Genesis of a Swiss Law

genesis of swiss law

29 Nov 2018 Genesis of a Swiss Law

How do new laws come about in Switzerland?

 

Switzerland is a federal state: state powers (i.e. executive, legislative and judiciary) are shared between the federal government, the cantons and the communes. Federalism makes it possible for Switzerland to exist as one entity – in spite of four linguistic cultures and varying regional characteristics.

 

These cultural and linguistic specificities as well as the direct democracy principle, allowing Swiss voters to propose a referendum on draft laws under certain conditions, make introducing new legislation a complex and a sometimes time-consuming business.

 

This newsletter aims to provide a brief overview on how new laws come about in Switzerland.


1. General Information

 

The Federal Council is the Swiss government (executive), which deals with the ongoing task of governing the country and implements the laws and other decisions adopted by Parliament. Each of the seven members of the Federal Council is head of one of the seven federal departments.

 

The main role of Parliament is to enact legislation and monitor the activities of the Federal Council (executive) and the Federal Supreme Court (judiciary). Switzerland has – like most democratic nations – a two-chamber Parliament. The two chambers have equal powers[1] and together form the Federal Assembly[2].

 

The chambers are the following:

 

  • the Council of States, which has 46 members representing the 26 cantons; and
  • the National Council, or the second chamber, which has 200 members, elected through a system of proportional representation, represents the People.

 

The two Chambers have identical power (system known as perfect bicameralism). Thus, they must reach identical decisions in order for a bill or any act to pass.

 

The members of each Chamber are divided into standing committees, each with a specific area of expertise, such as finance, foreign affairs, transport and telecommunications, social security and health, etc.

 

Another characteristic of the Swiss legislative organisation is that it is a part-time Parliament: the Members of Parliament from both chambers (“MPs”) retain their usual job, in addition to fulfilling their tasks as representatives. The MPs meet once every three months for three-week sessions.

 

As in the entire administration, the sessions are held in French, German, and Italian –three of the four official Swiss languages.

 

The following acts apply to the legislative process: Federal Constitution of the Swiss Confederation of 18 April 1999 (“Cst.”) (indeed, Switzerland has a written Constitution), Parliament Act of 13 December 2002 (“ParlA”), Consultation Procedure Act of 18 March 2005 (“CPA”), and Publications Act of 18 June 2004 (“PublA”).

 

2. Initial Phase

 

The legislative process can be initiated either by the Federal Council[3], the Federal Assembly through a motion, via a postulate or a parliamentary initiative[4] or by the cantons.[5] The People do not have the right to submit an initiative for a draft bill to the Federal Assembly[6].

 

As of today, the majority of legislative projects are initiated by the Federal Council. For this reason, we will focus on the process for a draft submitted by the Federal Council. However, it is to be noted that the number of initiatives submitted by the Parliament has been increasing over the past decades.[7]

 

The first step involves the competent federal department on the matter preparing a draft bill. This draft bill has to be materially accurate, implementable and publicly acceptable.[8] In order to reach this goal, the department consults the cantons, the political parties, associations and other relevant stakeholders.[9]

 

After the consultation procedure, the Federal Councillor in charge of the department, followed by the Federal Council as a whole, approve the draft and submit it to the Parliament, initiating the parliamentary phase of the making of a law.[10]

 

3. Parliamentary Phase

 

The parliamentary phases are the following:

 

