Federal Parliament 277

(b) The right of election or confirmation, as amendment of the Swiss Constitution. If both
regards other officers, may be vested with the Houses agree to amend the Constitution,
the Assembly, by Federal Council. either wholly or partially, the proposed
(c) It supervises the activities of the Civil revision is submitted to the people for their
Service. acceptance or rejection. In case the Houses
(d) It decides administrative disputes and disagree with each other, the matter is referred

conflicts of jurisdiction between federal to the vote of the people for their decision
officials. whether they need such a revision or not. If
the majority of the Swiss vote for the revision,
(e) It determines salaries and allowances of
new elections to the Federal Assembly take
members of federal departments and of
place. The newly constituted Houses pass the
Federal Chancellory and also the
requisite amendment which is finally placed
establishment of permanent federal offices
before the people and the Cantons for their
and their salaries.
approval.
(f) It controls Federal Army.
The amendment is effected through
(g) It declares war and concludes peace. initiative too. Here too, Assembly plays a
(h) It ratifies alliances and treaties. The treaties conspicuous part.
concluded by the Cantons between
themselves or with the foreign States are General Supervision over Federal
to be ratified by the Federal Assembly Administration
provided that such cantonal treaties are The Federal Assembly exercises general
referred to the Federal Assembly either on supervision over the federal administration. It
the appeal by the Federal Council or issues instructions to the Federal Council in the
another Canton. form of postulates. The members of the
(i) It supervises even the Federal Tribunal. Assembly can elicit information from the
executive through “Interpellations”. Besides, the
Judicial Powers members of the National Council can also ask
Though the judicial powers of the Federal “minor questions” from the Federal Councillor
Assembly were considerably curtailed by the who are supposed to give written answers.
Constitutional Revision of 1874, yet they are Keeping in view these multifarious powers
quite significant: of the Federal Assembly, Zurcher remarked,
(a) The judges of the Federal Tribunal are “The makers of the Swiss Constitution
elected by the Federal Assembly. conferred upon the Federal Assembly all kinds
(b) It also hears appeals against the Federal of authority, legislative, executive and even
Council’s decisions on administrative judicial.” But a critical analysis of these powers
disputes. reveals that the legislature neither controls the
(c) It deals with the conflicts of jurisdiction
legislation nor the purse. It does not have a
between different federal authorities. hold on the executive either as it cannot oust
it. Thus the powers conferred upon the
(d) It exercises prerogative of pardon and
Assembly are more nominal than real. Codding
amnesty. Pardon is granted in joint session
correctly remarks, “The Federal Assembly has
of the two Houses, whereas amnesty is
been reduced to a certain extent to the position of
granted by two Chambers meeting
an advisory body with the electorate exercising the
separately.
real decision-making power.”?
Power to Amend the Constitution However, the legislative, executive, judicial
As already discussed, both the Chambers of and constitution-amending functions of the
the Federal Assembly participate in the Swiss Legislature make it crystal clear that the
 278 World Constitutions—Switzerland

principle of Separation of Powers is not final power of accepting or rejecting a bill.

embodied in the Swiss Constitution. Secondly,
the Assembly apparently seems to be a
powerful body which in fact it is not. The
adoption of devices like Referendum and
Initiative has enabled the people to exercise
They can even ask the Assembly to pass a bill
which it has ignored. Thirdly, the Assembly
cannot oust the Councillor by a vote of no-
confidence. Still its miscellaneous powers
apparently seem to be impressive.

References

1. Rappard, D.E., The Government of Switzerland, p.56. 3. Brook R.C., Government and Politics of Switzerland, p.96.
2. Hughes, Christopher, The Federal Constitution of 4. Article 165.
Switzerland, p. 104. 5. Codding G.A., The Federal Government of Switzerland,
p.92.
 4
The Swiss Executive
(Federal Council)

Federal Council stands outside party, is not chosen to do party work, does not determine party
policy yet is not wholly without some party colour.

—Bryce

f all the political institutions of Confederation in the Federal Council—a plural

Switzerland, the Swiss executive is body. It consists of seven members who enjoy
not only most characteristically Swiss parity in powers and possess co-equal
but also is a unique institution unparalleled in authority. None of them enjoys a position
the Constitutions of the world. In the words of analogous to that of the American President
C F Strong, “No executive system in the world or the British Prime Minister. In the words of
is so deserving our attention as that of Huber, “The Collegial system is the traditional
Switzerland for the founders of the Swiss form of Government and the only one in use in
Constitution of 1848 and 1874 would appear Switzerland.” Bryce also repeats the same view
to have succeeded in a project which has when he says, “In no other modern Republic,
baffled the ingenuity of all previous is executive power entrusted to a Council
statesmanship and especially that of France, instead of to a man.” The framers of the Swiss
namely to combine the merits and exclude the Constitution considered the American
defects of both the parliamentary and non- Presidential system contrary to the ideas and
parliamentary executive system.” Codding habits of the Swiss because it was fraught
rightly remarked,” The unique institution of with the danger of getting dictatorial.
this unique little country is without doubt, the Moreover, this type of executive was in
Federal Council, the Swiss Federal Executives.’ consonance with the traditions long established
in the Cantons. The Swiss people are in the
PEcuLIARITIES OF Swiss CouNCcIL words of Mason, “attached to Government by
Councils and opposed to personal eminence.”?
Some of the peculiarities of the Swiss executive
are worth mentioning as they establish its Lengthy Tenure
uniqueness. The following are its peculiarities:
Lengthy tenure of the Swiss Councillors which
has resulted into stability of the executive is
A Plural Executive
also an important feature of the Swiss Federal
Unlike that of UK, USA and France where the
Executive. Though the Councillors are elected
supreme executive power is vested with the
for a period of four years only by both the
single individual, the Swiss Constitution vests
Houses of the Federal Assembly, yet in actual
the superior executive authority of the
 280 World Constitutions—Switzerland

