The Swiss Collegial Executive

The magic formula

The composition of the Federal Council is not prescribed by the Constitution and has been governed since 1959 by a political understanding known as the magic formula, allocating the seven seats among the largest parties. It has been adjusted, most notably in 2003 and 2008, and it is a convention in exactly the sense of Module I topic 2: a practice accepted as obligatory, with a reason, and unenforceable.

The reason is the point. Switzerland has four language communities, twenty six cantons and a system in which fifty thousand voters can force a referendum on any federal Act. A government excluding a major party would lose referendums continuously. The magic formula converts opposition into participation.

A worked example

The Assembly disagrees strongly with the Federal Council's policy on a Bill.

In a parliamentary system the Assembly could remove the government, or the government could make the Bill a question of confidence.

In a presidential system the legislature could refuse to pass it and the executive could veto its alternative.

In Switzerland the Assembly simply legislates as it wishes. The Federal Council has no veto. It then implements the Act, because article 174 makes it the executive authority and article 177 obliges it to act as a body. And if fifty thousand voters object, article 141 sends the Act to a referendum and the people decide.

Nothing in that sequence involves confidence, dismissal or veto. That is why Switzerland is a third type.

The cases

There is no Swiss case in this book, and the reason should be stated rather than concealed. The Federal Supreme Court publishes its decisions in German, French and Italian and not in English, so no Swiss judgment has been read in the original for this book, and none is cited as authority anywhere in it. Every Swiss proposition here rests on the Federal Constitution's own text in the Confederation's official English version.

Two decisions of other courts illuminate the Swiss design by contrast.

Facts. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), concerned a President seizing steel mills without statutory authority during the Korean War.

Held. The seizure was unlawful; the power must stem from an Act of Congress or from the Constitution.

Why it matters here. The question could not arise in Switzerland in that form, because the Federal Council has no independent constitutional mandate to defend against the legislature: article 174 makes it the executive authority and article 182 requires it to implement legislation.

Facts. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, described the Indian executive as a Council of Ministers responsible to the legislature, with a formal head of State.

Held. The real executive power is in the Council of Ministers, which is responsible to the legislature.

Why it matters here. The word doing the work is "responsible". Strike it out and the Indian executive would look Swiss: a council, collegially deciding, with a formal head. Responsibility by confidence is the whole difference.

Distinctions

What beginners get wrong

"Switzerland is a parliamentary system because parliament elects the executive." Election is not confidence. A parliamentary executive can be dismissed; the Federal Council cannot.

"The Swiss President is like the Indian President." The Indian President is head of State for five years and does not run a department. The Swiss President chairs the Council for a year, cannot be re-elected for the following year, and continues to head a department.

"Switzerland has no head of State." It has a collective one, the Federal Council. There is no individual head of State.

Limits and criticism

Accountability is diffuse. Nobody can be dismissed, so the electorate's control is exercised through referendums and initiatives rather than through the government's tenure.

It is slow. Collegial decision-making among seven members of four parties is not designed for speed.

It depends on a political culture. The magic formula is a convention, and a party willing to abandon consensus can strain it, as the events of 2003 and 2008 showed.

Quick revision

1. Article 174: the Federal Council is the supreme governing and executive authority.
2. Article 175: seven members, elected by the Federal Assembly after each general election of the National Council, for four years, with regard to regions and language communities.
3. Article 176: the Presidency rotates annually and re-election for the following year is not permitted.
4. Article 177: decisions are taken as a collegial body; business is allocated by department.
5. Article 168: the Assembly elects the Council, the Chancellor, the judges of the Federal Supreme Court and the General.
6. Article 144: no dual membership of the Assembly, the Council and the federal courts.
7. No vote of no confidence, no veto; the magic formula is a convention allocating the seven seats.

Test yourself

1. Why is the Swiss executive neither parliamentary nor presidential? Because it is elected by the legislature, which is not presidential, and cannot be dismissed by it, which is not parliamentary. Article 175 provides for election by the Federal Assembly for a fixed four-year term, there is no vote of no confidence, and article 144 separates the personnel of the Assembly, the Council and the courts absolutely.

2. Describe the Swiss Presidency. Under article 176 the President of the Confederation chairs the Federal Council, is elected by the Federal Assembly from among the Council's seven members for one year, and may not be re-elected for the following year. The office is a chairmanship; the incumbent continues to head a federal department and has no powers over the other members.

3. What is the magic formula, and what kind of rule is it? It is the understanding, in place since 1959 and adjusted in 2003 and 2008, allocating the seven seats on the Federal Council among the largest parties. It is a convention: a practice accepted as obligatory, supported by a reason, and unenforceable. Its reason is that a party excluded from government could defeat the government's legislation by referendum under article 141, so inclusion is cheaper than exclusion.

4. Why does this book cite no Swiss judgment? Because the Federal Supreme Court publishes in German, French and Italian and not in English, so no Swiss judgment has been read in the original for this book. Every Swiss proposition here rests on the Federal Constitution's own text in the Confederation's official English version, which is a translation with no legal force but with the same article numbering as the German.