DEMOS CRATOS IS ONE-EN-один (C)


(BEING CONTINUED FROM   06/05/14)

2 Constitutional Changes between 1997 and 2003
The time span between 1997 and 2003 appears to have been a period favoring the adoption of
new constitutions. Table 2.1 displays a list of all 26 cantons and their constitutional changes
that affect those direct democratic institutions on which the index of direct democracy is
based (state: 18th of August, 2004). The cantons FR, SH, SG, GR, TI, VD, and NE – about
one fourth of all Swiss cantons – all passed new, totally revised constitutions between 1997
and 2004 (the canton of LU is also currently drafting a new constitution, which should be
voted upon in 200745). The reason for this ‘clustering’ could lie both in a “Year 2000” effect
combined with a “200-years jubilee” effect of membership in the Swiss federation, which
emerged from a confederation of single independent states. However, not all of these new
constitutions necessarily brought about alterations in the existing direct democratic
institutions: some of the new constitutions aimed primarily at rewriting the outdated
nineteenth-century wording and giving it a more modern structure without altering its legal
content. The rest of this section is devoted to an assessment of the amendments in the
constitutional stipulations.
With respect to the mandatory and optional statutory referendum, there is a weakening of the
direct democratic institution through a shift of the political power from the electorate toward
the cantonal parliament. Quite often, the application of the mandatory statutory referendum
has been restricted by the inclusion of a majority requirement of the cantonal parliament in the
constitution (SO, BL, SH, AG) or by restriction of the issues to be regulated through legal
stipulation (GL)46. Alternatively, the mandatory statutory referendum has been completely
abolished and replaced by an optional statutory referendum, as happened in four cantons (ZH,
OW, AR, GR (2004)). In general, such changes lead to a decline in the index of direct
democracy in these cantons.

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Looking at the development of the statutory initiative and the constitutional initiative, three
interesting changes should be noted. First, more and more cantons list these two existing types
of initiatives under the identical heading in their constitution in order to group them together
and indicate them as two possible variations of a people’s initiative. This integration is
particularly true for most of the new constitutions, and is part of a trend to make constitutions
more transparent to the average citizen. In the old constitutions, the description of the people’s
rights was subject to a strict constitutional structure that reflected the organization of the state
as understood in the nineteenth century. Traditionally, revisions of the constitution (including
revisions initiated by the people) were given a separate chapter in the back part of the
constitution, not only symbolically almost outside the daily law-making process. The statutory
initiative, in contrast, was placed in the middle, linked to the legislative process. For this
reason, integrating both initiatives under one heading constitutes not only a formal change but
indicates a change in the underlying philosophy and understanding of the purpose of a
constitution.
Linked to this change is a second phenomenon: the introduction of the unitary initiative
(Einheitsinitiative) (e.g. in St. Gallen art. 43 of the new constitution), which also aims to make
it easier for the citizens to influence the legislative process. The unitary initiative is a binding
motion of the electorate for which no specific legal form is required. During the readings
(Lesungen) for the new cantonal constitution in St. Gallen, the introduction of the
Einheitsinitiative was under hot debate and the most important aspects of this institution were
named (PROTOCOL 2000, PROTOCOL 2000a). According to the various speakers, the
advantages of this new type of initiative are that it is relatively easy to carry out and that it is
the legislative organ and not the initiator who decides whether a change in cantonal law or in
cantonal constitution is the appropriate (re)action. This latter means that unitary initiatives can
no longer be turned down on the formal ground that the wrong level of law-making had been
chosen by the initiators, e.g. the proposal of a change in cantonal law when an amendment of
the constitution would have been correct and vice versa. Additionally, the Einheitsinitiative
allows the development of the cantonal law and the constitution in a juristically consistent and
systematic way.
Nevertheless, the Einheitsinitiative should not be seen as a perfect substitute for the traditional
initiatives, because it serves purely as a device to induce the cantonal parliament to become
active. Both statutory and constitutional initiatives are viewed as stronger instruments than the
Einheitsinitiative because both the legal level of application and the content of the change are  precisely specified. Moreover, the Einheitsinitiative serves as a mere suggestion of the  electorate, and the cantonal parliament can decide whether to follow it or not. If the  parliament decides against, a referendum must be held. If it decides in favor and passes a law,
this law is then subject to the optional statutory referendum. If a constitutional change is
chosen, the cantonal people again have the final say in a popular vote. Overall, some speakers
in the cantonal parliament of St. Gallen pointed out, a hierarchy of types of initiatives can be
construed in which the unitary initiative is at the lowest level of influence. Because of this
hierarchy of initiatives, differences in the signature requirements appear justified. There are,
however, cantonal constitutions in which no differentiation is made between the number of
signatures required for the unitary versus the statutory initiative48.
The third phenomenon linked to the initiative but also to the fiscal referendum is that more
and more cantons tend to regulate the time period for collecting signatures or the financial
threshold in the constitution itself and not in a cantonal law on political rights of its citizenry.
The advantage of this development could be increased transparency because now all
requirements concerning one institution are laid down in the same legal act. Another
advantage, depending on whether a mandatory statutory referendum exists in a canton or not,
might be that a change in constitution must be approved by the electorate through a
mandatory referendum49, whereas an alteration of a cantonal law might only be subject to an
optional statutory referendum. In this latter situation, political economic theory predicts that
larger deviations from the median voter’s preferences will occur than in the former (FELD and
KIRCHGÄSSNER 2001). On the other hand, again depending on whether differences exist
regarding the signature requirements for a statutory or constitutional initiative, it might have
become more difficult for the electorate to change that requirement if regulated in a
constitution. In political practice, however, between 1980 and 1998, time periods for
collection or financial thresholds, whether regulated by a law or the constitution, were rarely
changed over time. Additionally, for all cantons during our investigation period, regulation at
a new, higher level of lawmaking failed to bring about a different (shorter) time period for
signature collection.

