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Analysis: Decisions of the Swiss Sovereign on Two Popular Constitutional Initiatives

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By Thomas Fleiner, Professor Emeritus of Public Law, University of Fribourg, Former President of the Executive Committee of the IACL. Post originally published on the Constitution Making & Constitutional Change IACL Research Group blog.

On September 25, the Swiss sovereign (according to Article 195 and Article 142 par 2 of the Constitution) rejected two popular constitutional initiatives and the voters decided on a referendum (Article 142 par 1 of the Constitution) against the law on the intelligence service. The sovereign rejected both initiatives and the majority of the voters accepted the law on the intelligence service. The turnout was about 42%.

1. Popular initiative for the green economy

The popular initiative for a sustainable and efficient footprint with regard to the resources economy (Green Economy) proposed a new article 94a of the Constitution. According to the first sentence of the new proposed Article 94a of this initiative the federation, cantons and municipalities have to care for a sustainable and with regard to the resources efficient economy. According to the transitional provisions of 197 par 8 the ecological footprint of Switzerland in the year 2050 should not be higher than one global hectare. Actually, Switzerland uses 4.7 global hectares per capita. The bio capacity of Switzerland would only be 1.6 global hectares per capita.

The federal council and both chambers of the Swiss Parliament recommend the sovereign to reject this popular initiative. They principally agree with the substance of the initiative. They argue however, that the initiative wants to achieve too much in a too short time. The federation, cantons and municipalities implementing this initiative would have to decide on far-reaching measures with drastic effects. Those measures could have a negative impact on the competitiveness of Switzerland, on its economic growth and on the Swiss policy of full employment. In addition, such initiative would change the basic structure of the Swiss economical system. It would affect the behavior of every person; consumers could buy less products and the corporations would have less leeway. The economy needs to adapt gradually and in more time to use its chance to get profits out of the market. The actual constitution already contains important provisions for the protection of the environment. The preamble of the Constitution already declares ‘conscious of their common achievements and their responsibility towards future generations’. In addition, the Constitution holds an entire section on environment and spatial planning (Article 73 to Article 80). Article 73 obliges the Confederation and the Cantons “to endeavor to achieve a balanced and sustainable relationship between nature and its capacity to renew itself and the demands placed on it by the population”. The Constitution also obliges the Swiss confederation to ensure the long term preservation of natural resources.

On the contrary, argue the supporters of the initiative, Switzerland’s ecological footprint has more than doubled since the 1960. Today Switzerland’s footprint is 4.7 global hectares per capita, that is, almost three times higher as its bio capacity (1.6 global hectares per capita). Switzerland’s ecological footprint has exceeded its bio-capacity for several decades. Switzerland imports unnecessary timbers and palm oil. It denudes the virgin forest. Consumers spend the scarce resources unnecessarily. Nonetheless, Switzerland does have all requirements for a sustainable economy. We should use our technological competences and our innovative capacities in order to save our welfare and simultaneously protect our environment. The growing imbalance between the ecological footprint and the bio-capacity means that Switzerland increasingly imports bio-capacity to meet its consumption. Actually, it imports natural resources from other countries and exports waste materials such as carbon dioxide. The sovereign followed the recommendations of the federal council and both chambers of the parliament and rejected the initiative with some 35.7% yes and 64.3% no. Only the canton of Geneva voted yes.

2. Popular initiative for a strong old age insurance (AVS plus)

Article 111 of the Constitution guarantees that the Confederation has to ensure adequate financial provision for elderly persons with three so-called pillars. The compulsory occupational pension scheme (second pillar) and the compulsory old-age insurance (first pillar, called AVS in French or AHV in German) enable elderly persons to maintain their previous lifestyle in an appropriate manner. According to Article 112 par two b, pensions must be sufficient to cover basic living expenses adequately. The federal council considers in its message to the parliament for the new Constitution that adequate is about 60% of the last income of a single person. The first pillar (AVS) and second pillar are compulsory for everybody. According to the first pillar (AVS) all persons, rich or poor of the active working generation fund the old age insurance (AVS). The first pillar is based on a redistribution concept, which requires that all employers and employees pay 0.4% of their income. The Confederation subsidizes the insurance for elderly persons.

