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JURIST's Switzerland Correspondent is Cyrill P. Rigamonti, Esq., Dr.iur., University of Zurich Faculty of Law.
The New Swiss Constitution and Reform of the Federal Judiciary

[Zurich; Special to JURIST] This first report on the latest developments in Swiss law will focus on the recent changes in constitutional law and the subject matter of the upcoming ballot of May 21, 2000, when the Swiss people will vote on the adoption of seven bilateral agreements negotiated by the Swiss Federal Council with the European Union. An overview and discussion of recent changes in federal statutory law will be reserved for a later date.

In order to understand the changes in Swiss Constitutional law and the legal system, it is important to be familiar with the structure of the Swiss Federal System. Switzerland is a confederation made up of 26 cantons (similar to states in the U.S. system). The Swiss federal government (the Swiss Confederation) consists of three branches the Federal Assembly, a bicameral parliament; the Federal Council, an executive body of seven ministers elected by the Federal Assembly; and the Federal Tribunal, whose 30 judges and 15 substitute judges are elected by the Federal Assembly. More detailed information in English on the Swiss government is available on the Swiss Embassy in Washington's homepage at http://www.swissemb.org/legal.

A. New Swiss Constitution (January 1, 2000)

Switzerland started the new millennium with a new legal foundation. On January 1, 2000, the new Swiss Federal Constitution entered into force, replacing the Constitution of 1874. Already in the 1970s, the Federal Council created an expert commission to draft a new constitution, since it was widely recognized that reform of the constitutional system was necessary in order to maintain the efficient functioning of the federal government. Moreover, the Constitution of 1874 could no longer be considered a transparent codification of Swiss Constitutional law. It had undergone over 140 revisions; Switzerland does not have an amendment system, so changes were actually incorporated into the text of the article which was being modified. In addition, the growing impact of international law and the evolution of constitutional law as interpreted in the Federal Tribunal's case law were not reflected in the text of the Constitution of 1874. For example, some fundamental rights, such as the freedom of speech and the freedom of assembly, were not explicitly mentioned, even though these rights were respected in practice and acknowledged by the Federal Tribunal as being implied in the Constitution.

Therefore, the Federal Council devised a plan to reform the Swiss constitutional system. However, it soon realized that a substantive revision of the Constitution of 1874 addressing all relevant issues at once was not feasible as a political matter, and, therefore, deemed it best to break the reform project down into several smaller steps. In line with a Federal Assembly mandate of 1987, the Federal Council first concentrated on formalities and put forth a proposal to formally revise the Constitution of 1874 in order to "re-codify" Swiss constitutional law. In other words, the first step of the reform project was to formally "update" the written constitution rather than to change its substance, so as to minimize the political risk of losing an important popular vote and avoid jeopardizing any subsequent substantive reforms with overly ambitious revisions. For these reasons, the new Constitution, approved by popular vote on April 18, 1999, and entered into force on January 1, 2000, was designed to make current constitutional law more transparent, to bring it into a systematic order, and to adjust its language and terminology to modern standards.

Following a preamble and general provisions (Articles 1 to 6) and preceding the articles regarding the organization of the legislative, executive, and judicial branches of the federal government (Articles 143 to 191), the new Constitution now formally and explicitly separates and codifies the four traditional pillars of Swiss constitutional law: (i) Democracy: Articles 136 to 142 address the participation of the Swiss people in the federal government, by providing rules governing popular initiatives for total or partial revision of the Federal Constitution and mandatory or optional referenda against federal statutes; (ii) Rule of Law: Articles 7 to 36 address general principles of governmental actions and provide an extensive catalogue of fundamental rights; (iii) Social Welfare: Article 41 declares certain "social goals" to be achieved by the Federal and Cantonal governments; (iv) Federalism: Articles 42 to 135 address the relationship between the Swiss Confederation and the 26 Cantons, as well as municipalities, and enumerate the federal legislative powers.

