Nr. 20 – Tombeur, January 2013

Paper No. 20 contains an analysis of the Swiss federal system. The creation of the Swiss State began as a loosely connected association of independent governments, evolving into a treaty-based Confederation, to become a Federation in 1848, based on a Constitution. Characteristic of this federal system is the fact that the Member States – the so-called Cantons – play an important role in the federal decision-making process and in the implementation of decisions. Besides that, the Cantons and the people as a whole determine federal policy through the instruments of a direct democracy: through referenda and people-initiatives they influence the decision-making process of the federal powers, including the introduction of amendments in the federal Constitution – all by majority voting. Tombeur carefully presents what aspects of this Federation are useful within the constitutional and institutional building that Klinkers and Tombeur are erecting for the European Federation in the following Papers.

European Federalist Papers © Leo Klinkers & Herbert Tombeur, 2012-2013

 

Before I – as promised – will elaborate on the Swiss Federation, I have to say that I cannot reside in the elected oligarchy or elective aristocracy as described by you in Paper no. 17 through the words of Frank Ankersmit – systems that are democratic in name only. It seems to me that the picture Ankersmit paints of the political situation in Western Europe is even too rosy. In a large number of European countries this oligarchy has created an almost unreachable group of power brokers, in other words: the oligarchy has become a closed-shop elite. Too much decision-making power in too few hands, supported by an army of officials controlling European society increasingly through the means of a technocratic bureaucracy. This is the widespread democratic deficit of the West; a dangerous path has been chosen.

Resigning ourselves to this democratic deficit? That verb is not in my dictionary. But how can we fight this elective aristocracy, or an even worse form of oligarchy?

By creating a counterforce. For instance by establishing forms of direct democracy, besides the powers of the representative body, Parliament. Because society makes its own governmental shapes; when a governing power wants to control society from the top-down, society will assess this and will either accept it or not. If not, society will resist one way or another, openly or underground – to eventually win, always. Thus European society is resisting – at present – the over-regulating urge of Europe’s elite, busy maximizing its powers with the ‘requirement for more integration’ as an arbitrary excuse. With direct democracy as one of the answers to fight the democratic deficit the Swiss polity comes into sight.

Switzerland reveals that a direct democracy – with referenda and peoples-initiatives, besides the legislative powers – is quite feasible. I quote – in a free translation, underlined in places by me – Jean-François Aubert from his ‘Droit constitutionnel suisse’, published on the occasion of the latest general revision of the Swiss Constitution (1999): “All constitutions organize the State (with a parliament, a government and courts and their respective powers). Even democracy can be seen as part of the stately organization: the political rights of the citizens are based on a statute that is comparable to the basic rights; similarly, they have to be complied with and protected. But the electorate is also an organ of the State, the highest of them all, and the rules of organization in constitutions apply therefore to the definition of ‘citizens’ and to the enumeration of their powers, elections, referenda and peoples-initiatives.”

Switzerland proves that mixing a representative and a direct democracy works well. In my opinion it seems the most appropriate State system, at least up until a certain scale of government. The cooperation of the people in the political decision-making process is – of course – easiest on the local level, the level of the local authorities. In this respect the Swiss model completely fulfils Althusius’ basic thinking: creating a State starts from the bottom-up, by the individual citizen and groups of citizens.

This formula approaches closely the concept of ‘self-government’: citizens governing themselves as a condition for freedom, dixit Clinton Rossiter in his Foreword to the Federalist Papers in the 1961 edition. A very urgent matter, it seems to me, for most European countries. Even a European Federation alone will not change the citizens’ mistrust of public authorities of all kinds, festering for many years now, as revealed by the Euro barometer and other polls. Hence, this well-thought formula of ‘self-government’. It should start on the local level, because that is where most citizen’s affections lie, both socially and materially.