fact, they enjoy much longer tenure because of chosen to do party work, does not determine policy,
certain reasons—(a) Swiss deem it irrational yet it is not wholly without some party colour.”
to remove a valuable administrator; Professor In a party Government, the entire executive
Dicey compares the Swiss Federal Council is drawn from the same party if it holds
with the board of directors of a joint stock majority in the legislature. Political
company who are not ordinarily ousted if homogeneity is considered as the most
they continue performing their duties fundamental feature of a parliamentary
conscientiously; (b) The choice is very limited. Government; hence, the executive is apt to be
Invariably, they are chosen from the Federal chosen from the majority party. In multiple
Assembly, which is not a numerous body. party systems, like that of France, the executive
Apart from this, the Constitution lays down is drawn from the leaders of the various parties
that not more than one member is to be chosen who join hands to form a coalition
from each Canton. Moreover, the Cantons of Government. In both these countries, party
Zurich, Vaud and Berne are apt to be affiliations keep a person in the ministerial
represented by usage. Thus it is obvious that seat. However, in Switzerland, the Swiss
the range of selection is considerably limited; Council constitutes a heterogeneous group of
(c) Non-partisan character also enables them politicians who are chosen for their capacity
to enjoy lengthy tenure; (d) finally the office as administrators. The Swiss do not opt for
itself does not carry fabulous salary. The other skillful orators or shrewd tacticians. According
amenities are also meager. The Chairman of to Bryce, “It is administrative skill, mental grasp,
the Federal Council gets additional allowance good sense, tact and temper that recommend a
for meeting entertainment costs for the year of candidate.” Besides this, the Swiss Council
his holding office of Chairman. It is told of a neither formulates nor controls the policy of
Federal Councillor that when he was asked the Government. It simply conducts
why he travelled in third class, he said, administration or advises the Federal Assembly
“Because there is no fourth”. Swiss people on legislation in administrative capacity. As
don’t want public men to become ostentatious such, it is deprived of the functions which
or glamorous. They lead a simple life without induce a parliamentary executive to dabble in
any statesmanly pomp and show like active politics. It has accepted gracefully the
Americans or Britishers. position ofa business body subservient to the
On account of the above reasons, the federal legislature. Its members have, therefore,
average tenure of the Swiss Councillor is more ceased to be staunch adherents of one party or
than ten years. Some of the Councillors like the other. They work as a team of
Signor Gruesppe Motta, Naeff, Welti and Dr administrators exhibiting a spirit of
Phillippe Etter have held the office for twenty- compromise and mutual collaboration in the
nine, twenty-seven, twenty-five and twenty- interest of public good. This has enabled them
three years, respectively. to wield considerable influence. In the words
of Lowell, the influence of the Federal
Non-Partisan Councillor “depends to a great extent on the
As already said above, non-partisanship of confidence in its impartiality and hence, its position
the Councillor which has led to the stability of is fortified by anything that tends to strengthen
the executive, is a remarkable feature of the and perpetuate its non-partisan character’.; Bryce
Swiss Council. Though the Councillors belong rightly emphasises, “in no other free country has
to the various political parties, yet they do not the working executive so little to do with party
function on party basis. According to Bryce, politics”.
“The Federal Council stands outside party, is not

PECULIAR PosITION OF THE CHAIRMAN
THE CounciL
The Chairman of the Swiss Council holds a
peculiar position. One of the seven Councillors
is elected by the Federal Assembly as the
Chairman for a period of one year only. The
Chairmanship of the Council, in fact,
amongst the Councillor. The Chairman of the
Council is designated as the President of the
Swiss Confederation—a courtesy title.
in fact, not even first among equals as he is
one amongst them after a year. He does not
enjoy any special powers. He does however,
sit at the head of the table when the Council
meets as an executive. He does exercise a
casting vote in case of a tie. Some of the
ceremonial functions are also performed by
him. He presides over ceremonial occasions.
He receives rulers and ministers of the other
States since such a formal function cannot be
entrusted to a group of ministers. He heads a
department like the other Councillors. He
represents the country at home and abroad.
He has been equipped with very limited
emergency and supervisory powers and
responsibility for the Federal Chancellory
according to the law on the organisation of
federal administration of 1914. Dr. Munro has
very well portrayed the authority of the
Chairman of the Swiss Council when
“He is merely the titular head of the
Confederation and represents it on occasions
of ceremony. But by custom, he has become a
sort of general overseer, responsible for
respecting the work of the various
administrative departments and the Council
may authorise him to act in its name. This is
sometimes done in emergencies but no act
that the President performs in this capacity is
valid until approved by the Council. He is in
no sense a Prime Minister ... His legal powers are
virtually the same as those of other Councillors
although he sits at the head of the table.’*
Dr. Munro is justified in holding the
opinion that the Chairman of the Swiss Council
The Swiss Executive (Federal Council) 281
OF is far inferior to the Prime Minister of England
who is the creator, the preserver and the
destroyer of the Cabinet and who is described
as the “keystone of the Cabinet arch”. We may
add that his position and powers stand no
comparison with the American President who
apart from acting as the “boss over his (kitchen)
rotates
Cabinet” and possessing vast executive
authority, exercises veto power over the
legislation passed by the Congress. William
He is,
Rappard has well said, “In short, his office has
no true national significance, no special privileges
nor even any particular influence.” He does not
get an official car. Nor does he get a palatial
house to live in. He draws additional
entertainment allowance for holding the
Presidential office. However, the salaries and
allowances of the Councillors or Chairman are
not comparable with their counterparts in UK,
USA, France or India. Their salaries and
allowances are variable to their advantage from
time to time. Relative insignificance of this
office has been very well described by John
Brown in the words, “The Swiss citizens are apt
to forget who their President is just now, although
they are likely to know by name the majority of the
members of the Federal Council.”> Lowell
describes him simply as the Chairman of the
executive Committee of the nation who tries
to keep himself informed of what his
he says,
colleagues are doing and performs merely
ceremonial duties of titular head of the State.
Rappard rightly opines that “his office has no
true national significance. It confers no special
privileges, nor even any particular influence.”®
Neither Parliamentary nor Presidential
The Swiss executive is neither parliamentary
nor presidential in character. It differs radically
from both of them. In fact, it avoids the defects
of both and combines the advantages of both
of these systems. In the words of Bryce, “The
Council is not a Cabinet like that of Britain, and
the countries which have imitated her Cabinet
system for it does not lead the legislature, and is
not displaceable thereby. Neither is it independent
282 World Constitutions—Switzerland

