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М. Мусял-Карг, К. Дуда
ФЕДЕРАЛЬНЫЙ СОВЕТ
В ШВЕЙЦАРСКОЙ
СПЕЦИФИКЕ
КОНФЕДЕРАЦИИ
И РАЗВИТИЕ
ПОЛИТИЧЕСКИХ
СТРУКТУР
Аннотация
Работа посвящена анализу специфики исполнительной власти в Швейцарии. В работе проанализированы тенденции изменений в составе Федерального Совета, в том числе принципов назначения членов швейцарского правительства. Актуальность работы связана с необычной формой функционирования исполнительной власти, что с нашей точки зрения стало основой и примером для проявления стабильности среди демократических государств. Следует отметить, что последние годы доказывают, что политическая практика принятия решений в Швейцарии не работает, как это было ранее. Так называемая «волшебная формула» (Zauberformel) рухнула в результате перераспределения полномочий. Стабильность, которую гарантировала правительственная коалиция, в перспективе будет затруднительна в результате новых инициатив формирования исполнительной власти в Швейцарии.
Ключевые слова:
Федеральный совет, Швейцария, магическая формула, исполнительная власть, эволюция
M. Musiat-karg, K. Duda
THE FEDERAL COUNCIL IN THE SWISS CONFEDERATION SPECIFICITY AND EVOLUTION OF POLITICAL STRUCTURES
Abstract
This article aims at analysing the specificity one of the institutions of executive branch in the Swiss Confederation as well as it aims at providing details concerning the direction of changes in composition of the Federal Council and the directions of evolution of principles applying to appointment of the Swiss government's members. This work was motivated by the fact that Switzerland is an example of a country which adopted unusual solutions concerning selection and functioning of the executive branch. As a consequence, it caused an opinion that the Swiss Confederation is one of the most stable democracies in the world. However, recent years prove that political practice translates significantly into evolution of the Swiss solutions because division of powers in the parliament contributed to a "collapse" of the so-called "magic formula" (German: Zauberformel), which guaranteed the great (and stable) government coalition and contributed to emergence of initiatives that aim at changing principles of selecting executive branch in the country.
Key words:
Federal Council, Switzerland, executive, magic formula, evolution
Introduction
Power is the main aspect of political relations. The challenging task of efficient organization and exercising power in a country has always been
raising interest among lawyers, political scientists and politicians. The first concept of organizing the state apparatus was based on uniformity of the state authorities which assumed concentration of power (legislative, executive, judiciary) within a single individual (a monarch) or within a larger or smaller group of people. The essence of opposing concept of the state apparatus structure - the concept of separation of powers developed by Montesquieu - assumes division of power among several bodies. This French thinker who lived in the 18th century struggled to provide freedom of individuals. He assumed that the state power should be divided into three categories: legislative, executive and judicial. According to his concept, there is a need to organize those powers in order to avoid one having a dominant position over the other (harmony and control over powers). Montesquieu's tripartite division of power is currently one of the fundamental principles which are referred to by the contemporary democracies.
This article aims at analysing the specificity one of the institutions of executive branch in the Swiss Confederation as well as it aims at providing details concerning the direction of changes in composition of the Federal Council and the directions of evolution of principles applying to appointment of the Swiss government's members. This work was motivated by the fact that Switzerland is an example of a country which adopted unusual solutions concerning selection and functioning of the executive branch. As a consequence, it caused an opinion that the Swiss Confederation is one of the most stable democracies in the world. However, recent years prove that political practice translates significantly into evolution of the Swiss solutions because division of powers in the parliament contributed to a "collapse" of the so-called "magic formula" (German: Zauberformel), which guaranteed the great (and stable) government coalition and contributed to emergence of initiatives that aim at changing principles of selecting executive branch in the country. Structure of this work is based on the following parts: firstly, it theoretically illustrates functional model of the executive branch; secondly, it demonstrates political concepts which apply in Switzerland; thirdly, it is based on analysis of the directions of evolution of the Swiss executive branch with special attention paid to composition of government and the principles of appointing its members. The object of this work and structure of research partially forced the adoption of system analysis and institutional and legal analysis as the two most important (but not the only) research methods applied here. As far as the analysis of composition of the Federal Council is concerned (especially within the context of sex), the statistical and comparative methods that allow noticing differences and their range in composition of the Swiss government turned out to be particularly helpful.