Within higher levels of government the mixed system of decision-making is more difficult or even impossible, due to the magnitude of the electorate. However, to block an oligarchy also on those levels other methods do exist: by prohibiting an accumulation of political mandates and establishing incompatibilities, by confining mandates to a limited period of time, by reserving legislative powers to Parliament without decision-making powers for the Government, and by electing judges by institutions other than the executive.

American Congress is not only the legislative power in name, but also in reality. I liked your exposé in Paper no. 17, esteemed Klinkers, about the presidential system of the U.S.A., where the President has no right of initiative in the field of law-making, nor has he the final word with respect to legislating: his right to veto a parliamentary draft-law may be overruled by a large majority in Parliament. This is the so-called second reading of a draft. Federal Government and their advisers, under the leadership of the President, can never impose their will on Parliament – a sad way of acting that is, however, widespread in Europe: the legislative power has literally become a ‘non-power’ and is therefore chasing the Government because they want ‘to govern’ as well, for instance by asking masses of questions and endlessly discussing the governments’ policy with Ministers, mostly without any tangible result.

I would like to recall that Switzerland has been a Federation since 1848 – after the brief civil war (the Sonderbundkrieg). Nevertheless it keeps calling itself ‘Confederatio Helvetica’ in order to avoid a debate about changing its name, this being a politically sensitive matter in some Cantons. Article 1 of the Constitution states: “The Swiss people and the Cantons (followed by their names) constitute the Swiss Confederation.” Still I do prefer the term ‘Federation’. This combination – the Swiss citizens and the Cantons, the Member States together – indicates that Switzerland is a Federation.

Once again, in a Federation the Member States do not disappear, as has been argued so many times by others. On the contrary. A Federation consists of States and of a ‘higher’ governing body operating on the basis of a limitative set of powers. In this respect, Article 53 of the Swiss Constitution is important, together with the first article. That article determines what I stated in Paper no. 5 with regard to the classical form of Federalism: 1st the guarantee of sustained existence, the statute and the territory of the Member States, the Cantons; 2nd submitting any change in the number of Cantons or in their statutes to the electorate of all Cantons and to the Swiss electorate; and 3rd submitting any change of the Cantonal territory to the concerned electorates and Cantons, followed by the federal Assembly. Also the federal Constitution guarantees the Cantonal Constitutions, provided that they do not conflict with federal law; it also protects the constitutional order of the Cantons (Articles 51 and 52). Later I will describe the strength of this bond.

Let me now – after this brief description of the federal organization of Switzerland – begin with the horizontal division of powers: the trias politica.

Legislative power lies with the federal Assembly (‘Bundesversammlung’, ‘l’Assemblée fédérale’), consisting of two Chambers: the People’s Chamber (‘Nationalrat’, ‘Conseil national’) and the States Chamber (‘Ständerat’, ‘Conseil des Etats’). The executive power lies with a federal Council (‘Bundesrat’, ‘le Conseil fédéral’). This system is curious and maybe unique. It contains parliamentary as well as presidential characteristics: on the one hand both powers (Parliament and Government) exist independently from each other while on the other hand – though there is a division between law making and governance, including implementation and enforcement –  there is cooperation of, and even interference between both powers.

Government, the federal Council, consists of seven people (one vote each) and should be geographically and linguistically representative. It is appointed for four years by Parliament, the federal Assembly. Parliament cannot send the Government home (Articles 174-177). Nor does Government step down if it is embarrassed by the electorate after a referendum. If the Governments’ policy is not accepted by the people they stay in their posts and adjust the policy.

Both Chambers of the federal Parliament are elected for four years in Cantonal constituencies (Articles 148-155). The Swiss electoral system resembles the Belgian one; as a result there are no or hardly any national political parties. Federal Parliament cannot be dissolved by Government. The members of Parliament and Government, as well as those of the federal Court, are individually independent; their mandates are incompatible (Article 144). Parliament controls the federal Government and its administration (Article 169).