of the legislature, like the executive of the United the individual responsibility of the Councillor
States and of other Republics which have borrowed to the legislature is ever sought.
therefrom the so-called ‘Presidential System’. As already discussed, the Chairman of the
Federal Council too is hardly analogous to the
Not a Parliamentary Executive Prime Minister of Great Britain. In fact, there
It is in fact a misnomer to call Swiss Council a is no comparison at all. The Prime Minister is
parliamentary executive. A parliamentary the creator, the preserver and the destroyer of
executive exists in a country if some of the the Cabinet. He is the “keystone of the Cabinet
essential requirements of this form of arch”, “a moon amongst the lesser stars”, “sun
Government also are embodied in it. Two around whom the rest of the Ministers revolve
heads—nominal and real, responsibility of the like planets”. But the Chairman of the Federal
executive to the legislature, political Council is simply “a first among equals”. He
homogeneity, individual and collective is merely a “Chairman” of the Council vested
responsibility and leadership of the Prime with ceremonial functions. The Council is not
Minister are the cardinal features of a Cabinet his creation. Nor can he throw out any of the
(parliamentary) form of Government. British Councillors at his discretion. They serve their
Cabinet is the example of such a form of the term so long as they retain their administrative
Government. In Switzerland, on the other capabilities. Lowell has well observed about
hand, the members of the Federal Council are the Chairman. “He is simply the Chairman of
not responsible to the legislature. Immediately the Executive Committee of the nation and as
after their election as the Councillor, they resign such he tries to keep himself informed of what
the membership of the Swiss legislature. They his colleagues are doing and performs the
do however, sit in the legislature, participate ceremonial duties of the titular head of the
in the debates actively but do not possess the State.” Neither the Chairman nor any of his
right to vote in the House. They cannot be councellor can be categorised as the head of
ousted by a vote of no-confidence. the State, unlike UK where the King is the
Since the Councillors are drawn from head of the State though Prime Minister is the
various parties, hence, the question of party head of the Government.
solidarity entailing political homogeneity does Thus, the Federal Council lacks the
not arise. In fact, the Councillors are entrusted characteristics of a Cabinet form of
with the executive authority because of their Government. The only similarity with the
administrative skill, mental grasp and common Cabinet system is that the Councillors sit in
sense and not because of their political standing the Houses and participate in their
in one party or the other. They are often seen deliberations.
crossing swords against each other on the
floor of the House. The principle of “sink and Not a Presidential Executive
swim” together can hardly work under such Stability of the Swiss executive and its non-
circumstances. Ousting a Minister (Councillor) displaceability by the legislature, lack of its
would not affect the entire Council. Hence, power of dissolving the legislature, and non-
they are not collectively responsible to the membership of the Assembly, after its election
House. as Federal Council, are some of the similarities
Defeat of a particular measure would not between the American Presidential Executive
lead to the resignation of a Council as it is not and the Swiss Executive.
considered a matter of prestige for them. They The dissimilarities of the two executives
are used to pocketing their pride on such are no less prominent. The Federal Council
occasions. Hence, neither the collective nor unlike that of American Presidential Executive
 The Swiss Executive (Federal Council) 283

does not constitute a separate branch of the the United States and of other Republics which
Government. The Councillors unlike the have borrowed therefrom the so-called Presidential
members of the American Cabinet participate system.”
in the deliberations of the legislature though We can, therefore, conclude that the Swiss
they do not possess the right to vote. The executive is neither presidential nor
theory of Separation of Powers is the cardinal parliamentary in character. It combines the
feature of the American Governmental system, advantages of both the systems, viz. (1) The
but the Swiss Council’s active participation in permanence and stability leading to the
the proceedings of the Assembly is a clear continuity of policy; the merits of presidential
violation of the theory. None in the Swiss type of Government are ingrained in it. (2)
Council holds an analogous position to that of Harmony between the executive and the
the American President. The American legislature said to be the chief merit of
President is the head of the Government as parliamentary Government is also discernible
well as that of the State. As such the Chairman in it. (3) Its non-partisan character which
of the Swiss Council can hardly be compared enables it to play an effective role as an
with the President of USA. The American administrative body is an additional
President constitutes his Cabinet which is advantage, and differentiates it from both of
known as his kitchen Cabinet or his family these prevailing governmental systems. Bryce
but the Chairman of the Council does not emphasises this version. Thus, the Swiss
possess any such powers. The Swiss Council executive is known for its uniqueness. It is a
is elected by the Federal Assembly unlike that blend of merits of both the systems and unlike
of the President of USA who is elected by a both, it is non-partisan in character. C. F.
specially constituted electoral college. By and Strong rightly observes “the Swiss Executive is
large, the American executive works quite unique among the constitutional systems of
independently in administrative matters. A the world.”
few indirect congressional checks on the
powers of the President do however, exist. In Peculiar Relations between the Federal
Switzerland on the other hand, the Federal Council and Federal Assembly
Council functions in close harmony with the The uniqueness of the Swiss executive lies
legislature and is positively and directly also in its peculiar relations with the Federal
accountable to it. Assembly. It is not independent of the
Besides, the American President possesses legislature, as is the case in the USA where the
the veto power on the bills passed by the theory of Separation of Powers prevails. It is
Congress but no such power is vested with not so dependent upon the legislature as is the
the Federal Council or its Chairman. Instead case in the UK where the members of the
the Swiss citizens possess the veto power over Cabinet are the members of the Parliament as
the bills as they are to be referred to them for well and remain in power so long as they hold
their final verdict. the confidence of the House of Commons. In
It is, thus, obvious that unlike that of Switzerland, a mid-course has been adopted.
presidential executive of USA, the Swiss The Federal Councillors are not to be members
Federal Council works in close collaboration of either House of the Federal Assembly. If
with the legislature. It has been very correctly they happen to be the members at the time of
described as the “Executive Committee of the election, they must vacate their seats after
Swiss Parliament.” While comparing the Swiss getting elected to the Federal Council. They
Council with the American Presidential system, do not possess the right to vote though they
Bryce has so observed “ . Neither is it sit in the Assembly and participate in its
independent of the legislature like the executive of proceedings. They cannot be ousted from office
 284 World Constitutions—Switzerland

through a vote of no-confidence. When the sound common sense. On the other hand,
Assembly refuses to pass a bill initiated by the modern legislation is often complicated. Hence,
Council or effects many changes in it, the the Federal Assembly is not competent to deal
Council does not make it a prestige issue. It with it. It leads to the delegation of legislative
obeys the direction of the legislature with initiative to these Councillors and subsequent
good grace. Dr. Munro has correctly observed: enhancement of their powers and prestige.
“If the Councillors find themselves outvoted on Even as regards ordinary legislation, the
any matter, they do not resign, as in France or Federal Council is “a guide as well as instrument
England; they merely pocket their pride and obey and often suggests as well as drafts measure”.°
the will of the legislative bodies with as good grace An analytical study of the Swiss
as they can muster.”’ constitutional history during the present
In fact, the Federal Assembly takes the century makes it crystal clear that the powers
Federal Council as a “sort of glorified of the Federal Council have steadily increased.
legislative drafting bureau”. The policy The introduction of proportional representation
emanates originally and finally from the has turned the Federal Assembly into an arena
Assembly. The Council can not have Initiative. of political higgling and haggling between
Previous sanction of the Assembly or its multiple groups and parties that find place in
subsequent ratification is essential when the it. Thus, Assembly’s prestige is on the wane
Council exercises the prerogatives relating to and that of Council on the ascent. The two
foreign affairs, armed forces or ordinary World Wars and economic depression of 1930s
conduct of public administration. The also led to the enhancement of the powers of
Assembly may delegate full powers to the the Federal Council. In fact, the Federal
Council in emergency. It may also issue Assembly itself delegated ‘blanket’ authority
directions indicating the manner in which the to the Council to tide over the economic crisis
Council’s functions are to be discharged. The and maintain Switzerland’s traditional
Council is expected to send annual report to it neutrality during wars. The powers once
and finally get it passed by it. The Assembly delegated were not withdrawn. Owing to the
may ask for a special report from the Council reasons mentioned earlier the Federal Council
which must be supplied unhesitatingly. according to André “gradually came to wield a
Professor Dicey has very aptly described the quasi-absolute power’. In other words, it has
relation between the Federal Council and the ceased to be a subservient body.
Assembly in these words: “The Council is
expected to carry out and does carry out, the policy Organisation and Functions of the
of the Assembly and ultimately the policy of the Council
nation, just as a good man of business is expected The Swiss Council, as already stated, consists
to carry out the order of his employer.”® of seven members who are chosen by the
But with all this, we should not carry the Federal Assembly in a joint session of the two
impression that the Federal Council is a mere Houses for a period of four years. Though it is
servant of the Assembly. It may be a legal not required by the Constitution, the Federal
truth but is certainly a political untruth. Councillors are always elected from the Federal
According to Bryce, “The Federal Council Assembly. However, they tender resignation
exerts in practice almost as much authority as from the membership of the Assembly, as
do English and more than do some French soon as they are elected Federal Councillors.
Cabinets so that it may be said to lead as well According to Article 96 of the Constitution,
as follow.” The Federal Council is a body of not more than one person is to be elected as a
experts who as already said are equipped Councillor from each Canton. It is customary
with administrative skill, mental grasp and to have one member each from the Cantons of
 The Swiss Executive (Federal Council) 285

