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SWITZERLAND (Swiss Confederation) Thomas Stauffer, Nicole Töpperwien, Urs Thalmann-Torres 1. History and Development of Federalism Switzerland is a country of about 7 million people in the middle of Europe. Its neighbours are Germany, Austria, Liechtenstein, Italy and France. It has been a federation since 1848, and its federal institutions have meant that the country has been able to accommodate diversity politically. Historically, the 26 cantons and the about 3,000 communes were able to develop their own traditions and cultures so that Switzerland had and still has cultural, cantonal and communal diversity. Switzerland did not attempt to homogenize its population nor did it split according to linguistic, religious, or cultural lines. The official starting point of Swiss history is 1291. In 1291 three cantons (at this time called Orte) concluded a treaty and created a defence union combined with a system of arbitration for conflict management among the cantons. The union was intended to prevent outside dominance and guarantee a power balance within the country. Other cantons joined by concluding further treaties so that a confederation based on a treaty system developed. The confederation was to facilitate as much cooperation as necessary to defend the independence of Switzerland while safeguarding the sovereignty of the cantons. At the end of the eighteenth century modernization in neighbouring countries, industrialization and the professionalization of the army, combined with the ideas of the French Revolution, triggered demands for some centralization and modernization in Switzerland. In 1798 French forces led by Napoleon invaded and created a centralized state in accordance with the French example. The cantons were transformed into equal but purely administrative units. Switzerland, however, quickly proved to be ungovernable as a centralized state, and Napoleon brought back the cantonal system. After Napoleon’s defeat, Switzerland opted again for a loose confederation. In the Vienna Congress (1815) the borders and the neutrality of Switzerland were recognized. While many of the Protestant cantons adopted progressive democratic governments, in other predominantly Catholic cantons the old influential families re-introduced conservative power structures. The progressive cantons pressed for democratization and centralization of the union. In order to limit the pressure of the progressive (mostly Protestant) cantons, the conservative (predominantly Catholic) cantons formed a secret union (Sonderbund). This violated the treaty of confederation. When the union was revealed and the Catholic cantons refused to dissolve it, the Protestant cantons dissolved it by force. The year 1847 entered Swiss history as the year of civil war. After the civil war, the defeated Catholic cantons elected new democratic governments. In 1848 the people and the cantons of Switzerland adopted a federal constitution. This constitution was a compromise between the winners and losers of the civil war. It introduced some centralization but it also guaranteed, through the institutional set-up and the limitation of competencies of the central government, respect for cantonal diversity. With the 1848 constitution, Switzerland took an important step towards modernity. It became a federal country based on constitutionally-guaranteed shared rule and self-rule. The modernization did not aim at homogenization of the population but tried to create a Swiss nation by preserving the pre-existing diversity. The combination of shared rule and self-rule enabled the country to create diversity in unity. While over the years the institutions and political processes have developed further, and there have been two total revisions of the constitution (1874, 1999), the over-all design has stayed the same. The federal constitution has provided the basis for the peaceful cohabitation of different cultural, linguistic and religious groups. 2. Constitutional Provisions Relating to Federalism Switzerland is a federation composed of 26 cantons (Article 1), of which six are so-called “half cantons”, arising out of the historic division of three cantons taking place before the foundation of the federation in 1848. These half cantons have the same independence as the other 20 cantons (Article 3), with the exception that they have only half the representation when the formal tools of shared rule are concerned. This means that they have only one representative in the Senate (Article 150), and only half of a cantonal vote when the majority of cantons is required for a referendum (Article 142). According to the Swiss Federal Constitution of 1999, as well as earlier constitutions, cantons are “sovereign” as long and insofar as their sovereignty is not limited by the constitution (Article 3). Sovereign in this case means that they have the exclusive right to execute the legislative, executive and judicial powers within their territory in all domains that can be subject to state power. The Confederation is obliged to respect this exclusive sovereignty of the cantons. (“Confederation” refers to the official name of the Swiss federal state, Confederatio Helvetica or “Swiss Confederation” in English. Despite its traditional name, however, the modern Swiss political structure does not fit the modern concept of a confederation, but is rather a federation.) This sovereignty is not absolute, however. The 1999 constitution places limitations on the sovereignty of the cantons in several different ways. For example, it guarantees fundamental rights to all people living in Switzerland (Articles 7-36) and provides judicial review by the Swiss Federal Supreme Court, which watches over the observance of fundamental rights by cantonal authorities. Even