On the other hand both State institutions depend on each other to a large extent, thus their own independent operation is limited: their powers and tasks, also those of the federal Court, are spread throughout the institutes. Both have the right of initiative (legislation) and they cooperate in establishing laws (Articles 163-165 & 181-182). The distribution of tasks is so complicated that one institute cannot monopolize the execution of the main tasks: each federal institute is forced to cooperate with others, even with the national federal electorate and the Cantons.

Moreover, the political agenda is not only directed by the informal consultation of Cantons, parties and professional associations, but also by the formal peoples initiatives from groups, that at any moment may submit – to the national electorate and to the federal Assembly – proposals to changing the Constitution completely or in part (Articles 138-139b). Even if only one out of ten of these initiatives is accepted, such peoples initiatives influence the policy of governing bodies.

Typical for Switzerland and important for a federal Europe is the fact that the national or the Cantonal electorates, as highest organs of the State, have to interfere. National referenda are mandatory for any change made to the Constitution. A free translation of Article 140 of the Constitution is clear in this respect: “Mandatory referendum – 1. Subject to the result of the voting by the people and the Cantons are: a. revisions of the Constitution; b. accessing organizations for collective security or supranational communities; c. the as urgent declared federal laws without constitutional basis, which have to be in force for over one year; these laws need to be voted upon within one year as of their acceptance by the federal Assembly. 2. Subject to the voting of the people are: a. peoples initiatives  aiming at a complete revision of the Constitution; b.  peoples initiatives  aiming at a partial revision of the Constitution and which were rejected by the federal Assembly; c. the principle of a complete revision of the Constitution in case of conflict between the two Councils.”

Besides that, there is the possibility of facultative referenda on the national level about federal laws, regulations or international agreements, on the initiative of a certain number of voters or Cantons (Articles 141-141). I won’t touch upon these referenda in this context.

In short, just like in most other States the three functions of the State are spread among the three classical branches, thus a horizontal division of power. Characteristic for the Swiss branches, however, is the constitutional instruction to cooperate. Their mutual cooperation is a clear goal of the Constitution. Sometimes the Court has to intervene in this cooperation. Switzerland has combined the parliamentary system with the presidential system.

The Assembly is not only legislator number one, but also qualified to appoint federal judges (Article 168) and to settle conflicts of qualifications between authorities, violations of Cantonal constitutions, the legal status of federal peoples initiatives et cetera (Article 173). On the federal level the Assembly has residuary powers; it carries out tasks that are not assigned to other federal institutes. Federal Government’s main mandate – besides legislative tasks – is the implementation of federal policies and taking care of relations between the Federation and the Cantons (Articles 180-187).

The federal judges are elected by the federal Assembly (Article 168). The federal Court assures ultimately, after interference by the Cantonal courts, the uniform application of laws that transcend the Cantonal jurisdiction; it settles conflicts between the Federation and the Cantons and between the Cantons (Articles 188-189, 1-3). The Court is entitled to be legally creative. However, it is not possible to dispute decisions by federal Parliament and Government, unless in cases described by law (Article 189, 4). The Constitution does not have the clause that the Court can control the compliance with the constitutional division of powers by the federal bodies. In that sense the federal Court is not a constitutional Court.

In what way should we look at this from a federal European point of view?

There is indeed an advantage to a European Government collectively elected by the two Chambers of a European Parliament, in one European constituency. However, the complicated division of powers between the three Swiss branches, even more complicated due to the possible intervention of the electorate and the Member States, seems to me inappropriate for the Federation Europe. I fear that a continuous cooperation between federal institutes, further burdened by the interventions of the Cantons and the electorate, will lead to inertia and impasses. Such a system would perpetuate the present operation of the European Union, resulting in a democratic deficit. We must leave the present EU-system behind, in the opinion of a growing number of citizens across Europe.

Thus, I would like to opt for a presidential system in the sense that President and Parliament possess clearly distinct powers, comparable to the American model. This horizontal division of powers between the European trias politica has to be written down in its entirety in a Constitution along the lines of the American one. Whether the President or (part of) the federal Government should be elected directly by the European citizens or by European Parliament is a matter to decide upon later, esteemed Klinkers.