Zurich, Berne and Vaud. All the three bills and in many cases have decisive voice.
nationalities German, French and Italian are (d) They furnish an opinion on the bills
accorded representation in the Council in the introduced by the private members, on a
ratio of four, two, and one. reference made to them. In fact, no bill comes
Attempts to resort to direct election have before the legislature unless it is first
been twice made through Referendum, but considered by an appropriate Councillor.
they have proved unsuccessful. People of It may however, be stated that unlike that
Switzerland have opposed direct election of of Great Britain where a defeat on a bill leads
the Councillors on the grounds that popular to resignation of a ministry, in Switzerland,
elections would accentuate party factions, the Councillors pocket the insult if the measure
exercise baneful influence on the range of initiated by them is defeated. Dr. Munro has
policies and effect radical changes in the very well described this fact: “The Swiss Federal
character of public life. Councillors is like a lawyer or an architect, in that
One of the members of the Council is his advice is sought and usually heeded, but he is
annually elected as the Chairman while not supposed to throw up his job when his employer
another is chosen as Vice-Chairman. insists on having something done differently.”
Conventionally, the Chairman of the Federal
Financial
Council is not eligible for election for two
consecutive years and the Vice-Chairman The Federal Council administers federal
succeeds the outgoing Chairman. By another finance as well. As such, (a) It prepares the
convention, Chairmanship and _ Vice-
annual budget and presents it to the Federal
Chairmanship rotates amongst the Councillors Assembly, (b) It has to see that the budget is
in order of seniority. passed by the Assembly, (c) It collects the
revenues and supervises the expenditure
appropriated by the legislature, (d) It manages,
Functions OF FeperRAL Councit
the national undertakings such as railways.
The functions of the Federal Council can be
Executive
enumerated under four heads— legislative,
executive, financial and judicial. The Constitution vests the supreme executive
power in the Federal Council. As such, it
Legislative exercises the following executive powers: (a)
In the legislative field, the Federal Council It is responsible for the enforcement of laws
plays quite an important role, despite the fact and ordinances passed by the federal
that the Councillors have to resign the legislature; (b) It conducts the foreign affairs
membership of the Assembly after election to of the Confederation; (c) It maintains internal
the Council. Its legislative powers are as peace, law and order; (d) It appoints all officers
follows: (a) They prepare and initiate measures of the Confederation except those who are
either on their own accord or at the request of appointed by the Federal Assembly in a joint
the Federal Assembly and then pilot them session; (e) It carries on the administration of
through the Houses. (b) Though they do not federal affairs in conformity with the laws of
have vote in the Houses yet they participate in the Federation; (f) It executes the decisions of
the proceedings of the Houses and reply to the Federal Tribunal and arbitrates the awards
the questions. (c) They attend the meetings of on disputes between the Cantons; (g) It protects
the various parliamentary Committees which the observance of cantonal constitutions; (h) It
examine the bills brought before the legislature exercises supervisory control over the cantonal
and due to their common sense and mental Governments, for securing the enforcement of
grasp exercise considerable influence on the federal law; (i) It examines the treaties which
 286 World Constitutions—Switzerland

the Cantons enter into with each other or with There has, thus, been a steady growth of
foreign countries and approves them if it the powers of the Federal Council. Keeping in
deems fit; (j) It safeguards the external interests view the ever-growing powers of the Federal
of the Confederation, ensures the external Council, Lowell correctly remarked that the
safety of the country and maintenance of her Federal Council “may almost be regarded as the
independence and neutrality; (k) During the mainspring and is certainly the balance wheel of
recess of the Federal Assembly, if emergency the national Government”.?
arises it can call out troops for meeting it. If Though, theoretically and constitutionally
the number of troops exceeds two thousand the Federal Council is subservient to the
men or if they remain mobilised for more than Federal Assembly. However, in reality the
three weeks, the Council must convene session Federal Council enjoys the dominant position.
of the Assembly immediately; (1) The Council The Bills initiated by the Federal Council are
controls the Federal Army and all its branches rarely rejected. The question haunts the
of administration; (m) It examines the laws members of the Federal Assembly “when a
and ordinances of the Cantons that have to be measure is to be ultimately referred to the
submitted to it for its approval and supervises people for their vote why should the legislature
the branches of cantonal administration where take upon itself the responsibility of rejecting
such supervision is entrusted to it; (n) It a measure of the Council?” In fact, the
submits regularly a report on its work in the Assembly itself has been delegating more and
sphere of domestic and foreign affairs to the more powers to the Federal Council. Hence,
Federal Assembly at each session and makes with the elapse of time, Federal Council and
special report on other occasions if required to not Assembly has been in the focus in the
do so. Nations’ eyes. It has stated acting both as a
guide as well as instrument in Swiss Political
Emergency Powers
System. The lengthy tenure of the Councillors
Its emergency powers have also not been less their non-remove ability from the office by a
significant. The powers given to it by the vote of no confidence by the National
Assembly during wars of 1914 and 1939 made Assembly has added to their prestige and
the Council the sole legislature and put a curb status. The Federal Council has, thus, become
on Referendum. Codding describes it as “one a beacon-light for the Assembly and also a
of the most sweeping grant of powers to any controlling device.
democratic executive whose country was not
actually engaged in the war”."! The Civil Service in Switzerland
Despite the increase in the Central
Judicial
Government’s activities and a trend towards
The Federal Council is equipped with powers centralisation, the Swiss civil service is not a
of judicial nature as well, though some of its numerous body. It is because of the fact that
powers were drastically curtailed in 1914. Since the federal measures are executed by the local
administrative courts do not exist in authorities. The federal officials work in the
Switzerland, certain administrative cases, i.e.,
Cantons only in the post office, railways and
the cases arising from the public actions of certain special branches of administration. The
federal officials, are brought before it. It
two global wars did however, add to their
possesses appellate jurisdiction over decisions strength.
of the cantonal Governments in cases relating
These federal officials, (except a few who
to discrimination in elementary schools,
are appointed by the Federal Assembly), are
differences arising out of treaties relating to
appointed by the Federal Council and are
trade, military taxation, customs, cantonal
dismissed by it for any dereliction of duty.
elections, etc.
 The Swiss Executive (Federal Council) 287

