Constitution of Switzerland
The Federal Council
It is unique among the constitution of the World. A system of government which falls in a class by itself, which differs fundamentally from the presidential and cabinet types, but which combines certain features of both, is that of Switzerland.
1. Federal council: The federal council consists of seven members. It is elected by the two houses of the federal assembly. It is elected for a term of four years by the two chamber of the federal assembly in a joint session. It is not necessary according to the constitution that the members of the council should be chosen from the federal assembly.
2. The president and vice president: There is a president of the council. He is one of the seven councilors. The president of the council has no more power than the other councilors. The council has a vice president. The federal assembly nominates them for a term of one year.
3. Quorum: Four members' constitution a quorum for the sittings of the council.
Powers of the federal council:
The powers of the federal council may be described under three heads: executive, legislative and judicial.
1. Executive powers: The council is the head of the administration. It enforces laws and decrees of the confederation. It looks after the internal security, peace and order of the country. All federal appointments except a few are made by the council like Tribunal and other authorities. It administers the finances of the federation, made budget and submits accounts of receipts and expenditure. It manages the foreign affairs, making agreement with the foreign countries and also ensures external security.
2. Legislative powers: It has an extensive power. The member of the council have right to speak in either house of the federal assembly, but they have no right to vote. It prepares drafts of legislative measures and submits them to the Assembly for its consideration. It gives advice to the houses of the assembly and to the cantons on the measures they refer to it. The federal council submits an account of its work to the federal assembly in each ordinary session presents a report on the internal and external position of the confederation and recommends for its consideration the measures for the welfare of the country.
3. Judicial powers: They also perform some judicial powers, mostly the cases arising out of administrative law. It hears appeals of private citizens against the decisions of various administrative departments. It also goes against the decisions of the canton government in certain matters.
Important Features of the federal executive:
1. Plural executive: There is no head of the executive. All the members of the council possess equal powers.
2. Parliamentary system: Its members are chosen by the legislature. They have right to present in the legislature, take part in its proceedings and initiate legislative measures and subject to interpellation in both house and carry out wishes of the legislature.
3. Non parliamentary system: Its members are not members of the legislature and the term of office is fixed, they can't be removed by the legislature. It has no prime minister and doesn’t function according to the principle of joint responsibility.
4. Non party system: Its members don’t belong to the majority party in the legislature or any of its chambers. They are elected from different parties and groups. Because of the non party system character of the council its members are re – elected if they are willing to serve.
The Federal Assembly
Composition and organization:
The legislature of Switzerland is called Federal Assembly. It is consist to chambers Council of the State and National council. The former has 44 members and the latter 200 members.
1. Upper chamber: It is called Council of the States, it represent the cantons. It is consists of 46 members, two from each full canton and one from half canton. The cantons determine the method of choice and term of office of the members. There is no uniform method of election, nor is the term of office the same for all members. The council elects its chairman and vice chairman form amongst its own members for every ordinary and extraordinary session. The chairman has the right to vote like other members in the elections in which the members of the council have a right to participate.
2. Lower chamber: It is known as the National council. It represents the people. It is consists of two hundred members. Its members are elected directly by proportional representation. Every Swiss citizen who has completed the age of 20 has the right to vote and qualified to be a member of the National council and etc... The term is four years. It can't be dissolved earlier. It elects its chairman and vice chairman from among its members for every ordinary and extraordinary session.
Both chambers must meet at least once a year. Extraordinary sessions can be convened by the Federal Council on request by one-fourth of the members of the National Council or five Cantons. The two houses also hold joint sittings for certain purposes.
Powers of the two houses:
The chambers have equal powers. This is a unique feature of the Swiss legislature. In theory the approval of both the houses are important but in practice the National council has more power than the Council of states.
Powers of the Federal Assembly: The Federal Assembly is supreme so long as it retains the confidence of the people. Its decisions are not subject to any executive or judicial veto. The powers of the Assembly are as follows:
1. To pass laws on all matters which the constitution assigns to federal authorities.
2. To pass laws determining the organization and mode of election of federal authorities.
3. To elect the Federal Council, the federal tribunal, the chancellor and the commander in chief of the federal army.
4. To approve treaties with foreign powers, to declare war and conclude peace.
5. To adopt measures for the maintenance of external security, independence and neutrality of the confederation.
6. To adopt measures for the guarantee of the territory and constitution of the cantons.
7. To control the federal army.
8. To enact the annual budget, and approve state accounts and decrees authorizing loans.
9. To supervise the federal administration in general and the federal Tribunal.
10. To hear appeals against the decisions of the federal council in administrative disputers.
11. To decide conflicts of jurisdiction between the federal authorities.
12. Revision or amendment of the constitution of the confederation.
The Federal Tribunal:
It establishes a federal Tribunal for the administration of justice in federal matters. The members of the Tribunal are elected by the Federal Assembly. It is provided in the constitution that three national languages should be represented in the Tribunal. Any Swiss citizen eligible for election to the National Council can be chosen a member of the Tribunal, provided that members of the Federal Assembly and those of the Federal Council and employees of the confederation can't be members of the Tribunal. Members of the Tribunal can't hold another office, be it in the service of the confederation, or in the Cantons, nor can they engage in any other profession or industry. The number of judges, their term and organization of the Tribunal are determined by law of the Federal Assembly. At present the term of the judges is six years, but they are often re-elected.
(A) The civil jurisdiction of the federal Tribunal: It covers the following:
1. All the civil suits between the confederation and the Cantons or between the Cantons themselves.
2. All suits between the confederation and corporations or private individuals, if these corporations and individuals are plaintiffs and the dispute is so important that it requires adjudication under federal legislation.