  • The first step after receiving the draft bill by the Parliament is to determine which chamber should first be seized on the matter. The decision is made by the Presidents of the two chambers.[11]
  • Once it has been decided which chamber will debate on the draft act first, the draft is attributed to the relevant standing committee of this chamber. After a new phase of consultation, during which experts and stakeholders are consulted again, the committee submits a new draft proposal to its chamber. The chamber then votes on the introduction of the bill.[12] If it is approved, each article of the draft bill is discussed. Afterwards, the MPs proceed to vote on the whole bill.[13]
  • The same procedure takes place in the other chamber of Parliament. The only difference is that the members of the second chamber have access to both the draft submitted by the Federal Council and the one voted on by the first chamber.
  • If the draft voted by the two chambers are not identical, the phase of the resolution of differences initiates.[14] In each chamber, the draft bill is discussed again, with the objective of reaching an agreement on the point(s) on which the chambers disagree. If, after each chamber has discussed the draft bill thrice, a disagreement persists, a Conciliation Committee – constituted of members of the committees from both Chambers[15] – is called in order to suggest a possible compromise (“reconciliation procedure”). If no agreement can be reached between the chambers, the draft is abandoned. Indeed, because they have identical power and mission, the two chambers of Parliament must reach an identical decision for an act to pass.[16]
  • When both chambers of Parliament have the same draft bill or have found an agreement after a reconciliation procedure, they proceed separately to a final vote.
  • The act, once accepted by both chambers, is then published in the Federal Gazette[17] –the Confederation’s official organ in which a diversity of documents are published.[18] The publication in the Federal Gazette sets the start of the time period in which an optional referendum can be requested.

 

4. Vote and Entry into Force

 

According to art. 141 al. 1 let. a Cst., “if within 100 days of the official publication of the enactment any 50,000 persons eligible to vote or any eight Cantons request it, [federal acts] shall be submitted to a vote of the People”. The new law comes into force if a majority of those voting say yes (a simple majority). If the majority vote no, the current law continues to apply. The right to request a referendum is an important element in Swiss direct democracy.

 

If, after 100 days, no referendum is requested or if it is and the referendum approves the new law, the new law is published and comes into force. It is published in the Federal Gazette and in the Official Compilation of Federal Legislation, in which all federal bills are published in chronological order.[19] They are published simultaneously in all three national languages, each version being equally binding.[20] The new laws are sometimes also published in English, as an unofficial version.

 

5. Conclusion

 

Switzerland is known worldwide for its open and integrative political system. The making of laws is no exception: throughout the different phases of the process, a high number of actors are involved, in order to come out with a bill that will be socially and politically accepted, aiming to reach a consensus. The only downside of this highly participative procedure is its length: the making of a law takes a minimum of 12 months, and has been known to take over ten years.

 

 

 

Valeska

 

Author:

Valeska Divis

Commercial and contractual; private equity structuring, corporate banking and immigration law.

 

 

 

 

 

 

Footnote references

[1] i.e. Such as the United States Congress, where the Senate and House of Representatives have identical powers. In Europe, Switzerland is the only county that has this system.

[2] With regard to the two chambers having completely equal rights, the Federal Assembly will assign the item of business either to the Council of State or the National Council as the first chamber to debate the issue.

[3] Article 181 Cst.

[4] Article 160 al. 1 Cst. and articles 107, 120, art 123 ParlA.

[5] Article 16 al. 1 Cst.

[6] People can launch a popular initiative to demand a change to the Constitution – but not to any other form of law.

[7] P-H. Frélechoz, Le processus législatif au niveau fédéral – Le Parlement : L’atelier du droit, Université de Genève, p. 37.

[8] Article 2 al. 2 CPA.

[9] Article 2 al 1 CPA.

[10] Parliamentary Services, The Federal Assembly leaflet.

[11] Article 84 ParlA.

[12] Article 74 ParIA.

[13] When the draft bill is the result of a parliamentary initiative, the process is very similar. The main difference is that the draft is first elaborated by the committee of the Chamber and then submitted to the Federal Council. In addition, if the Chamber from which the draft proposal emanates rejects it, it is liquidated and the other Chamber does not discuss it.

[14] Article 89ff. ParlA.

[15] C. Kaufmann/J. Chan, Legislative processes in China, Hong Kong and Switzerland, University of Zurich (2008), p.11.

[16] Parliamentary Services, The Federal Assembly – A Powerpoint Presentation (August 2018), p. 14.

[17] Article 14 al. 1 PublA; article 13 al. 1 let. e PublA.

[18] A. Dépraz/A. Vallélian, Recherche juridique informatisée, PDF théorique, v. 9.0., Université de Genève, p. 2-9. (cited: Dépraz/Vallélian)

[19] Dépraz/Vallélian, p. 2-10.



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