Executive branch - theoretical context
The mechanisms governing state authorities in democracy assumes elimination of monocratism that is preponderance of one political power. Thus, powers are commonly divided into legislative, executive and judicial branches. Contemporary systems of governments which are based on Montesquieu's idea of separation of state powers tend to vary much. As it was aptly noticed by A. Gwizdz: "there is no developed and accurately defined model of separation of powers which would be commonly and comprehensively supported by the doctrine In constitutional law of various countries the political systems based on the principle of tripartite division are present in various forms" [4, p. 11]. Executive branch conducts state obligations which aim at developing welfare of the whole society. The executive branch is directly responsible for managing state matters. Executive power introduces rights and obligation of citizens, unless they do not comply with the constitution . It is also worth reminding that the executive branch may be understood only as simple "execution" of law that is application of legal acts and issuing legal regulations basing on statutory authorizations. In practice, it is connected with taking all steps which aim at securing development of a country, strengthening authority of the state, guarantying freedom [4, p. 11] and civil rights, managing economic processes, solving social problems and fulfilling the law. Pawet Sarnecki notices that executive function consists e.g. in realization of: governing function (conducting policies and administration of state matters), managing function (setting objectives and directions of development for dependent administrative bodies), administrative function (simply application of legal acts by way of making specific decisions) [5, p. 48].
In colloquial language, the executive branch is associated as inferior to the other branches (that is the legislative and judicial branches) which play the most important role in legislative processes. However, as it was pointed by Jean Blondel, the executive branch constitutes the main subject of rivalry in politics and its structures form the foundation of political system [9, pp. 267-269; 6, p. 246].
In most of the democratic countries accomplishment of basic functions of the state within the frames specified by legal acts and coordination of activities of bodies being part of the executive branch is done through appointment of a separate body, which is often referred to as the government. Its statutory role and objectives (as well as its shape and position of its leader) depend on the concept of executive branch adopted in a given country. The role, objectives as well as the shape of state government and political position of the government's leader depend on the concept of executive branch adopted in a given country.
Analysis of different solutions and properties of executive branch in contemporary countries allows generalization and isolating several models of the executive. Bogustaw Banaszak suggests that contemporarily adopted statutory solutions tend to recur in democratic counties. Then, we may distinguish the following models of executive branch: 1) monocratic, 2) dualis-tic, 3) departmental and 4) directional [1, p. 134; 7, p. 537]. In the monocratic model the executive branch is focused usually within the hands of a single one-man body - the president or monarch. As a consequence, there is no further internal division of the executive. The second model assumes that the executive branch is composed of two bodies: the head of the state and a collective body - the government. Furthermore, Banaszak distinguishes the third model which is present in contemporary politics. The departmental model is characterized by committee system of ruling. In the fourth model - the directorial model - executive branch is composed of tenurial and collegial directory. The directorial model is currently applied.
The third model is typical of the Swiss Confederation and it assumes that the executive branch remains within the authority of the seven-member Federal Council. In comparison to other European federations, the Swiss model of the executive is an exceptional one.
The specificity of Swiss institutional solutions
As for a federation, Switzerland is characterized by quite specific institutional solutions. In order to illustrate the state institutions it is necessary to remind that they are functioning in specific geographical and political conditions, within a tradition of holding direct forms of power which has been developing over centuries. Throughout the centuries Switzerland has developed a unique statehood [11, p. 97]. The federation has been forming differently than in most of the European countries - from the lower levels to the top. It started from self-governed mountain communes, through cantons to a union of cantons which created a state after gradual unification. The fact that Switzerland is a diverse country with regard to geographical as well as national and social considerations is also of great importance here. Firstly, it is a country composed of three completely different geographical regions. The first region is the Alps. Another is the Swiss Plateau (Plateau Suisse) where almost all the largest cities (except for Basel and Geneva) are located: Bern, Zurich, Lausanne, Lucerne and Winterthur. This area is densely populated, and most of the Swiss population lives there. The last geographical region is the Jura Mountains which stretches along the border with France, from the canton of the same name located on the north-east to cantons Neuchatel and Vaud in the south-west. Secondly, Switzerland is divided into 26 different cantons which are further divided into 2396 communes in total. The third element that distinguishes Switzer-
land is the language. About 64% of the population speaks German, over 20% uses the French language, over 7% speaks Italian, and slightly less than 1% speaks Rhaetian. What is more, the religious diversity has also a great influence on the Swiss society. All those differences determine to some extent how the democracy and state authorities function in that small federation [11, pp. 97-113].