Higher posts are filled up for a period of three The Federal Secretariat (Chancellory)
years, in the first instance, though they are The Federal Chancellory was established in
subject to further extension. In fact, they are 1931, with a Chancellor as its head. The
more or less permanent. Appointments and Chancellor is elected by the Federal Assembly
dismissals are not made out of sheer political for a period of four years, though in fact, he
considerations. Salaries of services in continues in office until he retires. The
Switzerland are very meagre. Hence, very few Chancellory functions under the
Swiss opt for civil service. Lower appointments superintendence of the Swiss President and
are made on competitive basis. Railway the ultimate supervision of the Federal
officials and other lower railway employees Assembly. The Chancellor is responsible for
are appointed by the federal railway the supervision of shorthands, and translation:
administration. keeping records, organising elections,
Federal officials are not eligible for election Referendum and Initiative, counter-signing of
to the federal legislature and the cantonal federal Acts and the organisation of federal
officials to the cantonal legislatures. They are elections. Apart from these functions, he
however, allowed to canvass during elections performs the duties of the clerkship of the
and take part in politics. Surprisingly, this Federal Council and enjoys the office of the
unusual practice has not led to the emergence “clerk at the table” of the two Houses and in
of evils as politics in Switzerland is a joint session. He is the head of the civil
businesslike. service as well.

References

Hans, Huber, How Switzerland is Governed, p.55. 7. Munro, op. cit, p. 783.
_

2. Mason, John Brown, Switzerland and Foreign 8. Dicey, The Law of Constitution, p. 611.
Government, edited by F.M. Marx, p. 873. 9. Bryce, Modern Democracies, Vol. I, p. 97.
3. Lowell, A.L., Government and Politics in Continental 10.Munro, op. cit, p. 743.
Europe, pp.202-03. 11.Codding, C.A., The Federal Government of
4. Munro, Governments of Europe, pp.741-42. Switzerland, p. 85.
Mason John, Brown, op.cit, p.374. 12. Lowell, A.L., op. cit, Vol. I, p. 378.
“

6. Rappard, William, The Government of Switzerland,

p.379.
 S
The Federal Judiciary

“To endow it with the right of disavowing federal statutes would therefore be to impose on a
much weaker court a much heavier burden than that under the American judiciary sometimes
seems to be staggering today.
—W E Rappard

The Federal Tribunal to thirteen. At present however, the number

he Federal Tribunal is the youngest of judges and alternates is thirty and fifteen,
of the three organs of the Swiss Federal respectively. The judges as well as alternates
Government since it was created by the are elected by both the Houses of the Federal
Constitution of 1874. A court for the Assembly, meeting in a joint session for a
administration of justice in the federal sphere period of six years. In actual practice, they
did however, exist even earlier but it was not serve as judges till they wish to hold to the
vested with the power of resolving conflicts judicial office. The Constitution does not
between the Confederation and the Cantons prescribe any judicial qualifications for the
or the Cantons themselves. Federal Council judges. Anybody who is eligible for contesting
and Federal Assembly heard such cases and election for the National Council is allowed to
decided them. The Constitution of 1874 did contest for a seat in the Federal Tribunal.
not effect radical changes in the powers and According to the Constitution, the Federal
jurisdiction of the existing court. But in actual Assembly while electing judges and alternates
practice its powers were to some extent (deputy judges) must see that all the three
increased. The subsequent constitutional official languages are represented in it. The
amendments further enhanced its powers. The court elects a President and Vice-President for
court was first assembled in 1885. It is termed a period of two years. They are not re-eligible
as the youngest and weakest link of the Swiss immediately after the completion of their
Federation. terms. It may be pointed out that election of
the judges has, in no way, impaired the
Composition and Organisation independence of judiciary in Switzerland.
The Constitution makes it clear that the Generally legal luminaries have been elected
organisation of the Federal Tribunal, the as the judges. However, judges have not
number of its members and deputy members, proved puppets in the hands of the Assembly.
their term of office and pay will be fixed up Bryce has aptly observed, “While political
by the law. The law fixed the number of predilections may sometimes be present, it is
judges between twenty-six and twenty-eight not alleged that they have injured the quality
and the number of alternates between eleven of the bench any more than the occasional
 The Federal Judiciary 289

action of the influences tells on the general Its Working

confidence felt in England and (as respects the The Tribunal is divided into three divisions,
federal courts) in the United States in the each consisting of at least eight judges for
highest courts of those countries.” trying cases pertaining to civil laws and public
laws. Criminal cases dealing with treason are
Their Salaries, etc
decided by the Tribunal with the assistance of
The President gets more salary than the other jury which consists of twelve members. Each
judges. The Vice-President also gets a bit more member of the jury is given a daily allowance
as additional payment. The deputy judges are of fr 15. Records of the court are maintained in
not paid any salary. They get allowances for three languages.
each working day. The judges get pension
after sixty years of age provided that they It’s Jurisdiction
have served at least for ten years. Pensions The Federal Tribunal is vested with both
vary from forty to sixty per cent of their original and appellate jurisdiction. Its original
salary. Their salaries and pension are meagre jurisdiction extends to civil, criminal,
as compared with those given to the judges in administrative and constitutional cases.
England and America. Their salaries and
allowances are variable to their ad vantage from Original Jurisdiction
time to time.
The Federal Tribunal is the only national (1) Civil Cases
court in the country. It does not have its (i) The civil jurisdiction of the Federal
branches in the Cantons, unlike that of Tribunal extends to cases involving
American Supreme Court which has its conflicts between the Confederation and
branches in the states. The court is however, the Cantons or between the Cantons
divided into assizes for criminal cases. The themselves. It hears cases where a
Tribunal has no staff for the execution of its private person or corporation sues the
awards. The Federal Council itself executes Confederation or a Canton or where the
the decisions of the court. This is unlike that Confederation or a Canton sues a private
of the American Supreme Court which person or corporation if the object of
maintains its own staff for the execution of its the dispute is of such importance as
awards. shall be determined by the federal
legislation, and if such corporations or
Seat of the Tribunal persons are plaintiffs.
The Tribunal has been established at (ii) It takes up cases relating to loss of
Lausanne—the capital of Vaud which is a nationality and also disputes upon the
French-speaking Canton. It was in fact a right of citizenship of a commune.
graceful concession to the French-speaking (ili) It also decides cases between individuals
people who were not happy over the where the amount in litigation exceeds
establishment of the Federal Council and fr 10,000, and when the two parties
Federal Assembly at Berne—a German- request to fall under its jurisdiction.
speaking Canton. Moreover, they thought it (iv) It has been empowered by Article 114
advisable to keep the judiciary away from the to ensure the uniform application of
political atmosphere of Berne where the laws concerning commerce and
Federal Council and Federal Assembly are transactions affecting moveable
housed. property, suits for debt and bankruptcy,
protection of copyrights and industrial
invention.
 290 World Constitutions—Switzerland

