5. Federalism

Question 1

Define Federalism

Answer 1

Political concept describing the delicate balance of unity and diversity in a given entity.

• two or more orders of government (political units)
• it has mechanisms which faciliate intergovernmental cooperation
• combines shared rule and self-rule
• the federal structure is laid down in a legal document (constitution)

Shared rule:

• the political units participate in the federal government’s decision-making procedure

Self-rule:

• the units have a field of subject matters in which the possess some autonomy

Question 2

What are the functions of a federal organisation?

Answer 2

• Suited for states where individuals have particular identities (eg. geographic, linguistic, religious, cultureal or ethnic, purposes and values)
• Produces solutions that respond to the preferences and means of particular smaller communities (protects smaller communities’ identities)
• Enhances citizen participation and democratic control
• May lead to innovation
• Incorporated into the Swiss Constitution (art. 2 p. 2 cst.)

Question 3

Explain the principle of subsidiary

Answer 3

A state should be composed of different state levels:

• the smaller entities are each responsible for their own rules
• the principle must be observed in the allocation and performance of state tasks (art. 5a cst.)
• federation undertakes tasks that the cantons are unable to perform or which require direct regulation (art. 43a p. 1 cst)

Question 4

Explain the idea of Federal State and what are the relevant provisions?

Answer 4

It is a state with a federal organisation.

• it is composed of federal authority and consituent political units (eg. cantons or states)
• features a vertical distribution of powers (aims at protecting minorities)
• allows for different units to realise their own ideas and policies (limits the power of a federal state)

Provisions:

• Distribution of competencies between federal level and cantons (art. 3, art. 54, art. 125 cst.)
• participation of cantons in the decision-making on federal level (art. 45, art. 140, art. 141, art. 195 cst.)
• composition of the legislature with two chambers promoting the idea of a federal state (art. 148 p. 2 cst.)

Question 5

Explain the idea of Unitary State

Answer 5

• only one power governing the whole territory
• no vertical separation of power
• no shared competencies
• government top down
• powerful central bureaucracy
• weak regional structures

Question 6

Explain the idea of Confederation

Answer 6

Arrangement of several independent states by an international treaty.

• common purpose
• revision of a confederation must be approved unanimously
• only limited responsibility transferred to the organisation in order to realise the common purpose
• conferedation does not possess sovereign power as a state itself

Question 7

What are the three levels of Swiss Government and what are their characteristics?

Answer 7

1) the federation
2) the cantons
3) the communes

All levels:

• have their own powers
• own organisational structures
• own functions
• process of participation and cooperation flows vertically (protecting small communities) and horizontally (limiting state powers)

Question 8

What is a Federation constituted of?

Answer 8

Features of statehood:

• population (art. 1 cst.)
• territory (art. 1 cst.)
• authority: federal, judiciary and executive
• only assumes tasks which are transferred by the constitution (eg. foreign and security policy, custom and financial matters, national defence)

Question 9

What are Cantons’ characteristics and responsibilities?

Answer 9

Independent territories which decided to join together and transfer some of their competencies to the Swiss Federation.

• self-organising governmental units
• Art. 1 cst. still autonomous states
• have their own laws which must not conflict with the federal laws
• sovereign to the extent that is limited under art. 3 cst.

Responsibilities:

• health care
• education
• culture
• taxes to fund the areas of responsibilities

Question 10

Explain the tasks, organisation and finances of a cantonal autonomy.

Answer 10

The federation must respect autonomy of the cantons (art. 47 p. 1 cst.)

Tasks:

• tasks of their own (art. 47 p. 2 cst.)
• are allowed to organise their own affairs and take account of cantonal particularities (art. 46 p. 3 cst.)
• alocation of state tasks (art. 43a p. 1 cst.)
• subsidary (art. 5a cst.)
• duty of consideration (art. 44 p. 2 cst.)
• autonomy to fulfilling tasks (art. 43 cst.)

Organisation:

• federation respects organisation (art. 47 p. 2 cst.)
• limits (art. 51 cst.)
• organise:

+ political rights of citizens

+ referendum

+ initiatives

+ own parliment/gov/courts

Finances:

• federation must leave the cantons with adequate financial measures to finance their tasks (art. 47 p. 2 cst.)
• can collect other taxes within limits (art. 134 cst.)

Question 11

Explain the participation of cantons at a federal level in regards to referendums and initiatives.

