Venice Commission - Report on Bicameralism

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Switzerland

1.Has the country always had a bicameral parliamentary (or congressional) system? If not, from when did the country adopt a bicameral system? Is there a public debate about keeping bicameralism or moving to a unicameral system? Why? What are the terms of the debate? What is the public perception of the usefulness and acceptability (legitimacy) of the second chamber?

The first Federal Constitution of 1848 introduced a National Parliament (Federal Assembly) based on the bicameral system (Council of Representatives, Council of States). Thus, Switzerland has always had a bicameral parliamentary system. If criticism is voiced, it refers to the fact that cantons with a low number of inhabitants have disproportionate voting weight in the Council of States, as they have the same number of representatives in the Council of States like the cantons with a significantly higher population (however note that six very small cantons each elect one representative, whereas the other cantons each elect two representatives, irrespective of their size). At the same time, this asymmetry is also considered as an advantage, as it prevents the small cantons from being dominated by the larger cantons.

2.What is the population of the country? What is its size?

Switzerland has a population of 8’812’700 people and extends over an area of 41’285 km2.

3.What form of state and form of government has the country? Please provide details with reference to relevant constitutional provisions. a) Unitarian or federal/regional/other form of decentralization; b) Parliamentary, presidential, semi-presidential or mixed

a. Unitarian or federal/regional/other form of decentralization

Switzerland is a federal state (art. 3 and 44 Constitution [hereafter: Cst.]) with 26 states, the so-called cantons (art. 1 Cst.).

b. Parliamentary, presidential, semi-presidential or mixed

Switzerland has a mixed form of government (directorial government).

The government (Federal Council) consists of seven members (art. 175 para. 1 Cst.) elected by Parliament (art. 175 para. 2 Cst.). Once the members of Federal Council are elected, they cannot be removed, and there is no vote of no confidence. On the other hand, the Federal Council may not dissolve Parliament or one of its chambers.

4.How many members are in the lower house?

There is no distinction made between upper and lower house. The National Council (House of Representatives) has a fixed number of 200 members.

5.How many members has the second chamber?

The Council of States has 46 members.

6.How are members of the second chamber selected? Please describe: a) direct/indirect/mixed suffrage (if the suffrage is indirect or mixed, who elects or appoints the second chamber? b) territorial or other criteria; i) region/provinces/municipalities/others; ii) professional categories/ethnic/age/other; c) candidates’ independence from/affiliation with political parties; d) in case of indirect election, is there an imperative mandate or a similar practice?

a. direct/indirect/mixed suffrage (if the suffrage is indirect or mixed, who elects or appoints the second chamber?)
The election of members of the Council of States is governed by cantonal law (art. 150 para. 3 Cst.). All cantons introduced the system of direct suffrage.
b. territorial or other criteria
i. region/provinces/municipalities/others
In each canton, two representatives to the Council of States are elected, except for a group of very small cantons (Obwalden, Nidwalden, Basel-Stadt, Basel-Landschaft, Appenzell Innerrhoden, Appenzell Ausserrhoden), with only one representative.
ii. professional categories/ethnic/age/other
Cantons are entitled to determine the eligibility criteria, however remain bound by the Federal Constitution, in particular, the constitutional rights.
c. candidates’ independence from/affiliation with political parties
In theory, candidates without party affiliation may run for office. In practice, all members of the Council of States but one (coming from one of the smallest cantons) are party members and endorsed by their party.
d. in case of indirect election, is there an imperative mandate or a similar practice?
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7.Age. What is the age limit to elect and be elected or appointed to the second chamber? Does it coincide with the lower chamber? Are there other requirements for election than those for members of lower chambers?

According to cantonal law, anyone who is eligible to vote may be elected to the Council of States. In the cantons, the minimum age to be elected to the second chamber is 18 years, and there is no maximum age. Particularity: In Glarus, the minimum age to elect is 16 years; its members of the Council of States retire from office at age 65.

8.Gender. Are there any requirements to achieve gender parity between men and women in the composition of the second chamber or is there any gender quota system? If so, is there a similar requirement or gender quota system for the lower chamber?

There are no such legal requirements.

9.Term of office or tenure. Duration? Does it coincide with lower chamber? Does the second chamber follow the continuity rule (members are not replaced all at once, new elections concern only part of the chamber at a time)? Can the second chamber be dissolved and if yes, who and how exercises its competences in the meantime? Please report any particularity.

The National Council has a legislature of four years.
The Council of States does not have a legislature, and there is no continuity rule, as its members are elected by the cantons according to their own law. However, a term of four years is the rule in the cantons, and the elections are normally held at the same time as those for the National Council. As a result, their term of office generally coincides with that of the members of the National Council.

The second chamber cannot be dissolved.

Particularity: The Canton of Jura has introduced a term limit, according to which members in the Council of States can only twice be re-elected.