(v) A general power on the Confederation (i) Conflicts of competence between federal
to legislate on any field of civil law has authorities on the one hand and cantonal
been conferred which ipso facto enlarges authorities on the other hand. It upholds
the civil jurisdiction of the federal Court. federal Constitution against the cantonal,
and the cantonal constitutions against
(2) Criminal Cases
ordinary laws and decrees of Cantons.
As regards the original criminal jurisdiction of (ii) Disputes between Cantons in matters of
the Court it tries the following cases: public law.
(i) Cases of high treason, rebellion or
ii) Complaints of violation of the
violence against federal authority;
constitutional rights conferred on the
qi) All crimes against law of nations; citizens, both by cantonal and federal
(International Law) Constitutions.
(ili) Political crimes and offences which are (iv) Complaints by individuals of violation
the cause and consequence of disorders, of international treaties and agreements.
necessitating armed federal intervention;
(v) Political crimes and misdemeanours
(iv) Offences committed by officials which are either the cause or
appointed by a Federal authority when consequence of disorders and
brought before the Tribunal by that disturbances necessitating armed federal
authority; intervention.
(v) Cases referred to it by the Cantonal In all the above disputes, the Court applies
Government with the ratification of the laws and decrees adopted by the Assembly
Federal Assembly; and the international treaties approved by the
(vi) Cases such as counterfeiting and voting latter.
frauds.
(4) Administrative Cases
In hearing such cases, the court holds
assizes from time to time at fixed centres in It possesses limited jurisdiction in this field as
the country. In these assizes, only three judges well. Formerly, these cases used to be taken

sit, along with a jury of twelve persons chosen up by the Federal Council. Since 1925, these
from the neighbouring villages. The powers have been transferred to the federal
concurrence of five or six of the jury is essential court. In this capacity, it decides disputes
to convict a person. For exercising criminal relating to the legal competence of public
jurisdiction, the Court sits in four chambers— officials and also hears railway suits and
the Federal Criminal Court, the Court of administrative disputes in matters of taxation.
Accusation, the Court of Cessation and the
Appellate Jurisdiction (Civil Cases)
Extraordinary Court of Cessation of seven
judges. The Federal Court of Accusation The Federal Assembly has equipped the federal
prepares the business for the Federal Criminal court with appellate authority by allowing it
Court and decides if there is prima facie case to hear appeals from the cantonal courts, in
and decides the place of criminal jurisdiction. cases arising under federal laws provided that
they involve a sum of fr 8,000 or more. In the
(3) Constitutional Cases words of Rappard, “This is the most important
The Court possesses jurisdiction over function of the Federal Tribunal because in the
constitutional matters though to a limited absence of inferior federal courts, the unity of civil
extent. jurisprudence could not otherwise be assured in
It takes up the following constitutional Switzerland.”
cases:

As Guardian of the Constitution
The federal courts are generally
of the Constitution. The Swiss
the other hand, possesses limited
review. It is empowered to declare cantonal
law unconstitutional if it conflicts with the
federal Constitution or even cantonal
Constitution. It does however,
Federal Constitution and statutes against
cantonal constitutions and laws. It does even
protect the cantonal Constitution against
cantonal laws and administrative acts. It is
thus evident that the Swiss federal court does
not possess power to declare federal law
unconstitutional if it violates the Constitution.
This right is earmarked for the Federal
Assembly subject to the final verdict of the
people through Referendum. However,
Professor Hans Huber is of the view that the
court will make an effort to interpret laws
whose meaning is not clear in such a manner
as to honour the intent of the Constitution.
Keeping in view the powers of the Swiss
Federal Tribunal it can be concluded that it
can not be compared with the American
Supreme Court or its counterpart in India. Its
hands are clipped as far as the exercise of
judicial review is concerned. In fact, its power
of judicial review is confined to the cantonal
courts. It may not be treated as the guardian
of the Constitution as is the case in USA or
India. It cannot judge the Constitutional
validity of the Federal Laws.
apex court in name, it depends on the Federal
Council to enforce its judgements and reposts
its activities to Assembly.
Comparison of the Federal Tribunal with
the American Supreme Court
A critical, though brief, analysis of the federal
judiciary in both these federal countries would
reveal certain striking points of differences
between the two. The judicial systems of these
two countries differ with regard to the number
of judges, their organisation and working. We
discuss below the differences between the two
on the basis of these points.
The Federal Judiciary 291
(1) The Swiss federal court is the only federal
the guardian court in the country. It does not have its
Tribunal, on branches in the Cantons. The American
judicial Supreme Court on the other hand, has a
set of subordinate courts—both circuit and
district—located throughout the country.
(2) The decisions of the Swiss Tribunal are
uphold the executed by the Federal Council itself. It
does not have separate staff for this
purpose. The American Supreme Court
has a regular federal staff to execute its
decisions.
(3) As regards their appointments, the judges
of the Swiss Tribunals are elected by the
Federal Assembly, in a joint session
whereas the judges of the Supreme Court
of USA are appointed by the President
with the concurrence of the Senate.
(4) The judges of the Swiss Tribunal are
elected for a period of six years whereas
the judges of its counterpart in USA are
appointed for life. The former can be
removed by the Assembly, whereas the
process of impeachment - a cumbersome
procedure, is provided for the removal of
the latter. It may however, be pointed out
that judges of the Swiss Tribunal are also
re-elected and are not removed according
to the whims and the vagaries of the Swiss
legislators. Hence, in actual practice, they
also enjoy long tenure.
(5) The Swiss Tribunal consists of twenty-six
Thus, it is the judges including the President and the
Vice-President and twelve alternates
whereas the American Supreme Court is
composed of nine judges including the
Chief Justice.
(6) The real difference between the two is
significant, as regards their powers. The
Swiss Federal Tribunal possesses limited
power of judicial review unlike that of the
Supreme Court of USA which is the
saviour of the Constitution in the true
sense. The former can declare only cantonal
laws unconstitutional if they are repugnant
to the cantonal and federal Constitutions
 292 World Constitutions—Switzerland
and federal laws. It cannot question the
legality or constitutionality of the federal
statutes. The American Apex court, on
other hand, on account of its vast powers
of judicial review is termed as a third
Chamber. It can declare any law of the
Congress, any executive decree and any
State law as invalid if it contravenes the
Constitution. Hence, it is criticised as super
legislature.
Moreover, the original jurisdiction of
Swiss Federal Tribunal differs considerably
from that of its counterpart in USA.
(7) The Swiss Federal Tribunal has not played
any important role in the development of
the Constitution of the country though the
Supreme Court of the USA has played a
vital role in this direction. In the words of
C J Hughes, “The Constitution is what the
judges say it is.”
As already stated, the Swiss Tribunal
possesses original jurisdiction in civil, criminal,
administrative and constitutional matters.
Besides, cases pertaining to violation of
international treaties and agreements come
before it. It decides conflicts of competence
between federal and cantonal authorities. It
possesses appellate jurisdiction as well.
1. Rappard William, The Government of Switzerland, p.
90.
The American Supreme Court is not
equipped with original jurisdiction of such a
the vast magnitude as has been assigned to the
Swiss Federal Tribunal. In fact, its original
jurisdiction is limited. For instance, it does
not possess original jurisdiction § in
administrative and criminal cases. Nor its civil
jurisdiction extends to the type of cases
entrusted to the Swiss Tribunal.
Keeping in view its limited judicial review
authority, it is a misnomer to designate the
Swiss Federal Tribunal as a Supreme Court.
The proposals to enhance the powers of the
Swiss Federal Tribunal have been rejected in
unequivocal terms. It is apprehended that any
such alteration in the present judicial set-up
would impose a restriction on the ‘sovereignty
of people’ whose verdict on a federal law
decides its fate. As such, the Federal Tribunal
has neither been able to command prestige
nor enjoy independence of the American
Supreme Court. Hence, some scholarly political
scientists portray it as “Supreme Court by
Proxy”. It is nothing something unusual to
term it a weak court subservient to the Federal
Assembly. It is unlike that of the American
Supreme Court about which it is remarked
“We are under the Constitution but the
constitution is what the judges say it is.”
Reference
 6
Direct Democracy in Switzerland