more clearly, the limitations to the sovereignty of the cantons come out of the legislative and executive competencies of the Confederation. However, there are still important subjects over which the Confederation has no, or very little, competence. As a consequence, these matters remain within cantonal jurisdiction. Listed below are some examples of major importance to cantonal self-determination and cultural identification. State constitutions. The drafting of state constitutions is purely cantonal. The cantons define their own political system. Municipalities. The territorial division of the cantons into municipalities has a very long tradition. Each canton grants different powers to its municipalities, but once these powers are laid down in the law, they are guaranteed and protected by the Swiss Federal Court in much the same way as it protects the fundamental rights of individuals. Education. Education on all levels is an almost purely cantonal matter. Cantons themselves define the curriculum, and appoint, employ or elect the teaching staff, etc. Public order. In peace-time, public order is a purely cantonal matter. A federal police force does not exist. Direct taxes. Cantons raise their own taxes on income. There are no issue-areas that are in the domain neither of the Confederation nor of the cantons. Each new issue that is not mentioned in the constitution automatically falls within cantonal power (Article 3). So, theoretically speaking, there can never be lacunae in the division of powers. A further observation concerns the power to distribute the competencies. As the revision of the 1999 constitution is a federal matter (Articles 192-195), and the distribution of competencies arises exclusively from the constitution, the revision of powers is a federal competence. However, this power is limited by the cantonal role in the decision-making process at the federal level. Several institutions and practices give the cantons an important influence in decision making at the federal level (shared rule). First, the federal law-drafting authorities are obliged to inform the cantons directly about their intentions and in most cases the law gives the cantons the right to be consulted. Thus, the cantons have influence on the process even before a proposition comes to the Parliament (Articles 45, 55). This is important as in this stage cantons can still have an important influence on the formulation of legislation, whereas afterwards their influence would be reduced to saying “yes” or “no”. Second, the Swiss federal Parliament, officially called the Swiss National Assembly, is divided into two chambers, the House of Representatives representing the people, and the Senate representing the cantons. In the Senate each canton has the same number of votes. Each chamber has exactly the same powers, and no federal statute can be enacted without the agreement of both of the chambers (Articles 148, 156, 163). The influence of the cantons through the Senate has declined, however, due to the fact that cantons are not allowed to instruct their representatives (Article 161). The only external influence on Members of Parliament is their need to be re-elected. In elections to the National Assembly the cantons form the constituencies (Article 149) and the cantonal sections of the parties select the candidates. In Switzerland political parties are strongest at the cantonal level, and therefore the deputies of both chambers try to adapt their political actions to the interests of the cantonal section of their respective party. This is a very important element of shared rule in Switzerland and provides one of the most significant counter-weights to the centralizing force of the federal government. Third, statutes and constitutional amendments are always subject to a popular referendum (Articles 140-142). Two different types of referendum must be distinguished. For ordinary legislation—a federal statute, for example—the referendum is optional and will only take place when 50,000 citizens have requested it. A proposition is approved if a majority of voters in the country as a whole agree. For the more important decisions—such as revisions of the constitution and the entry into international organizations for collective security, or organizations with supranational powers—a referendum is mandatory, and no collection of signatures has to take place. In this case, approval requires a majority of cantons in addition to a majority of voters. This means that a majority of the voters must approve in more than half of the cantons. Considering the large difference in terms of population between large cantons and small cantons, a proposal to revise the constitution can theoretically be rejected although 90 per cent of the population approved it, when the rejecting 10 per cent is evenly distributed in the smallest cantons. In other words, when it comes to the requirement of receiving approval in a majority of cantons, a voter of the (smallest) canton of Appenzell Innerhoden outweighs 40 citizens of Zurich. And finally, the composition of the executive branch of the federal government, the Federal Council (Articles 174-179), is a very important factor of shared rule, mainly because the Federal Council and its administration draft almost all law-making propositions, and they negotiate whenever an international treaty is discussed. The Federal Council is one of the best examples to show the particularly Swiss way of conducting politics—what is called consensus-driven democracy. It is composed of seven Federal Councillors, elected by both chambers of the federal Parliament, each of whom is head of a ministry, and together they are the Swiss Executive. For government decisions, all members of the Federal Council have equal votes, which means that the federal