10.Congruence. Is it common for the second chamber to have a similar party composition (majority-minority) to that of the lower chamber?

There are no majorities / minorities in the Swiss multi-party parliamentary system.

Members of the National Council are generally elected according to the system of proportionate representation. On the other hand, the members of the Council of States in all Cantons except two (Canton of Jura, Canton of Neuchâtel) are elected according to the majority principle.
As a result, the party-political composition of the Council of States differs significantly from that of the National Council.

11.Status. Are there differences between the legal status of members of the two chambers, and if so, what (e.g., immunity, conflict of interest)?

There are no differences regarding the legal status of members of the two chambers.

12.Rules of procedure. How are the rules governing the second chamber established? Are they different from the lower chamber’s and what are the most relevant differences? Are the internal regulations controlled by the constitutional judge?

The Council of States is governed by the Federal Act on the Federal Assembly and the respective secondary legislation (Ordinance of the Federal Assembly to the Parliament Act and on the Parliamentary Administration) which equally applies to the National Council. Additionally, each chamber has its own Standing Orders (Standing Orders of the Council of States and Standing Orders of the National Council). There are slight differences between the Standing Orders, but these are of clearly subordinate nature (e.g. only the Council of State has introduced a dress code).

13.Powers/competences: Are the powers and competences the same in the two chambers (symmetrical bicameralism)? If the bicameralism is asymmetrical, what are the powers of the second chamber? Please describe: i) financial; ii) legislative; iii) oversight/control; iv) other specific powers, in particular as regards constitutional reforms, confidence motions, international treaties, etc; v) interim powers (e. g. in case of dissolution of the first chamber). a) Distinguish issues which are not submitted at all to the second chamber/where the final decision is taken by the first chamber/where the second chamber has a limited veto right etc. Please address these questions the other way round if the second chamber has more powers than the first one; b) Are there specific appointments that must be done solely by the second chamber? If so, the appointment must be done by supermajority/qualified majority/simple majority/absolute majority? c) What kind of parliamentary initiative can the first and second chamber exercise? d) What happens in case of disagreement (in case of asymmetrical as well as of symmetrical bicameralism); how many readings before the final decision? Does a mixed commission meet? e) To which chamber are draft laws and other drafts to be examined by Parliament or the legislature submitted first? f) Is the government responsible to the second chamber (when it is before the first one)? g) Are decisions taken by a joint meeting of both chambers and, in the affirmative, which ones? h) Does the second chamber have a specific role in emergency situations?

Generally, the powers and competences of the two chambers are identical. Both chambers debate the same items and have the same competences and roles (Art. 148 para. 2 Cst.).

Particularity: Elections, pardons, and conflicts of jurisdiction between the highest federal authorities are decided by the United Federal Assembly (art. 157 para. 1 Cst.), composed of the National Council and the Council of States, in which the National Council has a factual preponderance due to the larger number of its members.

If the bicameralism is asymmetrical, what are the powers of the second chamber? Please describe:
i. financial
ii. legislative
iii. oversight/control
iv. other specific powers, in particular as regards constitutional reforms, confidence motions, international treaties, etc.
v. interim powers (e. g. in case of dissolution of the first chamber)
b. Distinguish issues which are not submitted at all to the second chamber/where the final decision is taken by the first chamber/where the second chamber has a limited veto right etc. Please address these questions the other way round if the second chamber has more powers than the first one.
c. Are there specific appointments that must be done solely by the second chamber? If so, the appointment must be done by supermajority/qualified majority/simple majority/absolute majority?
d. What kind of parliamentary initiative can the first and second chamber exercise?
e. What happens in case of disagreement (in case of asymmetrical as well as of symmetrical bicameralism): how many readings before the final decision? Does a mixed commission meet?
f. To which chamber are draft laws and other drafts to be examined by Parliament or the legislature submitted first?
g. Is the government responsible to the second chamber (when it is before the first one)?
h. Are decisions taken by a joint meeting of both chambers and, in the affirmative, which ones?

14.Is there a form of intergovernmental conference of regions in your country (conference of ministers or presidents of regions, Landers, states members of the federations)? Does it interact with the second chamber? How often does it meet? What is its specific relevance?

There is a significant number of intercantonal organizations, there are no specific interactions with the second chamber, though.

The Conference of Cantonal Governments serves as the political platform for political opinion-making among the cantons, for instance on issues like e-government, EU-politics, or migration. In addition, there are regional “chapters”, for instance the regional conference of the “mountains cantons”. The Conference enables the cantonal governments to make targeted and coordinated contributions to federal policy when cantonal interests are affected. The Conference consists of the governments of all 26 cantons, in contrast to the numerous directors' conferences, which are made up of the cantonal ministers in the respective policy area (e.g. the intercantonal conferences of the cantonal ministers of justice, health, or education).