Explain the Process of Legislation Under The Swiss Constitution

(1) Introduction

The Swiss Federal Assembly is the legislative authority and legislative power is vested in its two chambers. Legislative process is complex and often lengthy in Switzerland. There are five phases of legislative process. These phases include initiation, drafting, parliamentary deliberation, referendum, commencement and publication, and evaluation. The legislative powers and process are based on the concept of direct democracy.

(2) Legislative Powers Or Process Under The Swiss Constitution.

The legislative powers or process can be explained in the following words:

  • (i) Initiation
  • (ii) Drafting
  • (iii) Parliamentary deliberation
  • (iv) Commencement
  • (v) Referendum
  • (vi) Publication
  • (vii) Evaluation

(i) Initiation

Initiation phase of legislative process can be explained in the following words:

  • (a) Initiation of constitutional amendment
  • (b) Initiation of federal acts
  • (c) Initiation of ordinances

(a) Initiation Of Constitutional Amendment

Constitutional amendment can be presented by way of legislation or by means of a popular initiative:

  • (a-i) By way of legislation
  • (a-ii) By means of popular initiative

(a-i) By Way Of Legislation

The way of legislation to initiate constitutional amendment is same to the way of legislation to initiate federal acts.

(a-ii) By Means Of Popular Initiative

Chapter 2 of Title Four of The Swiss Constitution provides for popular initiative:

  • (x) Popular initiative for complete revision of Federal Constitution
  • (y) Popular initiative for partial revision of Federal Constitution
  • (z) Procedure applicable to initiative & counter-proposal

(x) Popular Initiative For Complete Revision Of Federal Constitution

Article 138 provides for popular initiative that requests for the complete revision of the Federal Constitution:

  • (x-i) Proposal
  • (x-ii) Submission of proposal

(x-i) Proposal

One lakh persons, who are eligible to vote, can propose a complete revision of the Federal Constitution within 18 months of the official publication of their initiative.

(x-ii) Submission Of Proposal

This proposal for the complete revision of the Federal Constitution must be submitted to a vote of the People.

(y) Popular Initiative For Partial Revision Of Federal Constitution

Articles 139 and 139a provide for popular initiative that requests a partial revision of the Federal Constitution:

  • (y-i) Request
  • (y-ii) Requirements of consistency of form
  • (y-iii) Requirements of subject matter
  • (y-iv) Violation of mandatory provisions of international law
  • (y-v) General proposal or specific draft

(y-i) Request

One lakh persons, who are eligible to vote, can request a partial revision of the Federal Constitution within 18 months of the official publication of their initiative.

(y-ii) Requirements Of Consistency Of Form

If the initiative fails to comply with the requirements of consistency of form, the Federal Assembly is to declare it invalid in whole or in part.

(y-iii) Requirements Of Subject Matter

If the initiative fails to comply with the requirements of subject matter, the Federal Assembly is to declare it invalid in whole or in part.

(y-iv)Violation of Mandatory Provisions of International Law

If the initiative violates mandatory provisions of international law, the Federal Assembly is to declare it invalid in whole or in part.

(y-v) General Proposal Or Specific Draft

A popular initiative for the partial revision of the Federal Constitution can take the form of a general proposal or the form of a specific draft of the provisions, which are proposed:

  • (p) If Federal Assembly agrees with general proposal
  • (q) If Federal Assembly rejects general proposal
  • (r) Specific draft

(p) If Federal Assembly Agrees With General Proposal

If the initiative is in the form of a general proposal and the Federal Assembly agrees with it, the Federal Assembly shall draft the partial revision on the basis of the initiative and submit it to the vote of the People and the Cantons.

(q) If Federal Rejects General Proposal

If the initiative is in the form of a general proposal and the Federal Assembly rejects it, the Federal Assembly shall submit it to a vote of the People; the People shall decide whether the Initiative should be adopted. If they vote in favour, the Federal  Assembly shall draft the corresponding bill.

(r) Specific Draft

An initiative in the form of a specific draft is submitted to the vote of the People and the Cantons:

  • (r-i) Recommendation
  • (r-ii) Counter-proposal

(r-i) Recommendation

The Federal Assembly recommends whether the initiative should be adopted or rejected.

(r-ii) Counter-Proposal

The Federal Assembly can submit a counter-proposal to the initiative.

