially sophisticated version of the proportional election system allowing for the proportional representation of political parties as well as for the selection of personalities. Every of the 26 cantons is a constituency, so the proportional representation is not absolute: a few small cantons may only send one deputee, while the largest cantons have up to about 30 seats. The Council of States has 46 members, two per full and one per half canton. The cantons may decide themselves in their cantonal constitution who is going to represent them and how long the period of office is. In most cantons the members of the Council of States are elected in a majority election on the same day the election for the National Council takes place.[footnoteRef:8] [8: http://direct-democracy.geschichte-schweiz.ch/switzerlands-political-systems.html]

Judicial

With regard to the Judiciary, Switzerland has followed the concept of federalism within the civil law system. Accordingly, unlike in the US and in some other common law federal countries, there is no dualism between the federal and the state judiciary. There is in Switzerland only one judiciary which has the power to apply federal and cantonal law. Unlike in Belgium where the Judiciary is centralized, the main pillar of the Swiss judiciary are the cantonal courts organized by the cantons. The cantonal courts have the power to interpret and to apply federal law as well as the respective cantonal law. The Federal Supreme Court has mainly an appellate function with regard to the cantonal courts.[footnoteRef:9] [9: Fleiner, Thomas. The Current Situation of Federalism in Switzerland]

Cantonal Courts

Civil law, criminal law, and even federal administrative law implemented by cantonal legislation are first controlled by cantonal courts. The cantons have the constitutional power and responsibility to implement federal law8. With regard to criminal law, it is the cantonal prosecutor who has to prosecute persons suspected of having violated criminal law and to charge them before the cantonal judge for having breached criminal law.

However, the judicial system of Switzerland has its flaw because the Federal Supreme Court currently has no power to review the constitutionality of federal legislation. Moreover, in general it has no power to review acts of the federal parliament and of the federal council (executive). The Federal Supreme Court of Switzerland cannot review federal statutes which might violate constitutionally guaranteed cantonal powers. There is no court supervision which could impede the federal legislator intervening in constitutionally guaranteed cantonal sovereignty. However, Swiss history has shown that the popular power to ask for a referendum with regard to federal legislation has had an important impact in preventing the Swiss legislator from violating cantonal powers guaranteed by the constitution.[footnoteRef:10] [10: Ibid]