The actual text of the new Swiss Federal Constitution as of January 1, 2000, may be found at the following sites in the following languages:

Please note that only the German, French, and Italian versions are authentic and legally binding; the English version is merely an informal translation without binding force.

B. Reform of the Swiss Federal Judiciary (March 12, 2000)

On March 12, 2000, the Swiss people, by popular vote, adopted Constitutional provisions to reform the Swiss federal judiciary, thereby approving the second step of the Federal Council's constitutional reform program. The following section addresses the most significant elements of the recently adopted reform package:

First, the Federal Tribunal will benefit from a reduced case load in order to preserve the quality of its jurisprudence. Since Swiss cantonal courts can apply federal law, the Federal Tribunal, to assure uniform interpretation of federal law, generally has no discretion in whether or not to take a case brought before it. Switzerland has no system similar to that of the United States, where the U.S. Supreme Court may grant or deny a writ of certiorari. As a result, an increase of the number of appeals to the Federal Tribunal directly impacts its case load. Moreover, prior to the adoption of the reform of the judiciary, the Federal Tribunal also acted as a trial court of first instance, rather than as an appellate court, in certain matters of federal criminal and administrative law. Such lengthy trials tied up a great deal of the Tribunal's resources, which could have instead been more efficiently spent on reducing the court's backlog. To address and solve these issues, a new article (Article 191a) will be inserted into the Federal Constitution calling for both the establishment of a federal criminal court and federal administrative bodies with judicial competence. It will also provide the federal government with the power to create additional judicial authorities. In other words, the Federal Tribunal will become, upon implementation of the new constitutional provisions, a pure appellate court, only reviewing cases which have been previously decided by lower judicial authorities. Additionally, for the first time, the principle of judicial independence will be codified on the constitutional level (see Article 191c). Up to now, this principle was not expressly stated in the Constitution but merely mentioned in a federal statute.

Second, as a corollary to the changes affecting the federal judiciary, a new fundamental right will be included in the new Constitution. A new article (Article 29a) will guarantee, as a matter of constitutional law, that every individual has the right to have his or her case heard and decided by an independent court of law. In practice, this new fundamental right does not constitute a substantial change, because only very few cases, predominantly in the area of administrative law, were ultimately decided by governmental agencies (authorities comparable to U.S. administrative law judges) or even by the Federal Council.

Third, the Swiss Confederation, i.e. the federal legislature, is now empowered to enact a single uniform law of civil and criminal procedure to be used throughout Switzerland. Up until now, the law of civil and criminal procedure was a matter of cantonal law. As a result, a country approximately twice the size of New Jersey had no less than 27 different codes of civil procedure and 29 different codes of criminal procedure (if one counts all cantonal and federal procedural codes), partially modified by various singular procedural rules contained in a variety of federal laws and international treaties or developed by the Federal Tribunal. Such a lack of transparency has become more and more of an obstacle to law enforcement and has raised issues of equal treatment. A new constitutional provision addresses these problems by conferring legislative power in the area of civil and criminal procedure to the federal government (Articles 122 and 123).

Finally, it should be noted that the federal legislature did not pass the Federal Council's proposal to extend the scope of the Tribunal's judicial review to include federal statutory law enacted by the Swiss parliament. In other words, the Tribunal will still be bound to apply federal statutory law, even if such law violates the Federal Constitution (see Article 190). Nevertheless, the Federal Tribunal is still empowered to review cantonal legislation, as well as Federal Council Ordinances and federal regulations issued by administrative agencies. This limited judicial review for constitutionality of laws made on the federal level is an expression of the long-standing Swiss democratic tradition, which values democratic compromise over judicial law-making, thereby avoiding to a certain extent a counter-majoritarian dilemma.