There is an obvious need to establish a Supreme Court to safeguard the uniform compliance with federal legislation. This Court should also have the power to ensure compliance with the constitutional division of powers as is the case in other Federations, with the exception of the federal Court in Switzerland. I also plead for the creation of federal courts in States or in groups of States, acting as courts in first instance; for example, one federal court within the three Benelux States. To ensure a uniform legal practice and equal legal treatment, the national courts of the States should not have the power to handle federal law, unless after having consulted prejudicially a federal court or the Supreme Court. Their decision should be binding for the State courts. Furthermore, I would like to give the power to appoint the federal judges and judges of the Supreme Court to the European Parliament, and to no one else, following the Swiss example. Why? To guarantee their independence from the executive power and to acquire the trust of the institution which made the laws that they, the judges, have to uphold.

Now I will address the vertical division of powers in Switzerland: between the 26 Cantons (including six half Cantons) and the federal body.

As an introduction to this division of powers, so characteristic of Federations, I would like to draw attention to the fact that the approval of the first (and later) federal Constitution in 1848 has been equal to the process that was followed to create the American Constitution. The texts of the Constitution are accepted, not unanimously but by a majority vote; on the national level as well as on the Cantonal level.

With pleasure I quote, again in a free translation, Augustin Macheret, who writes in ‘Droit constitutionnel suisse’ (2001) about the approval of the Swiss Constitutions: “Always looking for consensus, this pragmatism does not question the legitimacy of the Constitution if only a limited number of voters (36%) and even the rejection by some Cantons occur. Looking at the three Swiss Constitutions since 1848 the number of Cantons and half Cantons that rejected all draft Constitutions have increased in such a way that at present six Cantons and half Cantons did not accept any draft of the three Constitutions. In 1848 eight Cantons did not approve, in 1874 ten and in 1999 twelve.”

Nevertheless, all Cantons remain within the Federation, even those rejecting adaptations of the Constitution. This proves to be the strength of this Federation. It is not based on a Treaty that can only be altered unanimously, but on a Constitution of the Member States and citizens. A Constitution which can be adapted by a majority vote, and not by unanimity, through a dictatorial veto right. The minority accepts the outcome of the majority vote. Macheret concludes with an impressive quote from ‘La Suisse et l’Europe’ by Jacques Freymond: “Indeed, the Swiss have the absolute duty to express their wish to live together, which elevates the acceptance of diversity as the condition for unity.”

Diversity as a condition for Swiss unity! This is completely different from the outdated story elsewhere in Europe about diversity as an obstacle to a European Federation.

For European federalists this is something to ponder. Because it proves what I have said, accompanied by André Glucksmann: differences do not necessarily hinder federal unity; on the contrary, they even further that unity. How? By externally driven forces.

This has been the case in Alpine Central-Europe with its three (in 1291) and now about twenty rather small communities that wish to maintain their democratic independence and protect themselves against larger neighboring countries. With geography as their ally, they have succeeded in this. Thomas Fleiner and Alexander Misic in ‘Verfassungsrecht der Schweiz’ (2001) put it as follows: “For ages these little communities have turned away from the stately development of their neighbors in order to maintain their democratic independence. Thus, 26 little communities have closed their ties at the border of three large linguistic territories in Western Europe, in order to preserve their political and cultural independence from their mighty neighbors. Each of these communities could develop its legal status, political and religious culture and historic independence while nevertheless being connected with the culture of neighboring countries. (…) This paradox of unity in diversity summarizes the federal principle and is the starting point of several theories on federalism.”

What used to apply to Switzerland is nowadays applicable to Europe, in this 21st century multipolar world, an era that is more and more controlled by (sub)continental forces. Will Europe accept the challenge or will it keep wandering around in its nation-state and popular-nationalistic arena? By only living in the past, Europe will not acquire a place of its own in this rising multipolar world that is increasingly controlled by large, multicultural Federations.