(z) Procedure Applicable To Initiative & Counter-Proposal

Article 139b provides for the procedure that is applicable to an initiative and counter-proposal:

  • (z-i) Voting at same time
  • (z-ii) Voting for both proposals
  • (z-iii) In response to third question

(z-i) Voting At Same Time

The people vote on the initiative and the counter-proposal at the same time.

(z-ii) Voting For Both Proposals

The People can vote in favour of both proposals.

(z-iii) In Response To Third Question

In response to the third question, the people can indicate the proposal that they prefer if both are accepted.

(b) Initiation Of Federal Acts

The initiation of federal acts can be explained in the following words:

  • (b-i) Federal Council, Parliament or Canton
  • (b-ii) Member of Parliament, parliamentary group & canton
  • (b-iii) Drafting of bill

(b-i) Federal Council, Parliament Or Canton

The preparation of federal acts can be initiated by the Federal Council, Parliament or a canton.

(b-ii) Member Of Parliament, Parliamentary Group & Canton

Any member of Parliament, any parliamentary group and any canton can propose that parliament pass legislation on certain matter.

(b-iii) Drafting Of Bill

(x) In Case Of Parliamentary Motions

If the Federal Assembly agrees, it directs the Federal Council in the case of parliamentary motions to draft a bill.

(y) In Cases Of Parliamentary & Cantonal Initiatives

If the Federal Assembly agrees, it directs a parliamentary committee in the cases of parliamentary and cantonal initiatives to draft a bill.

(c) Initiation Of Ordinances

The initiation of ordinance can be explained in the following words:

  • (c-i) Executive
  • (c-ii) Issuance of ordinance

(c-i) Executive

The executive issues ordinance; ordinance can be issued by the Federal Council, a Federal Department (ministry), a Federal Office or another government agency. However, it is necessary that they have the authority to do so under the Constitution or the law.

(c-ii) Issuance Of Ordinance

Ordinance is issued where a federal act requires further implementation and where the Legislature has delegated the right to legislate on a minor issue to the executive.

(ii) Drafting

The drafting phase of legislative process can be explained in the following words:

  • (a) Administration
  • (b) Three stages

(a) Administration

Swiss federal legislation is usually drafted by the administration. Even if a bill is formally prepared by a parliamentary committee, the administration usually makes the actual text of the bill.

(b) Three Stages

The preparation of a preliminary draft, the consultation of the public, and the preparation of a final draft are three stages of the drafting phase.

(iii) Parliamentary Deliberation

The parliamentary deliberation phase of the legislative process can be explained in the following words: (a) Consideration & approval of bill by one chamber

  • (b) Consideration of bill by other chamber
  • (c) In case of differences
  • (d) In case where differences remain unsettled

(a) Consideration & Approval Of Bill By One Chamber

Bill is first considered by one chamber and if it approves the bill, the bill is sent to the other chamber.

(b) Consideration Of Bill By Other Chamber

Except in the case of urgency, the second chamber  considers the bill in a subsequent session of Parliament.

(c) In Case Of Differences

If there are differences between the chambers, the divergent decisions of each chamber are referred to the other chamber for consideration until agreement is reached between the two chambers.

(d) In Case Where Differences Remain Unsettled

If there remain differences after three detailed discussion in each chamber, a conciliation committee, which is composed of members of both chambers, is appointed. This committee is to propose a compromise motion that eliminates the remaining differences. If the compromise motion is rejected by either of the chambers, the bill is abandoned.

(iv) Referendum

Mandatory referendum is held for constitutional amendments while optional referendum is held for federal acts.

(v) Commencement

Constitutional amendments generally come into force on the day of their adoption by the people and the Cantons while the commencement of federal acts is usually delegated to the Federal Council.

(vi) Publication

Enactments must be published at least five days before they come into force.

(vii) Evaluation

The Federal Assembly is to ensure that legislation is evaluated with regard to its effectiveness.

(3) Conclusion

It can be finally stated the Swiss Legislature is Federal Assembly. The Federal Assembly consists of two chambers; the National Council (House of Representatives) and Council of States (Senate). Both the chambers possess equal legislative power. Any bill needs the approval of both chambers for its enactment. Together with the instruments of direct democracy, this equality of the chambers is one of the mam reasons for slow legislative process in Switzerland.

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