Table 1 provides information on how the index changed between 1996 (as found in STUTZER,
1999) and 2003 (based on own calculations). A more detailed discussion on such change is
provided in section 7 of this chapter. It must also be noted that not all institutional changes
automatically cause a change in the index of direct democracy: index points are awarded
based on ranges of signature requirements or financial thresholds so that relatively small
alterations do not necessarily translate into a change in category. In addition, the reader
should keep in mind that each institution influences the composite index by only 25%: e.g. the
change in signature requirement in Basel-Land (BL) for the optional statutory referendum
caused a total change of just about 0.21 index points. At this point, I would like to emphasize
that because the index is constructed on a yearly basis, revisions of the cantonal constitution
becoming effective after April 1st are always counted as changes in the index of the
subsequent year. Therefore, if a cantonal electorate approves a revision in September 1997,
becoming effective the same date, it is the index value of the subsequent year 1998 that will
be adapted accordingly. Moreover, it is also possible that several, contrasting institutional
changes – either occurring simultaneously or subsequent to each other – might cause a
compensating impact on the index of direct democracy. Finally, it should be noted that
changes in the index can occur even if the institutional requirements do not change: such
changes happen because some evaluations use per capita values, meaning that fluctuations in
population often lead to a change in category.

3 The Initiative
3.1 Constitutional Initiative
Table 2: The Constitutional Initiative between 1997 and 2003

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3.3 Comments on the Changes in Constitutional and Statutory Initiatives