In Switzerland, the function of government is played by the Federal Council. The Federal Constitution of the Swiss Confederation of 18 April 1999 determines political position of the Federal Council in the Article 174 describing it as "the supreme governing and executive agency of the Federation" [14]. The Federal Council stated that its primary objective is to make decisions every time a decision is necessary and to conduct creatively with consideration of the better future [2, p. 34]. Despite separation of powers, the Swiss constitution is full of notions that suggest some kind of the parliament's - the Federal Assembly's - superiority over the government. Pawet Sarnecki writes that there is a separation of powers in Switzerland, but the separation actually means that the powers are balanced. It is worth paying attention to two fragments of the constitution: Art. 148 - "the Federal Assembly [...] exercises the supreme power in the Federation" and Art. 171 that allows parliament to charge government with specific tasks [14]. Despite the fact that the government can be in some way controlled or stimulated by the parliament, it is not directly held politically responsible in front of the parliament.
The Federal Council is composed of seven Federal Councillors who are elected by the Federal Assembly through absolute majority of votes. Before the year 2008, the election was made basing on the so called magic formula which describes principles of representation for political parties, representatives of cantons and religions in the Federal Council of Switzerland [12, p. 257]. The formula demanded that the composition of government shall always represent the four largest political parties (three parties had two representatives and one party had one representative) irrespective of the results of general elections. It was also emphasized that at least two members of the Council should represent the French-speaking and Italian-speaking cantons. Over a long period of time the three largest cantons had their representatives: Bern, Zurich and Vaud, while neither canton was allowed to have more than one representative in the Council. Apart from that, the Federal Councillors had to reflect diversity of cantons, languages and religions. The participation of women was also pointed out, especially after the year 1971 when women gained voting rights.
Principles of electing the Federal Council have been specified in Art. 175 of the constitution and Art. 130-134 of the federal act of 13 December 2010 on the Federal Assembly (German: Bundesgesetz über die Bundesver-
sammlung) [10, p. 154]: the Federal Council is elected by the Federal Assembly, that is by 200 members of the National Council and 46 members of the Council of States. Voting is done individually for each candidate, beginning from the candidate who holds the position of the Federal Council member longest. The voting is secret. According to Art. 175, paragraph 3 of the constitution, each person eligible for the National Council can be elected. Moreover, the next paragraph demands that it is required to secure representation of all regions and languages during the elections to the Federal Council. Currently, the requirement to elect Councillors from among various cantons is no longer applied because it led to many problems of practical nature. In case of the Federal Council which has authority since 2011, there are two people from the Canton of Bern. Additionally, there are some unwritten limitations and principles which must be fulfilled during election of the member of the Federal Council. Hence, this body becomes a unique government without opposition. It is a symbol of continuity, stability and consensus.
The formula of electing government adopted in Switzerland caused that this process was not accompanied by political competition which is present in other democratic countries. Until 2003, even slight changes in the election results of four parties represented in the Federal Council weren't leading to changes in composition of the government. Opportunity to change composition of the Council was arising only after resignation or death of a Councillor or due to other reasons. That is why - as Pawet Sarnecki writes - by-elections have great significance. Average term of office among the members of the Council is about 10 years, and what is even more important - the government cannot be dismissed during its four-year term. Switzerland doesn't know the institution of a vote of no confidence.
Article 177 of the constitution specifies two fundamental organizational principles of the way the Federal Council functions [14]. The first one is the collegial principle. Theoretically it means that each decision of the government shall be made during collegial sessions of the Federal Councillors, after voting preceded by a discussion. Former constitution demanded that 4 of 7 members of the government should be present in order to make binding decisions. Another characteristic principle of the way the Federal Council functions is the principle of dividing works of the executive branch into departments, which are administered by appropriate Federal Councillors. Therefore, particular Councillors play two different roles: firstly, they are members of a collegial body - the Federal Council - and they can influence on decisions made within the Council; secondly, they are persons who manage given departments of the federal administration. The Federal Assembly is not assigning particular persons to particular departments - it only elects members of the Council. Members are assigned to appropriate departments in corpore -
every time the election is finished. A member of government appointed by the Council takes control over a given department, which in total reflect the material scope of activities of the Federal Council and at the same time the scope of activities of the whole Federation [12, p. 372; 2, p. 59].