President is only primus inter pares. As much as possible, all major groups are given representation in the Council. This means essentially that the important political parties are represented as well as the language groups, the cantons and both genders. This representation is not the result of a legal provision and is not even mentioned in the federal constitution. Nevertheless a German-speaking parliamentarian of the Radical Party would vote for a French-speaking socialist when it is the latter’s turn to replace one of the Council representatives. The reason for this lies particularly in Switzerland’s tradition of direct democracy; a legislative proposal would have little chance of being accepted by the people if one (or more) major group did not support it. Since a strong opposition would be able to block most legislative activity, it is in the interest of every party to have the other groups involved for all important proposals. Since the revision of 1999, the constitution states that the Confederation will only assume the tasks that require uniform regulation (Article 42(2)). This rule binds the Confederation to the principle of subsidiarity in terms of the division of powers between the cantons and the central government. In this sense, the Confederation should only get jurisdiction if a uniform regulation is expected to be more efficient than regulation by the cantons. The principle of subsidiarity also applies to the application of law. The Confederation does not itself implement a great deal of federal law enacted within its constitutional competencies; it is the cantons which are in charge of carrying out most federal law. This gives the cantons much space to manoeuvre and take cantonal particularities into account. According to the principle of subsidiarity, the Confederation is required to leave the application of its law to the cantons as far as possible, regulating only what is absolutely necessary. Another unique characteristic of Swiss federalism is the lack of judicial review on the federal level. This means that, unlike in other federations, the Federal Supreme Court has no direct influence on the balance of powers between the cantons and the federation, even though it is “the highest federal judicial authority” (Article 188). The usual explanation of this unique constitutional provision is both historical mistrust of the population towards the power of judges, and an extremely strong belief in democracy. This led the constitution-makers to the decision that judges should not be able to abolish what has been decided democratically. In practice, the trust the constitution-makers had in the democratic institutions has mostly been justified. In general, federal law-makers obey the rules to which they are bound. Only in very few cases, has the federal Parliament enacted statutes where its competence to do so has been questioned. The federal and referendum-based system—especially the requirement for majority cantonal approval in important decisions, and the lack of harmonization within cantonal domains—is sometimes criticized for its tendency to slow down the political process in Switzerland. Progressive politicians in particular see major problems, notably because most of the small cantons are conservative in their voting behaviour, and can, due to their power in referenda and their strong representation in the Senate, block many progressive propositions. This is one of the reasons why Swiss politics are slower than politics in other comparable countries. But on the other hand, this system forces policy-makers to think their ideas over and has probably prevented Switzerland from many rash decisions. In this sense, the system might be one of the factors that has helped maintain the political stability that has lasted since the foundation of the Confederation in 1848—a remarkable feat given that it was a poor, rural country, which had just experienced a civil war that reflected a series of major political changes, social troubles and religious differences. 3. Recent Political Dynamics On 1 January 2000 a new federal constitution came into force replacing the constitution of 1874. This marked not the end of but a decisive step in a process initiated by the federal Parliament in 1965. The general feeling at that time was that the Swiss political system was not fit to cope with the far-reaching changes occurring in the post-World War II era. While not changing the meaning of the existing constitutional norms, the new constitution formulates them using modern language and re-structures their order. However, some new content was introduced as well, especially with respect to cooperative federalism (see the discussion on foreign policy below). Major institutional reforms of the judicial system and direct democracy were postponed. (Since then a proposal relating to judicial reform has been approved in a referendum but has not yet been implemented.) Most of the recent trends in Swiss federalism can be traced to the phenomenon of increasing and accelerating integration. Whereas at the global level integration is still mainly restricted to the economy, it has become a powerful political project at the European level. This has been changing the political landscape in Switzerland in recent years by providing a platform for the growth of the populist and nationalist-conservative Swiss People’s Party which is opposed to political integration at both the European and global levels. Until now this has not threatened the coalition government in place since 1959, but it has strained Swiss unity because it has created a cleavage between the French cantons which are in favour of political integration and the German-speaking ones which oppose it. For the time being it is still the policy of the Federal Council to join the European