According to Article 112a of the Constitution, the Confederation and the Cantons pay supplementary benefits to people whose basic living expenses are not covered by benefits of the old-age insurance (AVS). The second pillar is an occupational insurance. This insurance is funded by the contributions of the active working generation. Employers must pay half of the contributions of their employees. The popular initiative (AVS plus) proposes to introduce a new Article 197 par 10 of the transitional provisions of the Constitution concerning the insurance of elderly persons. Accordingly, the pensions for all persons of the old age insurance will have to raise by 10%. The Swiss Parliament (both chambers) and the Federal Council recommended that voters should reject this initiative for the following reasons: The insurance of elderly persons is one of the most important social achievements of Switzerland. The funding of this insurance risks in future an important shortfall, because of the demographic development.

To overcome this gap, the Federal Council proposes with its proposal for a reform called ‘retirement 2020’ to close this financial gap and to protect for the future the security of the pensions for all. To raise actually the pension of 10% would aggravate the financial problems of this AVS insurance. To implement this initiative would cost the budget of the Confederation some four billion Swiss Francs per year. Such excess of budget expenditures would make it extremely difficult to close this financial gap. It would afflict the whole population, the economy and the federal budget. In addition, for some two thirds of the persons obtaining supplementary benefits the initiative would de facto not raise their income. Some 7% of persons obtaining supplementary benefits would even have less in their wallet.

The initiators argued on the contrary that everybody, who values, strengthens the old age insurance (AVS). Actually the pensions of the occupational pension scheme are pressurized. Everybody pays actually more for the occupational insurance and will in future get less pension. The turbulence on the financial markets cancel de facto the promises for pensions. The pensions of the traditional old age insurance (AVS) are affordable. Because of its sound financial funding scheme the old age insurance manages well the aging of the society. Since 1975 the percentage of salaries have never raised. The old age insurance (AVS) has only been subsidized with 1% of the added value tax legislation. Only, for some 0.4% of the salaries of the employees (plus 0.4% of the employers) all retired persons get considerably higher pensions (2400 francs for single persons and 4200 for married couples). Younger employees will be relieved because they will have to fund less for their occupational insurance. Only the old age insurance (AVS) has such a good price performance ratio.

The sovereign followed the recommendations of the federal council and both chambers of the Parliament and rejected the initiative with 40.5% yes and 59.5% no. All German speaking cantons voted no, but the four monolingual and only French speaking cantons and the Italian speaking Tessin voted yes.

3. The referendum against the law on intelligence (secret) service

According to Article 141, the Constitution requires at least 50’000 signatures for an optional referendum against a legislation adopted by both chambers of the Parliament. The 50 000 signatures must be collected within 100 days after the official publication of the legislation. For the final adoption of the legislation, only the majority of the voters is needed (142 par.1 of the Constitution). The Committee of the referendum collected within the required period some 56 000 signatures.

The Federal Council and the Parliament support this law with the following arguments: According to the increasing threatening international situation the secret service needs modern instruments to guarantee the security of Switzerland. To compensate the additional competences of the secret service, the law provides important mechanisms to control the secret service and strengthens the rights of the citizens. The main arguments of the Committee, which collected the signatures for the referendum are as follows: The referendum Committee considers that Switzerland would become a snooping state. This new law gives the secret service the power to invade into the privacy of the citizens and to control their life and communication without any suspicion of a criminal act. One has experienced that a nationwide supervision simultaneously cannot prevent terrorism. Switzerland should learn from its file scandal of 1989.

The majority of the voters accepted this new law with some 65.5%. Only some 34.5% voted yes. Although the cantonal votes are not decisive, all cantons accepted the new law on intelligence service.

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This entry was posted on October 3, 2016 by in National constitutions.
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