Well, now I will elaborate on the vertical division of powers.

The principle here is that the Swiss Federation possesses only sovereign powers (Article 3) and is only empowered to undertake tasks as determined in the Constitution (Articles 42 and 47). That is the classical model of a Federation built bottom-up.

The powers of the Swiss Federation are softened in two ways. Firstly, its powers are restricted by the federal obligation that Cantons have to cooperate in federal law-making (Article 45, 1) and the obligation to consult Cantons whenever their interests are at stake (Article 45, 2). Secondly, they are softened by the principle of subsidiarity whith respect to public duties. Article 5a reads: “Subsidiarité – L’attribution et l’accomplissement des tâches étatiques se fondent sur le principe de subsidiarité.” This principle means that the federal body is carrying out tasks transcending the Cantonal means or requiring uniform legislation (Article 43a, 1). On the other hand, the Federation has the power to generalize agreements between Cantons (convenants) or even to force some Cantons into taking part in those convenants.

Finally, the Constitution demands vertical cooperation and support. The Federation and the Cantons assist each other in the fulfillment of their tasks; they work together and are duty-bound to support each other administratively and judicially (Article 44, 1 and 2).

To keep this complicated system operational, federal legislation has priority when it collides with Cantonal legislation (Article 49). This priority is not only necessary to safeguard the Federation’s unity, but also for the citizen’s legal security. In this, Switzerland has been inspired by the American Constitution.

To avoid a detailed description of this complicated system I confine myself to an enumeration of the sovereign powers of the Swiss federal body:

  • Public safety, defense and civil protection (Articles 57-61).
  • Vocational education, permanent education, scientific research, innovation, sports and movies (Articles 61a-72).
  • Environmental protection, water policy, forest management, heritage, hunting, fishery and animal protection (Articles 73-80).
  • Infrastructure, traffic and transport, traffic taxes, railways, transport by air, water and space (Articles 81-88).
  • Renewable energy, nuclear energy, transport of energy, mail, telecom and media (Articles 89-93).
  • Economy, competition, consumer protection, banks, insurance, currency, foreign economic policy, supplies, economic structure policy, agriculture, production and trade in alcohol, gambling, ammunition and weapons (Articles 94-107).
  • Housing, labor, social security, public health and genetics (Articles 108-120).
  • Migration policies (Article 121).
  • Civil and penal law (Articles 122-125).

In addition, the federal body also possesses fiscal powers. I leave them aside for the sake of brevity.

To finalize the description of federal powers I would like to mention two, in my view important conditions.

First of all Article 161 is remarkable. It reads as follows: “Interdiction des mandats impératifs – 1. Les membres de l’Assemblée fédérale votent sans instructions. - 2. Ils rendent publics les liens qu’ils ont avec des groupes d’intérêts.” This means that each member of each Chamber of federal Parliament has an individual mandate to take care of the general interests of the whole Federation. Dear Klinkers, we have to remember this when we start drafting our version of a European Constitution.

Secondly, I would like to mention that the Swiss Federation is organized ‘functionally’, comparable to the German and Austrian Federation (see Paper no. 5): according to the Constitution, federal laws are carried out by the Cantons (Article 46). Once more, in Switzerland the federal and the non-federal bodies are complementary to and depend on one another. As I have stated in Paper no. 15, it seems to me that this ‘functional’ type of Federation is not quite suitable to Europe. It is preferable to adopt the so-called ‘institutional’ type, allowing for both levels of government (the level of the Federation and that of the States) to operate as independently as possible from each other – which should not prevent them from cooperating voluntarily if deemed necessary.

To conclude my presentation of the Swiss constitutional system I will briefly deal with its official multilingualism. The Swiss Constitution guarantees linguistic freedom of all citizens (Article 18), while also determining that the Federation has four official languages: German, French, Italian and Raeto-Roman. Relations between the Federation and the citizens or the Cantons are carried out in the first three languages;  Raeto-Roman is used for people who speak this as their mother tongue (Article 70, 1); it is not used within federal public offices or in federal law-making.