Union (EU), but after the implementation of bilateral treaties on air, road and rail traffic, free movement of persons, public procurement and technical barriers to trade, as well as agricultural products and research. The question remains how Swiss federalism can adapt to these developments without having to sacrifice its past accomplishments with respect to internal peace, political participation and welfare. This trend toward integration has implications for the following three policy fields: (1) the role of the cantons in foreign policy; (2) reform of fiscal equalization; and (3) reform of the political and administrative institutions and processes. Historically the Swiss cantons were full subjects under international law, but by the end of World War I they had given up even the very restricted powers in foreign affairs left to them by the federal constitution. Equally restricted was their participation in the foreign policy of the federal state. These restrictions were offset by their exceptionally high degree of independence within Switzerland (self-rule). Since the end of World War II this arrangement has come under strain because the international treaties signed by the federal government increasingly trench on the competencies of the cantons. The gradual but steady integration of Switzerland into Europe is making it necessary to find new solutions based on increased shared-rule in foreign policy to compensate for the loss of self-rule. A step in this direction has been made by the 1999 constitution, which enshrines the right of the cantons to participate in the making of foreign policy decisions. As well, in cases pertaining to their exclusive powers the cantons can participate in international negotiations. Furthermore there is a trend for the cantons and their associations to take full advantage of the existing possibilities for international cooperation (e.g., through membership in the Assembly of European Regions). The second trend relates to the reform of fiscal equalization. The Swiss fiscal system is marked by comparatively strong decentralization both of expenditures and revenues. Formal fiscal equalization at the federal level was introduced only in 1959, when the federal government was constitutionally given the mission to provide for fiscal equalization among the cantons. The fiscal equalization law has the objective of providing all cantons with the means necessary to carry out their functions and provide their citizens with a basic (but not equal) level of services. The main instrument to attain these objectives is the disbursement of federal grants and cantonal contributions to the funding of federal tasks according to a formula based on an index of financial capacities. The same index is used in revenue sharing and in determining cantonal contributions to social security. This system combines little actual equalization with lack of transparency regarding financial flows and decision making. It is being challenged because of its inefficiency and because of the shift in the relative capacity and burden of the cantons. Global integration is not only favouring those cantons with strong industrial and especially service-based economies, but is also affecting them through immigration and competitive pressure. European integration is weakening the autonomy of the cantons which are already heavily dependent on federal grants-in-aid. Thus, a joint working group has been formed to study the issue. It proposes to: (a) disentangle the respective responsibilities; (b) invigorate cooperation among the cantons with a institutionalized system of burden-sharing; (c) create new ways of cooperating in the areas of joint responsibility; and (d) create a new system of direct fiscal equalization. This system will on the one hand provide every canton with a minimal endowment through unconditional horizontal transfers between the cantons, complemented by federal transfers where necessary. On the other hand, it includes horizontal compensations for spill-overs and vertical support for extraordinary burdens (geographic, topographic or socio-demographic). Despite substantial criticism from various groups, among others the municipal governments, the joint working group plans to submit a bill to the government by autumn 2001. The third trend relates to the reform of political and administrative institutions and processes. The increased competitive pressure experienced by the cantons, but also by Switzerland as a whole, has led in many cases to the demand that the institutions developed over the decades be (radically) changed. First steps in this direction have been made through the introduction of elements of competition, outcome-orientation and flexibility into public management at all levels, and through the corporatization and privatization of public enterprises. From the perspective of Swiss federalism, however, potentially much more significant are the plans to merge cantons. The most advanced plan is the initiative to merge the Cantons of Geneva and Vaud which might be submitted to a popular vote simultaneously in both cantons in 2002. 4. Sources for Further Information Auer, Andreas, Giorgio Malinverni and Michel Hottelier, Droit constitutionnel suisse, Berne: Staempfli, 2000. Basta-Fleiner, Lidija R. and Thomas Fleiner (eds), Federalism and Multiethnic States – The Case of Switzerland, 2nd ed., Basel, Geneva, Munich: Helbing & Lichterhahn (Publications of the Institute of Federalism, Fribourg Switzerland PIFF, Vol. 16), 2000. Linder, Wolf, Swiss Democracy – Possible Solutions to Conflict in Multicultural Societies, 2nd ed., Hampshire and London: Macmillan Press Ltd., 1998 Steinberg, Jonathan, Why Switzerland? 2nd ed., Cambridge, UK: Cambridge University Press, 1996. Institute of Federalism: http://www.federalism.ch/