Switzerland

Switzerland has been a federal state since 1848. Authority is shared

between the Confederation (central state), the 26 cantons (federal
states) and the 2352 communes. Each of these three levels has
legislative powers to draw up laws and regulations, and executive
powers to implement them. The Confederation and the cantons also
have judiciary powers to ensure that the laws are enforced.1
Generally, the Confederations authority is restricted to the powers
expressly conferred on it by the Federal Constitution. All other tasks
such as education, hospitals and policing are the responsibility of
the cantons, which thus enjoy considerable autonomy. The
communes have tasks which are expressly assigned to them by the
Confederation or by the canton to which they belong, but they can
also legislate when cantonal law does not specifically refer to issues
that affect them directly.2
Powers of the Federal Government and the Cantons
Two fundamental principles govern the distribution of powers
between the Confederation and the cantons. One is the "Kompetenz
Kompetenz" of the Confederation, which is a basic principle of any
federal state. In the context of this competence, the Confederation
can, by means of change to the Constitution (in Switzerland only
with the agreement of a majority of the people and of the cantons),
itself determine which tasks are allocated to it. According to the new
Federal Constitution, the Confederation in such cases must bear in
mind the principle of subsidiarity. "The confederation shall assume
the tasks which require uniform regulation and the Confederation
shall leave the Cantons as large a space of action as possible, and
shall take their particularities into account.3
The second fundamental principle is often referred to as the basic
federal norm of Switzerland. It states: "The Cantons are sovereign
insofar as their sovereignty is not limited by the Federal
Constitution; they shall exercise all rights which are not transferred
to the Confederation." Retention of this article was one of the main
concerns of the cantons during the formulation of the new
Constitution. The draft Constitution of 1977 which proposed an
"open" Constitution, in which separation of competences between
Confederation and cantons was to be derived primarily from general
objectives and "main responsibilities" ran up against the determined
1 https://www.ch.ch/en/swiss-federalism/
2 Ibid
3 Koller, Arnold, Introduction to the Swiss Model of Federalism

opposition of the cantons. Thus, the new Constitution therefore

stresses the sovereignty of the cantons as follows: "The Cantons
shall define the tasks which they shall accomplish within the
framework of their powers." Further, "The Confederation shall
respect the autonomy of the Cantons", meaning their autonomy in
the areas of tasks, finance and organization.4
The central elements of the Swiss federal state or Canton are: as
follows:
1.The autonomy and sovereignty of the cantons, which are not only
decentralized administrative units of the Federal Government but
also constituent states of the confederation;
2. The allocation of responsibilities between federal government
and cantons according to the basic rule set out in Art. 3 of the
Federal Constitution, according to which the Confederation is
competent only for matters which are attributed to it by the
Constitution;
3. Federalism based on partnership, consisting of collaboration in
solidarity with one another and mutual consideration between the
Confederation and the cantons;
4. Participative federalism, whereby the cantons collaborate in
shaping the will of the Confederation;
5. "Vollzugsfderalismus", whereby the implementation of federal
law is primarily in the competence of the cantons;
6. The tree-tier structure of the state, with Confederation, cantons
and municipalities, whereby the organization of the municipalities is
a matter for the cantons, but the Confederation must take into
consideration the effects of its actions on the municipalities
7.
Financial federalism, whereby the taxing powers are divided
up between the Confederation and the Cantons and the
Confederation shall leave sufficient sources of financing to the
Cantons and promote financial equalization among the Cantons.
The cantons enjoy the right to establish their proper governmental
system, to decide on the scope of autonomy of their municipalities,
to determine the scope of direct democracy granted to the citizens,
and to organize their own judiciary. In addition, cantons decide on
their official languages (German, French, Italian and Romansh). The
only limit of cantonal autonomy with regard to their freedom to
determine their governmental system is their obligation to grant the
cantonal people the power to make the constitution and to comply
with federal law.5
4 Ibid
5 Fleiner, Thomas. The Current Situation of Federalism in
Switzerland