C. Upcoming Popular Vote of May 21, 2000

On May 21, 2000, the Swiss people will vote on the adoption of seven bilateral agreements between Switzerland and the European Union concluded on June 21, 1999. The agreements are the results of negotiations between the Swiss Federal Council and the European Union; negotiations which were triggered by the popular vote of December 6, 1992, in which the Swiss people declined to join the European Economic Area. In its negotiations with the European Union, the Swiss Federal Council attempted to recapture the economic benefits of a more intensive cooperation with the European Union, while respecting the concerns which led the Swiss people to vote against the European Economic Area. Therefore, the upcoming vote on these seven bilateral agreements will be very important for Switzerland in terms of its future foreign policy concerning European integration. In fact, the bilateral agreements are subject to a popular vote only because the opposition managed to get (at least) 50,000 Swiss citizens to sign a petition for such a vote to be held (optional referendum; see Article 141 of the Constitution) after the Swiss parliament had approved the agreements by an overwhelming majority vote in both chambers. The seven bilateral agreements cover the following areas:

The first agreement deals with civil aviation and is aimed at harmonizing regulations for intra-European air transport based on European Union law. The agreement essentially defines the terms and conditions of access to the deregulated European civil aviation market by Swiss airlines.

The second agreement is concerned with overland transportation. The agreement calls for coordination of overland transportation policy between Switzerland and the European Union and is designed to ensure a gradual reciprocal opening of the markets for transportation of both persons and goods by road and by rail.

The third agreement relates to the free movement of persons. It would establish freedom of movement between Switzerland and the European Union, resulting in a gradual opening of their respective labor markets. This agreement is the most controversial in terms of domestic policy, since certain political parties fear that foreigners from low-wage countries will migrate to Switzerland and compete with Swiss workers, thereby decreasing wages on the Swiss labor market. In order to address these concerns, Switzerland will pass supplementary legislation, so-called "companion measures," in order to protect Swiss workers against "wage dumping."

The fourth agreement involves European research programs. This agreement will allow Swiss research institutes, universities, and private companies to participate fully in the activities of the fifth European Union Framework Research Programme.

The fifth agreement deals with issues of public procurement. Switzerland and the European Union will agree to broaden the scope of the WTO Government Procurement Agreement concluded in Marrakesh on April 15, 1994, applying it to the sectors of telecommunications, energy, railways, and transportation, including procurement by local authorities.

The sixth agreement addresses technical barriers to trade. The purpose of the agreement is to establish mutual recognition of proof of conformity with established quality standards for most industrial products. Where Swiss law is equivalent to European Union law, one single test will be sufficient to introduce a wide range of products into the stream of commerce. Where Swiss requirements deviate from European Union requirements, two tests will still be needed, however both tests may be performed by Swiss certification bodies.

The seventh agreement regards trade in agricultural products. This agreement is tailored to reduce or eliminate non-tariff trade barriers in order to improve both Swiss and EU access to one another's agricultural markets. The Swiss government is also planning on issuing a number of unilateral "companion measures," with the objective of strengthening the competitive position of Swiss agricultural products.

In terms of the legal framework, there are three points to note. First, despite the fact that the seven agreements have their own separate legal bases, they are inseparably linked to one another, since the rejection of one single agreement would make the implementation of the remaining six agreements impossible. Second, the agreements do not call for a transfer of legislative powers to a supranational entity, although in the area of civil aviation, Switzerland agreed to adopt European Union law, which is applied and interpreted by authorities of the European Union, especially in the area of competition law. Third, the agreements will be administered by Joint Committees composed of representatives of both Switzerland and the European Union. The Committees operate by mutual agreement and have decision-making powers only as provided in the agreements themselves. Implementation of Joint Committee decisions, however, is left to the parties, pursuant to their own regulations.

In view of the strong support for the agreements in the parliament and among the most important political parties, the adoption of the agreements by the Swiss people in the upcoming popular vote is considered rather likely. An update on the outcome of the vote will follow.

For more background information on the bilateral agreements, see: http://www.europa.admin.ch/neue_site/e/index_bilat.html

For the actual texts of the agreements, see: http://www.europa.admin.ch/e/int/abindex.htm

Dr. Cyrill P. Rigamonti, Esq.
JURIST Switzerland Correspondent
May 4, 2000


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