IACL research group: Decisions on constitutional amendments by the Swiss sovereign on June 14 2015

Thomas Fleiner

University of Fribourg

On June 14, the Swiss voters and the cantons had to decide on three popular initiatives. They adopted with 61% and 18.5 cantons a constitutional proposal of the parliament and government on Article 119 par 2c and rejected with more than 70% two initiatives of the people to change the constitution.

One constitutional initiative provided a new competence for the federation with regard to student stipends for bachelor and master studies.

The other proposed a new shift of cantonal competences to the federation. It stipulated that the federation impose a new inheritance tax for fortunes over two million Swiss francs. The turnout of this vote was 43%. The majority of the voters agreed also, in an unprecedented tight vote, to accept new taxes to pay for the broadcast of radio and television provided in the new legislation on radio and television. Mainly the French and Romansh cantons considered the actual broadcasting system of Switzerland important for the cohesion of languages in Switzerland against most of the German speaking cantons. The voters adopted this law with the smallest margin of 3500 out of more than 5 Million voters. Within three days, a voter can appeal to its cantonal government to provide a recount. Traditionally the federal court allows recounts only if appellants can prove irregularities of the vote.

Based on a strong ethical and constitutional debate the majority 61% of the voters and 18.5 cantons adopted a new Article 119 par 2c of the constitution. Today some 80’000 children are born in Switzerland by in vitro fertilization. However, Switzerland is the only country in Europe prohibits any pre-implantation diagnosis. Therefore, many young couples travel to other countries as e.g. Spain, Belgium of the Netherlands in order to have their embryos analyzed. The new constitution empowers the legislature to allow the pre-implantation diagnosis in case of infertility and for couples, which have a hereditary disease. According to the current constitution, doctors have to implant all embryos into the womb of the women, which does allow pregnancy of multiple embryos. This principle to implant all embryos into the womb requires couples with a hereditary disease to make the difficult ethical decision on a possible abortion only when they learn after pregnancy that they may give birth to a child with a hereditary disease. The legislature should have the power to give doctors the possibility to analyze embryos genetically and young couples with a hereditary disease should not any more need to travel to other countries. These were the main arguments of the promoters of this new constitutional provision. The opponents argued mainly that in terms of ethics the constitution should prohibit any selection of lives. The state should not allow the legislature to prohibit any human being to exist in Switzerland. This new constitutional provision needs in order to be implemented additional legislation. Actually, this legislation has already passed the two chambers of the parliament. The federal chancellery will publish it soon in order to submit it to the possible referendum. Opponents of the constitutional article already announced that they would collect the necessary 50’000 signatures to submit this new legislation to a referendum. The voters in Switzerland attest that they trust the legislature to enact legislation, which does not infringe upon the dignity of human beings.

The large majority of the voters and all cantons rejected the initiative, which required the federation to adopt a law on stipends for students. The students argued that the amount provided by the cantons is unfair and unjust, because each canton grants different amounts of stipends to students. Students also considered that it is arbitrary to discriminate students according to the canton of their domicile. Moreover, they argued, that Switzerland needs for reasons of economic development more skilled specialists and experts. This initiative would cover this gap. However, the students did only convince some 28% of the voters. The argument of the federal council and of the parliament that the initiative is unnecessary because the legislature has already enacted legislation to provide harmony among the cantons was more convincing. In addition, the cantons concluded already a treaty for harmonization of stipends to the students and the voters did not want to intervene into this cooperation between the cantons.

Only 29% of the voters and none of the cantons adopted the constitutional initiative to tax the millions of heritage. This popular initiative proposed to introduce a new hereditary tax of the federation and to finance with this new federal income the old-age survivors’ and invalidity insurance. It is most interesting that the left wing parties could not convince more voters to impose a new tax on the “filthy rich” and their heirs, which are still a tiny minority in Switzerland. In fact, the parties were not able to convince the majority with their liberal argument considering justice and inequality. The debate shifted unexpectedly to the problems of the family-owned small and medium-sized enterprises (SMEs), because this new hereditary tax would impose enormous problems to the succession of those family enterprises and thus higher the rate of shortage of labor in the difficult economic situation of the much too high Swiss Franc. The federal council and the parliament argued also that such new tax would diminish the important tax-autonomy of the cantons because it would annul the existing cantonal competence and legislation on hereditary taxes. In addition, this new constitutional article proposed also an unproportioned retroactive implementation of 31/2 years back to January 1 of 2012.

By Thomas Fleiner, Professor Emeritus of Public Law, University of Fribourg and Former President of the Executive Committee of the IACL.

This post first appeared on the blog of the IACL research group on Constitution-Making and Constitutional Change. Read more about the group’s work here.