Answer 11

Cantons participate in the decision-making specified by the constitution (art. 45 p. 1 cst.)

Referendum:

• majority of cantons and majority of citizens nationwide
• wants to become a member of an international organisation (art. 140 p. 1 cst.)
• optional referendum when 8 or more cantons request so (art. 141 cst.)

Initiative:

• can influence the legislative process through initiatives (art. 160 p. 1 cst.)
• only a petition not an actual initiative

Question 12

Information and consultation of cantons with the federation.

Answer 12

• a federation must inform cantons of its intentions fully and in good time
• it must consult cantons regarding matters which affect it (art. 45 p. 2 cst.)
• cantons must be consulted in preparatory phase of important matters with major implications (art. 147 cst.)

Question 13

Explain the principle of equality of cantons

Answer 13

Cantons are equal:

• same competencies
• same duties and obligations
• equal rights in decision-making

However:

• 6 cantons only have half cantonal vote (art. 142 p. 4, art. 140 p. 1 cst.)
• 6 cantons are represented by 1 delegate (art. 150 p. 2 cst.)
• other cantons have a full vote and 2 representatives in the council of states

Question 14

Explain what are communes and their responsibilities.

Answer 14

Smallest political units in Switzerland.

• Each canton defines the type of communes it recognises: organisation, powers and recources –> communal autonomy (art. 50 p. 1 cst.)
• Possible consequences (art. 50 p. 2 cst.)
• Purpose is to fulfill a specific task
• May assume tasks concerning local level

They are developed around certain core aspects:

• have freedom to choose their own political structure and administration (within cantonal legislation)
• have general residual powers
• have their own financial resources and levy taces
• are subjects to cantonal monitoring

Question 15

What are the 3 Federal Guarantees

Answer 15

1. The Federation guarantees cantonal constitutions (art. 51 cst.)
2. The Federation protects the constitutional order of the cantons (art. 52 cst.)
3. The Federation guarantees the existance and territory of the cantons (art. 53 cst.)

Question 16

What are the requirements of a cantonal constitution?

Answer 16

1. To be democratic (art. 51 p. 1 cst.)
2. Cannot contain provisions that are contrary to the federal law (art. 51 p. 2 cst.)
3. Needs federal approval (art. 51 p. 2 cst.)
4. Needs to be passed as a simple federal decree (art. 163 p. 2 cst.)

Question 17

Explain the protection of the constitutional order in the cantons.

Answer 17

• constitutional order of the cantons must be protected by the federation eg. when disrupted or under a threat (art. 52 p. 1 cst.)
• duty to support the federation and the cantons (art. 44 p. 1, p. 2 cst
• safeguarding the inner safety withi a canton (art. 42 p. 2 cst.)

Question 18

Protecting existance and territory of the cantons

Answer 18

1. Modification of the existance of the cantons (art. 53 p. 2 cst.). Requires agreement of:
   - concerned population
   - concerned cantons
   - Swiss population and majority of cantons
2. Modification in the territory of cantons (art. 53 p. 3 cst.). Requires agreement of:
   - concerned population
   - concerned cantons
   - Federal Assembly in the form of a federal decree
3. Inter-cantonal boundry adjustment (art. 54 p. 4 cst.). Requires agreement of:
   - a treaty between the concerned cantons (notification to the federation) (art. 48 cst.)
   - procedure of approbal by the Federal Assembly only if a canton or the Federal Council raises objection (art. 172 p. 3 cst.)

Question 19

Distribution of Comepetencies

Answer 19

The federal constitution lists the federal competencies explicitly, while the cantons retain all residual powers (Art. 3 and Art. 42 Cst).

• The assignment of the competencies in the constitution is thus complete and conclusive.
• In the absence of specific authorization in the constitution for federal competencies, the task remains within the residual power of the cantons.

Question 20

List and briefly explain the competencies

Answer 20

Competencies:

1. Comprehensive competency: the federation may enact any legal regulation for any matter pertaining to the field it considers appropriate. (Art. 99, Art. 100, Art. 82 Cst.)
2. Fragmentary competency: the federation is only authorized to regulate a fragment, i.e. a certain part, of a subject matter. (Art. 128, Art. 130, Art. 131 Cst.)
3. Framework competency: where the “federation shall lay down principles” the federal competencies are restricted to passing a skeletal law, leaving the cantons enough latitude for detailed regulations tailored for their special needs. (Art. 129 Cst.)
4. Promotion competency: the federation is authorized to “support” and “encourage” efforts in areas for which the cantons are primairly responsible. (Art. 78 Cst.)