3. The disputed between a canton and an individual or a corporation if either party demands it and the dispute is so important as to be determined by federal legislation.
4. Disputes concerning loss of nationality and disputes between communes of different Cantons concerning the question of citizenship.
5. Other disputes if parties concerning refer them to it and the matter is as important as shall be determined by federal legislation.
(B) Criminal jurisdiction: The Tribunal has criminal jurisdiction in the following:
1. Cases of the high treason against the confederation, revolt and violence against federal authorities.
2. Crimes and offences against international law.
3. Political crimes and offences which are the cause or consequence of disturbances leading to armed federal intervention.
4. Crimes committed by officials appointed by a federal authority when brought before the Tribunal by that authority.
(C) Limited constitutional jurisdiction: The Tribunal has limited constitutional jurisdiction in the following matters:
1. Conflicts of competence between the federal authority on the one hand and authorities of the cantons on the other.
2. Disputes between cantons involving public law.
3. Disputer concerning violation of the rights of the citizens under federal or cantonal constitutions by cantonal statutes.
The most salient feature of the Swiss constitution is what is known as the institution of direct democracy. The instruments of direct democracy are referendum and initiative. The referendum consists of submission to the people, for approval or rejection, of a law passed by the legislature. The initiative is the right of the people to initiate or propose a piece of legislation.
The referendum is two kinds: obligatory (compulsory) and optional. It is compulsory when a legislative measure passed by the legislature must be submitted for the approval of the electorate. It is optional when a law passed by the legislature need be submitted to the people only on petition from a prescribed number of the qualified voters. The referendum and the initiative are used both at the centre and in the Cantons.
Referendum at the Center:
1. Compulsory referendum: In the Federation the referendum is compulsory in respect of constitutional changes. If both houses of the federal assembly agree on a constitutional amendment, it must be submitted to the voters, and becomes law if approved not only by a majority of the qualified voters but also by a majority of Cantons.
2. Optional Referendum: In the Federation the referendum is optional in respect of ordinary laws.
Referendum in the Cantons:
In the cantons the compulsory form of referendum is in use for amendments to the constitution, and in several for the adoption of ordinary laws. The optional form of referendum is in use in almost all the Cantons for ordinary laws.
The initiative is in use in the federation for constitutional law. If 50,000 voters desire a total revision of the constitution the question whether such a revision should be made or not is submitted to the citizens. If a majority of the voters favour the revision, both houses of the Federal Assembly are dissolved and fresh elections are held. The newly elected assembly proceeds to consider the proposed revision. When approved by both houses it is submitted to the citizens for their approval and becomes law if approved by a majority of voters and by a majority of the Cantons.
Scope of Initiative:
The initiative is not used in the federation for ordinary laws. The initiative is in use in all cantons, except one, for constitutional laws and in all, except a few, for ordinary legislation. The procedure in the cantons is almost the same as in the Federation.
Merits of Direct Democracy:
1. More effective popular sovereignty: Democracy is based on the principle of popular sovereignty. Direct democracy as embodied in the institutions of the referendum and initiative upholds the principle of popular sovereignty more effectively than the institutions of representative democracy. People directly take part in legislation. Laws made by them express their will more authentically than those made by their representatives. People know their own interests better than their representatives. Therefore, laws made by them are likely to serve their interests more effectively than those made by the legislature.
2. Minimum evils of party system: The referendum and the initiative minimize the evils of the party system. In many countries party system has been responsible for the failure of democracy. Parties and their leaders often act from partisan motives, ignore national interests and the wishes of the people, misguide and confuse the masses by their partisan propaganda and even corrupt them by means of patronage they command. Direct democracy reduces these evils to the minimum. Ultimately, it is the people who decide whether they need a particular legislative measure or not.
3. Safeguards the interest of the people: Direct democracy safeguards the interests of the people against the vagaries, high handedness, arrogance and incompetence of the legislature. In every democracy the legislature is dominated by majority party which does not always reflect the public opinion correctly. The dominating party often represents the minority opinion of the public. Direct democracy eliminates the chance of a law being passed which is not approved by a majority of the citizens.
4. Inculcates responsibility and patriotism: Direct democracy inculcates in the people a sense of responsibility and strengthens their sentiment of patriotism. Knowing they themselves are architects of their fate, they behave responsibly. Besides it gives them valuable political education and familiarizes them with intricacies of legislation.
5. Damper to radical polities: Direct democracy acts as a damper to radical politics, minimizes the possibility of political upheavals and discourages unbridled demagogy. People know that they can get a law if and when they want it. They also know that the legislature can't impose upon them a law which they do not like. In a situation like this political leaders hardly get a chance to fan the passions of the masses.
Demerits of Direct democracy:
1. Less important of legislature: It is said that the referendum and the initiative undermine the power and prestige of the legislature. It is obvious that when the people themselves legislate, the legislature is bound to lose its important.
2. Legislation requires experts: Another argument against direct democracy is that in the modern society legislation requires expert and technical knowledge which the masses are not supposed to possess. Naturally the laws initiated by the people are bound to be slipshod, ambiguous and incoherent.
3. Unnecessary delay by referendum: It is argued that the referendum involves unnecessary delay often measures of urgent importance are delayed which often leads to harmful consequences.
4. Slow social transformation: Finally it is said that people being conservative by temperament laws aimed at eradicating deep-rooted social evils have no chance of being enacted. Direct democracy thus slows down the tempo of social transformation.