Direct democracy in Swiss firing line
The National Council approved on Tuesday the creation of a Constitutional Court in a move seen by opponents as a step towards the dismantlement of Switzerland's tradition of direct democracy.
A tight vote produced a final result of 94 in favour, 86 against, and three abstentions. Left-wing parties were broadly supportive of the move, while the right was largely opposed.
If the National Counci's proposal is approved by the Council of States, Switzerland will repeal Article 190 of the Federal Constitution, which expressly prohibits the creation of a constitutional court.
If approved, the new court would have the power to overrule the Federal Supreme Court, which for 137 years has been Switzerland's highest judicial body. The Supreme Court has no authority to review the constitutionality of federal statutes.
The reason traditionally given for the lack of judicial review is the Swiss system of direct democracy, which allows citizens to change the constitution, adding or amending laws, if a proposal gets the majority of votes in a referendum. In other words, Swiss law is mainly reviewed by its citizens.
The Federal Supreme Court is however authorised to review the compliance of all Swiss law with certain aspects of international law, mainly in the area of human rights.
Even so, in the past, the court was forced to apply laws that it considered unconstitutional. Often, this process ended at the Human Rights Court in Strasbourg, which called Swiss authorities to order.
Advocates of a constitutional court want to avoid situations where Switzerland is told what to do by an international court. Opponents counter that the court risks becoming a political body, thereby breaching the separation of powers.
In a heated debate, Swiss People’s Party parliamentarian Luzi Stamm said the measure was a "step towards the abolition of direct democracy."
This view was supported by Free Democratic Party representative Christian Luscher, who said there was no need for a change because “the system is already functioning very well.”