One of the most distinctive solutions adopted in Switzerland is lack of a separate post of the head of the state. Unlike other democratic countries where this function is played by president or monarch, title of the President of the Swiss Confederation is attributed to the head of the Federal Council (that is the head of government). The fact that this function is referred to as the Federal President of Switzerland does not imply that the person is the head of the state as understood in other types of democracy. The person is just a member of the Federal Council whose primary objective it to chair during its sessions (in this perspective it is possible to compare it to the function of prime minister). The president is elected from among the members of the Council by the Federal Assembly and for a term of one year. The vice-president is also elected for a term of one year. It is worth noticing that it is just a symbolic function and it has no significance. After a year, the Federal Council is subject to a turnover. According to a custom, the vice-president replaces the president after their first term is finished. The outgoing president cannot be a candidate in the following year. The person who holds the position of president remains the head of a particular department. However, the president disposes of one additional entitlement - he or she can issue orders in urgent matters which should be discussed by the Federal Council, but there is no time to wait for its next session. In 2013, the functions of the Federal President are performed by Ueli Maurer from the Swiss People's Party. His deputy is Didier Burkhalter from the Radical Democratic Party of Switzerland - he is responsible for the department of foreign affairs.
Directions of evolution of the Swiss executive institutions
Presence of women in the Federal Council is one of the primary areas of evolution within the context of the executive branch in Switzerland. Despite the fact that women in Switzerland gained voting rights in 1971, it is significant that until 1984 the government was composed only of men. However, it was frequently pointed out that there is a need of women participation in that body.
The first woman in the government was Elisabeth Kopp (FDP) who managed works of the department of justice and police. On 1st January 1989 she took the post of the vice-president of the Federal Council and - according to the political tradition of Switzerland - she had the chance to become the first female president in the following year. As a result of accusations (which
later turned out to be groundless) of braking state secrets, Kopp handed in her resignation on 12th January 1989 [13].
Four years later, on 10th March 1993, a social democrat Ruth Dreifuss has been elected to the Federal Council and she became the first female president in 1999. In 2010, after election of Simonetta Sommaruga, women constituted majority in the seven-member Federal Council for the first time.
Detailed information concerning composition of the Federal Council during individual terms of office is presented in table 1.
Table 1. Women in the Federal Council (1984-2013)
Number Number Participation of Women's political
of women of men women (%) affiliation
until 1984 0 7 0.0 -
1984-1989 1 7 14.3 FDP
1989-1993 0 7 0.0 -
1993-1999 1 6 14.3 SPS
1999-2003 2 5 28.6 CVP, SPS
2004-2006 1 6 14.3 SPS
2006-2007 2 5 28.6 CVP, SPS
2008-2010 3 4 42.9 CVP, SPS, BDP
2010-2011 4 3 57.1 CVP, SPS (2), BDP
2012-2013 3 4 42.9 CVP, SPS, BDP
Source: Bundesamt für Statistik, author: Magdalena Musiat-Karg.
Ruth Metzler-Arnold (CVP) was a member of the Federal Council during the years 1999-2003. Micheline Calmy-Rey (SPS), who later served as the president of the Confederation twice (in 2007 and 2011), joined the government after resignation of R. Dreiffus. Another woman - Doris Leuthard (CVP) - has been elected in 2006, and Eveline Widmer-Schlumpf (formerly a member of SVP, currently in BDP) joined the Council in 2008 and served as the president of the Swiss Confederation in 2012. The last woman who has been elected to the government is Simonetta Sommaruga (SPS).
In the whole history of the Federal Council there was 115 Federal Councillors in total and only 7 women among them. When Switzerland granted women the voting rights in 1971 and several cantons (e.g. Appenzell) delayed the moments of making similar decision on a local level, the majority of women in the federal government was undoubtedly symbolic.
Another dimension of changes connected with the Swiss executive concerns modification of political composition "established" with the use of the
magic formula. Political composition of the Federal Council have not changed since 44 years: from 1959 to 2003 the division of positions was as follows: SPS - 2, FDP - 2, CVP - 2, SVP - 1. In 2003, as a result of victory of the formerly smallest party - SVP - the magic formula has been modified. From that moment forward, SVP had two representatives in the Council (instead of one representative) and the Christian Democratic Party (CVP) has lost one place and remained with only one representative in the government. This long-lasting Helvetic coalition contributed to an opinion that the Swiss Federal Council in one of the most stable governments in the world [8: p. 101]. From that time, the distribution of seats in the government was the following: SVP - 2, SPS - 2, FDP - 2, CVP - 1. However, the number of parties that form government did not change.