“It is the surest means of discovering the wishes of the people and excellent barometer of the
political atmosphere.”

—Bonjour

witzerland is perhaps the only Landsgemeinde

country in the world where direct In some of the Cantons, like Appenzell, Glaris
democracy still persists. In the rest of and Unterwalden, direct democracy appears
the countries of the world where democracy is in truer colours as the institution of
established, representative form of “Landsgemeinde” is still left alive with its age-
Government exists. The people rule indirectly old traditions and colourful practices. Professor
through their chosen representatives. No Brooks describes the Landsgemeinde as “the
doubt, Swiss democracy also has representative most picturesque and fascinating of all political
legislatures but the latter do not have final say institutions in Switzerland, and perhaps in the
in the legislation. The people through the well- world”. It is a sort of town meeting, which
known devices of Referendum and Initiative consists of citizens of the area. It holds its
take direct part in the legislation of the country. meetings annually under the Presidentship of
The legislature is, thus, relegated to the an annually elected Landamman. The entire
background. In the words of André, in political authority of the community is vested
Switzerland, “democracy remains direct and with it. Attendance in the meeting of this
in delegating their powers the Swiss people popular Assembly is compulsory at least
do not abdicate them. They always reserve the theoretically. Even a fine is imposed in some
right to have the last word by Referendum of the Cantons on the absentees who
and perhaps the first word too by means of deliberately fail to attend its meetings. There
the popular Initiative procedure.” These is not much of debate in this popular
devices of Referendum and Initiative have Assembly. Its preliminary work is done by an
been adopted in some other countries also but advisory body. This popular Assembly which
they serve as frills to adorn the constitutional is the repository of the said cantonal authority
costumes. They do not constitute the warp makes laws, passes resolutions, decides current
and woof of the political fabric, as is the case questions like those concerning finance and
in Switzerland. According to John Brown, “they public works, elects officials, revises
have become virtually Swiss institutions”. Constitutions, levies taxes, creates new offices
and determines their salaries. Thus, it is
obvious that the Landsgemeinde possesses all
 294 World Constitutions—Switzerland

those powers which a sovereign legislative How Compulsory Constitutional

body is supposed to possess. In the words of Referendum is Practised?
Lloyd, “The Landsgemeinde Cantons have the If both the Houses of the Federal Assembly
purest form of democracy in which the sovereign agree to revise the Constitution, either wholly
power of the people is directly exercised in all the or partially, they draft the proposed new
critical acts of Government by the full Assembly of Constitution if it is a total revision or the
citizens forming the largest and most conspicuous particular amendment or amendments if it is
example of what Rousseau and certain other a partial revision, and submit it to the vote of
political philosophers regard as the only democracy.” people and Cantons. If the majority of those
It may however, be pointed out that the voting and the majority of the Cantons
Landsgemeinde can exist only in small approve of it, the said revision is effected.
Cantons, and there also, their future is If the Houses differ on the proposed
uncertain. Rappard has rightly pointed out, revision, it is deemed essential to decide
“It is difficult to believe that it can survive whether the proposed revision is needed or
indefinitely except perhaps as a museum exhibit of not. Hence, the proposal of revision is first
primitive democracy or rather as cherished referred to the people to know whether the
remainder of the days gone by.” revision is needed or not. If the people approve
of it by a majority vote, the Federal Assembly
Referendum—what it means?
is dissolved and new elections take place.
Referendum means “refer to the people.” It is After the elections, newly elected Houses
an instrument of negative action. It rectifies proceed to consider the proposed revision. If
the acts of commission of the legislature by both the Houses approve of it—a foregone
enabling the electorates to approve or reject a conclusion—the said revision is placed before
legislative measure proposed or already passed the people and the Cantons for their approval.
by the legislature. There are two kinds of If the majority of the people and the Cantons
Referendum—optional and _ obligatory pass it, the said amendment comes into force.
(compulsory). In the case of Obligatory Besides Compulsory Constitutional
Referendum, the laws passed by the legislature Referendum, the following are also submitted
do not become laws until and unless the same to the vote of the people and the Cantons:
have been approved by people. In the case of
(1) The entry into organisations for collective
Optional Referendum on the other hand, the
security or into supranational communities
bill is referred to the people if a demand is
(presently the proposal to join the United
made for that purpose by a specified number
Nations was submitted for Referendum).
of votes.
(2) Federal statutes declared urgent which