Tables 2 and 3 provide an overview of the 26 Swiss cantons and their constitutional
stipulations concerning the constitutional and the statutory initiative between 1997 and 2003.
In several cantons, alterations in these institutions of direct legislation have occurred since
1997. In the constitution of Zürich, the time period available for constitutional and statutory
initiatives is not fixed (art. 29, 4 CC)50; instead, it is stipulated that a cantonal law should
determine this limit. As of the 1st of June, 1969, the time period for signature collection was
set at 6 months for people’s initiatives (art. 13, 2 of the Initiativgesetz). On the 1st of
September, 2003, a new cantonal law on political rights (Gesetz über die politischen Rechte,
GPR) was passed in the Kantonsrat that fixed an identical time period (art. 126, 1 GPR) and
became effective the 1st of January, 2005. In other words, in terms of the requirements for
statutory and constitutional initiatives, no changes that affect the index of direct democracy
have been undertaken in Zürich since 1969, despite the enactment of a new cantonal law on
political rights.
Uri is one of the cantons in which important changes in the requirements for the constitutional
and statutory initiatives occurred after 1997. In this canton, the number of required signatures
doubled from 300 to 600 as of the 1st October, 1997 (art. 28, 2 CC; art. 27, 1 CC), which  caused a duplication of the relative signature requirement from 1.18 per voter to 2.36 per  voter and, finally, lowered the subindex for either initiative from 1998 onwards. Since the  identical stipulations are valid for both initiatives, an identical drop is noted for the subindex
of both types of initiatives. The time period for collection, however, was not altered by this
constitutional revision.
In the canton of Obwalden, on the 29th of November, 1998, the electorate decided against
maintaining the status of Landsgemeinde. This choice meant that (a) the open vote in a yearly
citizens’ meeting was replaced by a secret vote at the ballot box and (b) the role of the
representative organ of legislation was strengthened. As regards the constitutional initiative,
however, no change in institutional requirements occurred after 1968 except for a formal
renumbering of articles in the constitution. In contrast, as regards the statutory initiative, the
abolishment of the Landsgemeinde in November 1998 brought about a substantially higher
signature requirement than before. As a result, the stipulated number of supporters rose from
1 in June 1997 to 500 in November 1998, which caused a jump in the relative signature hurdle
from about 0.005 to 2.27. The time period available for collection, however, remained the
same. In effect, this change led to a substantial decline in the subindex for the statutory  initiative.
For the canton of Nidwalden, there have been no apparent changes in the institutional
requirements for either initiative since 1996. It might be interesting to point out, however, that
in addition to the usual initiatives, the citizens can also make a counterproposal to an existing
decision of the Kantonsrat either to revise the constitution or to make a new/change in
cantonal law. This institution is very similar to the initiative – in a way it can be viewed as a
reactive initiative. The requirements for the counterproposals are identical for the statutory
initiative and the constitutional initiative, respectively (see art. 54a, 4 CC).
The canton of Glarus is one of the two cantons in which direct democracy in the form of the
Landsgemeinde still exists. In this canton every citizen has the right to make a motion to the
Landsgemeinde, the assembly of its citizens, on issues that concern the Landsgemeinde (art.
58, 1 CC). Hence, according to art. 58, 1 CC and art. 138, 3 CC, it takes one vote to launch a
constitutional or statutory initiative. Art. 69 CC then specifies the fields on which the
Landsgemeinde can exert its decision-making power, which is comprised of the constitution
and cantonal laws. This stipulation, however, was amended in May 2002, leading to a  seemingly indirect restriction of the statutory initiative 51 , because only fundamental  regulations should be determined in the form of laws, whereas before 2002 any issue could  have been in a statutory form. The intention of this new regulation was to give the cantonal
parliament the power to regulate organizational issues, particularly the execution of the
federal law, which in Switzerland is carried out by cantonal administrations, in the form of
parliamentary decrees that, as administrative acts, cannot be challenged by direct democratic
rights52. This change in the scope of the statutory initiative, however, does not affect the value
of the index of direct democracy because no distinction is made between a statutory initiative
with a wide or a narrow scope of application. In the same period, the requirements of the
constitutional initiative remained unchanged.
In the canton of Freiburg, a new constitution took effect on the 1st of January, 2005.
Regarding the institutional setup of either the statutory or the constitutional initiative,
however, no change was introduced. Thus, the index of direct democracy remains unaffected.
The sole difference to the old legal system is that for both types of initiatives the signature
requirements are now explicitly stated in the constitution instead of being regulated
exclusively by a cantonal law. This complete regulation at the constitutional level does not,
however, diminish the power of the electorate to change these requirements through an
initiative because in Freiburg it is (and was) as easy to launch a statutory initiative as to
launch a constitutional one.
The people of Schaffhausen adopted a new constitution that came into force on the 1st of
January, 2003. This new constitution is one of those total revisions that aimed to modernize
the structure and wording without changing the legal content – at least as far as the initiatives
are concerned. In the new constitution, both types of initiatives are now regulated in one
article (art. 27 CC) rather than being dispersed within the constitution (art. 108, 107 old CC
and art. 43 old CC). Therefore, no change is observed in the values of the subindices of either
the constitutional or the statutory initiative.