Within their range of powers the cantons also had to find solutions
to the conflicts around diversity within the canton, in particular with
regard to the different religious and language communities.
Moreover, cantons have the power to organize themselves. For this
reason there are important differences among the cantons with
regard to the scope of autonomy of municipalities, including districts
and agglomerations. Municipalities of cantons influenced by French
political culture are granted less powers in comparison to Germanspeaking cantons.6
Besides their power to organize themselves by their own
constitution, cantons have the power and responsibility to provide
for security of the people, to guarantee mandatory primary
education, to promote and protect their culture, to protect the
environment and implement federal environmental standards, to
build roads, and to provide, within the limits of the federal
legislation, for cantonal development with regard to environment
protection, housing, agriculture, and economy. The cantons are also
the holders of public water and water resources (including hydroenergy), of forests, game, and fishing. The new constitution even
enlarged cantonal powers in the field of foreign relations. Cantons
are now expressly empowered to conclude treaties with other local
authorities on all issues which are within the scope of their
autonomy.7
Constitutional Framework
Executive
The Swiss Federal Council is a seven-member executive council that
heads the federal administration, operating as a combination
cabinet and collective presidency. Any Swiss citizen eligible to be a
member of the National Council can be elected; candidates do not
have to register for the election, or to actually be members of the
National Council. The Federal Council is elected by the Federal
Assembly for a four-year term.
The largely ceremonial President and Vice President of the
Confederation are elected by the Federal Assembly from among the
members of the Federal Council for one-year term that run
concurrently. The President has almost no powers over and above
his or her six colleagues, but undertakes representative functions
normally performed by a president or prime minister in singleexecutive systems.
6 Ibid
7 Ibid

The most unusual characteristic of the Federal Council, as the Swiss

executive, is that it is a collegial body, which decides collectively on
all important issues. The seven members are elected as equals and
without any attribution to a particular department. After their
election, the members of the Federal Council decide on the
redistribution of the departments. They state their preference in
order of seniority; however, if there is a contest, the majority
principle applies. There is no permanent head of government with
special prerogatives. Every year Parliament elects one of the seven
councillors as president of the federation. The president is merely
primus inter pares, with no special political privileges and mainly
formal duties. Essentially, the role of the president is to chair the
meetings of the collegiate body. The Federal Council, as a collective
body, is the Swiss head of state.8
In fact, the diversity of Switzerland probably would not permit a
head of state constituted by a single person. The Swiss system
avoids the risk of concentrating power in the hands of a strong
president, while the collegiate character of the Federal Council
corresponds to the needs of a multicultural society. Many observers
note that, in consequence, there is little continuity of purpose and
that government action very often lacks coherence.
Legislative
Like most federal countries, Switzerland has a two-chamber federal
parliament with one chamber representing the population and one
chamber representing the federal states.

The National Council has 200 members and is elected every four
years according to a specially sophisticated version of the
proportional election system allowing for the proportional
representation of political parties as well as for the selection of
personalities. Every of the 26 cantons is a constituency, so the
proportional representation is not absolute: a few small cantons may
only send one deputee, while the largest cantons have up to about
30 seats.
The Council of States has 46 members, two per full and one per
half canton. The cantons may decide themselves in their cantonal
constitution who is going to represent them and how long the period
of office is. In most cantons the members of the Council of States
are elected in a majority election on the same day the election for
the National Council takes place.9
8http://www.thomasfleiner.ch/files/categories/IntensivkursII/Switzerla
ndg3.pdf
9 http://direct-democracy.geschichte-schweiz.ch/switzerlandspolitical-systems.html

Judicial
With regard to the Judiciary, Switzerland has followed the concept of
federalism within the civil law system. Accordingly, unlike in the US
and in some other common law federal countries, there is no
dualism between the federal and the state judiciary. There is in
Switzerland only one judiciary which has the power to apply federal
and cantonal law. Unlike in Belgium where the Judiciary is
centralized, the main pillar of the Swiss judiciary are the cantonal
courts organized by the cantons. The cantonal courts have the
power to interpret and to apply federal law as well as the respective
cantonal law. The Federal Supreme Court has mainly an appellate
function with regard to the cantonal courts.10
Cantonal Courts
Civil law, criminal law, and even federal administrative law
implemented by cantonal legislation are first controlled by cantonal
courts. The cantons have the constitutional power and responsibility
to implement federal law8. With regard to criminal law, it is the
cantonal prosecutor who has to prosecute persons suspected of
having violated criminal law and to charge them before the cantonal
judge for having breached criminal law.
However, the judicial system of Switzerland has its flaw because the
Federal Supreme Court currently has no power to review the
constitutionality of federal legislation. Moreover, in general it has no
power to review acts of the federal parliament and of the federal
council (executive). The Federal Supreme Court of Switzerland
cannot review federal statutes which might violate constitutionally
guaranteed cantonal powers. There is no court supervision which
could impede the federal legislator intervening in constitutionally
guaranteed cantonal sovereignty. However, Swiss history has shown
that the popular power to ask for a referendum with regard to
federal legislation has had an important impact in preventing the
Swiss legislator from violating cantonal powers guaranteed by the
constitution.11

10 Fleiner, Thomas. The Current Situation of Federalism in

Switzerland
11 Ibid