On 12 December 2007 the magic formula was changed in a quite more radical way. As a result of subsequent parliamentary elections, the Swiss People's Party remained the victor. However, the position of "extreme" Ch. Blocher who has been a member of the government became problematic. During elections to the Federal Council his term of office was not extended and his position was taken over by E. Widmer-Schlumpf in the second round of voting. It was then announced that SVP becomes the opposition from 1 January 2008. Despite that situation, Widmer-Schlumpf has accepted the election similarly as it has been accepted by the re-elected Samuel Schmid (also from SVP). However, they were not officially supported by the party and it was decided to exclude them from the faction.
The situation became more complicated in April 2008 when SVP demanded resignation of E. Widmer-Schlumpf from the post of the Councillor and from being a member of the party. As a consequence, the whole Grison faction of the SVP has been excluded from the party. The Grisons then established the Swiss Civil Party, and after merger with the faction of Bern - they formed the Swiss Civil Democratic Party (German: Bürgerlich Demokratische Partei, BDP). As a result of the above, for a short period of time BDP had 2 representatives in the Council, SPS and FDP both had two representatives as well, and CVP - one representative.
Since 2009, the distribution of seats in the Swiss government is as follows: SVP - 1, SPS - 2, FDP - 2, CVP - 1, BDP - 1. The magic formula which assumed presence of four parties was no longer applying in its original form, but its essence (the assumption of constructive collaboration of the largest political forces in the country) is still present. It seems that there was a specific transformation of the formula, however not the final "collapse" of its principles. It is possible that the political situation would someday force return to the elder version of the formula and creation of a four-party government.
The third area connected with evolution of solutions adopted in the Swiss executive is the system of appointing members of the Council. Changes within
the scope of principles governing election to the Swiss government were becoming apparent in the political history of the Confederation several times already. All of the changes had something in common. Every time it was decided to abandon elections that took place during sessions of the Federal Assembly and introduce direct and general election of the Federal Councillors.
The first initiative of that kind emerged in 1899 and suggested direct and general election of members of the Council and enlargement of its composition to 9 persons. As a result of referendum of 4 November 1900, the initiative was dismissed by the majority of 65% of voters. The votes for were cast by 7 cantons and two half-cantons.
In 1939, the idea of introducing direct and general election of members of the Council and enlarging its composition to 9 persons has emerged again. The initiative was dismissed in referendum of 25 January 1942 by the majority of 67,6%. The votes for were cast by 19 cantons and all half-cantons.
The third initiative was based on a suggestion to introduce general and direct election of the seven Federal Councillors. In 2010, the Swiss People's Party began collecting signatures under the people's initiative entitled "General elections of the Federal Council". The result was a referendum which for the third time dismissed the idea - over 76% of voters and all cantons cast their votes against.
Conclusions
Deliberations contained in this work provoke formulation of several - as it seems - significant conclusions connected with answers to the research problems mentioned above.
1. Functioning of the Swiss Federal Council is subject to evolution which is visible in three dimensions: appearance of women in the Helvetic government, changes in structure and distribution of political forces in the executive; and aims at changing the way the Federal Councillors are elected.
2. As the first dimension (let us call it the context of sex) is of smaller importance, the other two dimensions seem to have essential character. They are connected with modification or rejection of the magic formula.
3. Increase in the number of parties which have their representatives in the government may translate into two scenarios: firstly, and less probably, the rejection of the formula of the so-called great coalition and adoption of solutions that are typical of other democratic countries; secondly, forcing the governing parties to even greater effort in reaching political compromises and providing greater stability of the Swiss executive.
4. As a result of changing number of parties in the Swiss government, the magic formula seems not to "collapse", but rather to be "modified". It is worth to notice that there is a chance to return to the original form of the formula after changing political composition of the parliament.
5. The initiative concerning modification of electing members of the Federal Council seem to be rather unpopular which is proven by the unsuccessful referenda in this case - especially the referendum of June 2013.
To sum up, it should be noticed that Switzerland features a specific and unique political system that is not present in other countries. The constitution and customary norms allow each social group having its own representative on each level of political power. Re-election contributes to stability and predictability of activities of the executive, while cooperation between the parties allows avoiding frequent disputes and reshuffles on the political scene. It is obvious that the larger number of coalition partners in a government, the harder it is to reach a political compromise. However, the possibility of reaching compromise is increased by the institutions of direct democracy which allow the society taking an active part in the politics directed by the state.
It is worth citing here the words of Micheline Calmy-Rey who said that the Swiss system, the Swiss political institutions "offer people of different cultures and opinions the peaceful coexistence, possibility of living together [...] This - together with direct democracy - causes that the government is forced to avoid extremity and govern in a way to reach agreement with everyone by taking into account different types of sensitivity at all times" [3].
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