Who dares to say that a powerful Federation needs one homogeneous people with one language?

The Cantons themselves decide on their official languages, taking into account the established linguistic territories and the interests of language minorities (Article 70, 2). They also apply their own linguistic statutes when carrying out federal policies. The Federation and the Cantons support each other in this multilingualism (Article 70, 3-5).

In court cases they use the language chosen by the litigating parties. Federal courts’ judges use the language that is used in the decision that has been attacked. In Cantonal procedures the administrators are obliged to use the official language of their administration.

In summary, the equal treatment of the four national languages is safeguarded and is effectively used in the relations between the federal body and the citizens. Besides that, maintaining the stability of the historically developed linguistic territories is a goal. Research shows that knowledge of other languages is limited. The constitutional goal of the federal body and the Cantons to further multilinguism is not superfluous.

What should we learn from this Swiss governmental system for Europe? Which constitutional aspects should we adopt in a European Federation, and which not?

With respect to the horizontal division of powers I can be brief. The Swiss system seems to me too complicated to be effective in a European Federation of nine of more States, later over thirty. It is preferable to opt for a bicameral system with one Chamber for the citizens and one for the States. Even so I prefer a presidential system for the Federation, not a parliamentary democracy. The division of the power to legislate on the one hand and to execute that legislation on the other has to be formulated clearly in a federal European Constitution.

I would like to retain the EU Court of Justice, although transformed into a Constitutional Court. That federal Supreme Court should be entitled to control the compliance of the constitutional division of powers, contrary to the federal Supreme Court in Switzerland. It seems to me that the members of the federal European Supreme Court should be appointed by the federal European Parliament. That Parliament itself should be elected on the basis of one, all-encompassing European constituency, in order to create a European ‘politeia’. This should lead to trans-European political parties.

The individual mandates within the three branches should not be compatible: one person should be member of one institution only. The mandates are to be carried out independently, thus without interference of the States or other institutions. These two principles contributing to functional independence – and thus responsibility – should in my view be included in clear words in the European Constitution.

Multilinguism within the European government is also evident: there may be more than four languages as working languages. Relations between the federal body and the citizens or the States can be handled in the same or in different languages, according to the Constitutions and federal laws, comparable to the way the Swiss deal with the Raeto-Roman language.

My proposal for typical federal characteristics would be:

  • Safeguarding the existence and diversity of the States and the composition of the Federation.
  • A classical vertical division of powers, thus a limitative enumeration of powers (a ‘Kompetenz Katalog’, as the Germans say).
  • Guaranteeing individual independence of the members of Parliament, Government and Courts.
  • Cooperation between the Federation and the States.
  • Guaranteeing autarkic governance of the Federation and the States. For instance in the domain of taxes.
  • Majority voting, never by unanimity, on the level of the Federation and that of the States with regard to adaptations in the Constitution.
  • With respect to conflicts: priority to federal laws.

Let us – esteemed Klinkers – incorporate the useful parts of the American and Swiss Constitutions in our draft of a federal European Constitution, in addition to some specific European ingredients.

Katern
The Swiss Federation can be depicted as follows:

  • Classical. It is a bottom-up Federation, evolved from a Confederation, with limitatively enumerated powers, thus all other or residual powers belong to the Cantons.
  • Competitively and teleologically oriented. The division of powers is subordinated to the needs of society, while the question ‘who is in charge?’ is dealt with according to the principle of subsidiarity.
  • Functional. The Cantons carry out federal laws. Moreover, sometimes they have to approve of federal decisions or should be consulted about them.
  • Intergovernmental. The level of the Federation and that of the States are largely interdependent and therefore need to cooperate.
  • Autarkic. Both levels have incomes, also from fiscal sources.
  • Majority vote. Striving for a large majority or even consensus, but no voting by unanimity.