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.1
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.2

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.3
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.4

1
2
3
4

https://www.ch.ch/en/swiss-federalism/
Ibid
Koller, Arnold, Introduction to the Swiss Model of Federalism
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 municipalities
7.
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.5
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.6
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
5 Fleiner, Thomas. The Current Situation of Federalism in
Switzerland
6 Ibid

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.7

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 fouryear 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.8

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 in 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

7 Ibid
8http://www.thomasfleiner.ch/files/categories/IntensivkursII/Switzerla
ndg3.pdf

 Legislative
Like most federal countries, Switzerland has a two-chamber federal
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.9

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.10

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
9 http://direct-democracy.geschichte-schweiz.ch/switzerlandspolitical-systems.html
10 Fleiner, Thomas. The Current Situation of Federalism in
Switzerland

with regard to federal legislation has had an important impact in preventing the Swiss
legislator from violating cantonal powers guaranteed by the constitution.11

11 Ibid