How it works in Switzerland? have no constitutional basis and whose

validity exceeds one year, such statutes
According to the Constitution of 1848, all
must be submitted to the vote within one
amendments to the federal and cantonal
year after their adoption by the Federal
Constitutions are subjected to Compulsory
Parliament.
Referendum. The Constitution makes it
(3) Popular initiatives for the total revision of
specifically clear that a constitutional
the Federal Constitution.
amendment shall be effected only when it is
accepted by a majority of the Cantons. Each (4) Popular initiatives for partial revision of
full Canton is entitled to one vote and each the Federal Constitution in the form of
half Canton only half a vote. The vote of a general suggestions which were rejected
Canton is determined by a majority of the by the Federal Parliament.
electors’ voting.
 Direct Democracy in Switzerland 295

Optional Referendum citizens are procured through paid postcards

Optional Referendum was introduced by the sent to them by the Federal Council. When the
constitution of 1874. It is used for the passage requisite number of signatures reaches the
of Federal laws and general binding Federal Federal Council, the law in question is
decrees and since 1921 for ratification of published and circulated among the people.
international treaties. The Federal laws which Four weeks after the publication of the law, a
are not declared urgent by the Assembly are Sunday is fixed for the voting. The cantonal
to be submitted to the Referendum if 30,000 authorities are entrusted the task of making
Swiss voters or eight Cantons so demand it. It arrangements for voting though ballot papers
may however, be pointed out that the Federal are supplied by the central Government. There
Assembly misused the urgency provision is not much of hectic activity on the polling
during war and economic crisis. Hence, a day. Complaints of impersonation and
constitutional amendment of November 11, corruption are rarely heard.
1949 curtailed this power of Assembly by
Initiative
specifying that 50,000 voters or eight Cantons
can call for a Referendum even on a law It is a positive device to rectify the acts of
certified by the Assembly as urgent with a omission of the legislature. It was introduced
validity exceeding one year. Such a law will in Switzerland in 1892. Initiative is of two
cease to operate if within a year, it is not types—formulative and unformulative, ie.,
approved by the popular vote. Thus, the couched in general terms. A Formulative
Assembly can no longer abuse the “urgency” Initiative proposes an amendment in the form
clause. of regularly drafted bill. An Unformulative
In 1921, the Optional Referendum was Initiative, on the other hand, makes only a
provided for international treaties concluded general proposal of a desired amendment.
for a period of more than fifteen years or
How it works in Switzerland?
indefinite period or which provide for entry
into an international organisation. Initiative is provided for Constitutional
amendments only. Complete revision of the
Referendum in the Cantons constitution or specific amendments in it, can
As already stated, Constitutional Referendum be made by popular Initiative on the demand
is compulsory in all Cantons. Legislative of 1, 00,000 Swiss citizens. The procedure for
Referendum is also compulsory in ten full and total revision differs from that of partial
one half Canton. Optional Referendum is revision.
conducted on the demand ofa specific number
Total Revision through Initiative
of voters. In the rest of the Cantons,
Referendum is not practised as laws are passed Prior to 1977, if total revision of the
directly by the people in the “Landsgemeinde”. Constitution was demanded by 50,000 Swiss
citizens, the question whether there should be
How the requisite Signatures are a revision of the Constitution or not, was
obtained? referred to the people for their vote. In 1977,
Every Federal law or the international treaties the number of petitioners was raised from
are published in the Federal journal and sent 50,000 to 1, 00,000 Swiss citizens. If majority of
to the Cantons for circulation among the the citizens voting at a Referendum favour the
communes. Within ninety days of their total revision, the Federal Assembly is

circulation 50,000 Swiss citizens or eight dissolved and new elections take place. The
Cantons may demand its submission to the newly elected Assembly drafts the new
Referendum. The requisite signatures of the Constitution and if it approves of it, it refers it
296 World Constitutions—Switzerland

to the vote of the people and the Cantons. If It may not be out of place to point out that
majority of the people and the Cantons pass it, Initiative is confined only to amendments in
the Constitution is revised in toto. the Constitution and is not allowed in case of
ordinary legislation. In Switzerland however,
Partial Revision through Unformulative the distinction between the Constitutional
Initiative amendments and ordinary law stands blurred,
If the demand for partial revision is couched surprisingly several ordinary subjects are
in general terms or unformulated, the Federal enumerated in the Constitution e.g fisheries. It
Assembly if ratifies it, frames the amendment enables the Swiss citizens to seek advantage
and refers it to the people and the Cantons for of Initiative even as regards non Constitutional
their approval. If majority in both the cases ordinary bill. We refer below this fact
approves of it, the amendment takes place elaborately to make the point more clear and
and it is incorporated in the Constitution. specific.
If the Federal Assembly does not approve
of the amendment, the question whether partial No Legislative Initiative in the
revision be made or not is referred to the Confederation
people for their decision. If majority of the As already said, the Swiss Constitution does
people voting favour the revision, the existing not make provision for Initiative for non-
Federal Assembly which had formerly constitutional federal legislation. It is, in fact,
disapproved of the amendment, drafts the a serious anomaly though nota great handicap.
amendment conforming to the popularly Ordinary legislative revisions are initiated by
initiated proposal and then submits it to the the people under the guise of constitutional
people and the Cantons for their verdict. If the revision. Provisions relating to the prohibition
majority of the people and the Cantons accord of a noxious drink, old age insurance,
their approval, the said revision is effected. production of wheat, stoppage of gambling
houses, slaughtering of animals, etc., have been
Partial Revision through Formulative brought before the Assembly in the form of
Initiative “Constitutional Initiative” and the omission of
If the proposal for partial amendment is a lack of legislative Initiative does not, therefore,
formulated one, it is first to be submitted to appear as a handicap or a flaw in the
the Federal Assembly for its approval. If the Constitution. Dr. Finer has very well observed,
Assembly approves of it, it is referred to the “The Constitutional Initiative (in Switzerland) is
people and the Cantons for their vote. If both wide enough to include ordinary legislation when
approve of it, the amendment is effected. proposed in a constitutional amendment and this
If the Houses of the Federal Assembly which is found in some states of the United States
differ, or do not approve of it, they may also is a defect rather than a merit—to put ordinary
recommend to a Referendum either the laws into Constitution.”
rejection of the said proposal or counter-
Initiative in the Cantons
proposals and submit them along with the
original popularly initiated proposal to the Except Geneva and the Cantons where laws
people and Cantons. Whichever proposal the are made in their Landsgemeinde, all other
people and the Cantons accept is implemented. Cantons have provided for both Legislative
Should both be approved, they may indicate and Constitutional Initiative. Fewer signatures
their preference. In case one draft is approved are required for a Legislative than for a
by the people and the other by the Canton Constitutional Initiative. For example, in Berne
neither of them shall come into force. (Canton), 15,000 and 12,000 signatures are to