Question 21

List and briefly explain the effects of the competencies

Answer 21

Effects:

1. Subsquently derogating effect
2. Originally derogating effect
3. Parallel effect

Question 22

How is the Federal law implemented?

Answer 22

1. The federation can implement the federal law by itself (art. 46-47 cst.):
   - foreign relations (art. 166, 184 cst.)
   - customs clearance (art. 133 cst.)
   - postal and rail services (art. 92, 87 cst.)
2. Can entrust the implementation of federal law to smaller units (the Swiss system generally follows this approach) (art. 46-47 cst.)
   - the federation must ensure financial resources (art. 47 p. 2 cst.)

Question 23

Describe the cooperation between the federation and the cantons

Answer 23

Federation and cantons depend on each other in carrying out their duties and must support each other. (art. 44 cst.)

Disputes between cantons or between cantons and the federation must be resolved by negotiation or mediation.

However, if a dispute cannot be solved though negotiation and meduation, means for judicial resolutoin must be provided.

Question 24

Define the intercantonal treaties and how they are governed

Answer 24

Intercantonal treaties are agreements between two or more cantons concerning a subject matter falling within their domains (art. 48-48a cst.):

• are governed by public law
• are to be disctinguished from contracts under private law
• represent horizontal cooperative federalism

Question 25

What is the primacy of federal law?

Answer 25

Federal law overrides state law, cantonal law, statutory law and federal ordinances (art. 49 p. 1 cst.)

International law is a part of federal law. There is a monistic approach in the Swiss system. International treaty ratified by Switzerland, as well as an ordinance issued by the federal government takes precedence over cantonal constitutional law.

Question 26

When is the primacy of the federal law important?

Answer 26

When resolving conflicts between the federal legal order and cantonal legal orders.

They most likely occur when a subject matter falls within both federal and cantonal powers and the extent or effect of the federal power is not clear.

The federal administration examins the bill and decided whether it is within the federal competencies.

Question 27

When is the federal supervision necessary?

Answer 27

• Federation must ensure that cantins comply with federal law (art. 49 p. 2 cst.)
• If a task is delegated, the federation must make sure that it is correctly fulfilled
• When a task is in the residual power of the cantons, the federation must ensure that they do not violate the federal law
• Federal supervision is limited to question of legality, excluding control over discretionary decisions
• Federal supervision rests with the Federal Council (art. 182 p. 2, art. 186 p. 4 cst.)
• Can be delegated to federal departments or administrative units (art. 177 p. 3 cst.)
• Some supervision falls under the Federal Assembly (art. 172 p. 2 cst.) or the Federal Supreme Court (Art. 15 DCBA)

There are various supervisory measure:

• objections (of specific decisions)
• annulment (in case of violation of federal law)
• directives
• statutory obligations
• inspections
• obligation to have the statutes approved by federal agency

Question 28

When is the federal coercion necessary?

Answer 28

Coercive measures can be taken by:

• Federal Council (art. 182 p. 2 or art. 186 p. 4 cst.)
• Federal Assembly (art. 173 p. 1 lit. e cst.)

Must respect principle of proportionality and cannot exceed the degree of constraint necessary to implement a federal obligation

They have various forms:

• substitution
• cutting subsidies
• intervention

Question 29

What are the limits and challenges of the Swiss federal system?

Answer 29

There has been a transfer of tasks to the federal level

–> shift of competencies from the cantonal to federal level

–> not many areas in which the cantons and communes are completely and absolutely autonomous

International or supranational organisations: Switzerland needs close economic cooperation with the EU.

–> international actos shape decisions on international level

–> single state and its federal units lose responsibilities

–> it is important to ensure participaion of federal units, even in international decision-making process

Federalism is challenged by interference with other constitutional principles:

–> there can be a collision between principle of democracy and principle of federalism

–> equality for cantons, equality for people (1 vote for each canton, 1 vote for each person)

–> eg. popular vote: majority of people and cantons cannot coincide. When smallest 11.5 cantons vote together, they can constitute a blocking in federalistic majority, although it only represents a small democratic minority