During the time period under investigation, the people of St. Gallen also adopted a new
constitution in 2002, which took effect on the 1st of January, 2003. This new constitution
brought about decisive changes for the statutory and constitutional initiatives. Overall,
launching an initiative seems to have become more difficult under the new regulation.
Specifically, in the new constitution, the time for collecting signatures was fixed at 5 months
for either initiative (for reasons of ‘harmonization’53) and the number of signatures was raised
substantially (from 4,000 to 6,000) for the statutory and maintained at 8,000 for the
constitutional initiative, respectively. Hence, the time requirement has become stricter for the
constitutional initiative but more relaxed for the statutory one. As a consequence, the
subindex for the constitutional initiative stayed the same54, but the subindex for the statutory
initiative declined from 4 points down to 3.66 points. One new feature in this constitution is
the introduction of the so-called Einheitsinitiative (unitary initiative), which is easier to launch
in comparison to a traditional statutory or constitutional initiative (4,000 signatures in 5
months, art. 43, 1 CC and art. 45 CC). The advantages and disadvantages of this kind of
initiative have already been described in the previous section. As a final change, the minimum
time gap between passing a new law and starting a new initiative appears to have been erased
in the new constitution. Neither the unitary initiative nor the change in minimum time gap is
reflected in the subindex for the statutory initiative.
Like many other cantonal people, the citizens of Graubünden also opted for a new
constitution, which became effective on the 1st of January, 2004, but which is outside the
scope of this investigation. The new stipulations brought about a rise in the people’s
empowerment through a decrease in the number of signatures necessary for a constitutional
initiative (from 5,000 signatures down to 4,000). This development should be well reflected in
a higher value of the subindex of the constitutional initiative (from 4.333 up to 4.666).
Regarding the statutory initiative, however, the old requirements remained unchanged at
3,000 signatures. For both initiatives, the time for collecting signatures is set at one year in a
cantonal law (art. 53c, 1 GPR), which has remained unaltered since 1962.
Also counted among the new cantonal constitutions has to be that of the Italian-speaking
canton of Tessin, which was adopted in December 1997 and became effective on the 1st of
January, 1998. Regarding both constitutional and statutory initiatives, no changes are
observable in the constitutional stipulations. The sole observed change is that the time period  available for collection is now regulated at the constitutional level and not (exclusively)  through a cantonal law (art. 3, 3 LIRR for the old constitution; art. 137, 1 LEDP since 1 Jan, 1999). Hence, the index of direct democracy is unaffected. As the number of signatures for
launching a constitutional initiative is significantly higher than the number necessary for a
statutory one (10,000 vs. 7,000), it is now more difficult for the people to induce a change in
the requirement of the time period for collection than prior to the new constitution. At this
point, it should be noted that the information in T/S 1999, p. 343, on the signature
requirement for the statutory initiative in the proposed constitution does not reflect the
number actually set in the new constitution.
The canton Waadt also experienced the introduction of a new constitution, which entered into
force on the 1st of September, 2003. As in many other cases, however, only small institutional
changes were introduced through this process. The time period for collecting signatures for
either initiative was increased from 3 months to 4 months (art. 79, 2 CC)55; however, the
number of signatures was augmented to 18,000 for a total revision of the constitution but
stayed the same for the partial revision and the statutory initiative. Since the index of direct
democracy does not take into account a total revision of the constitution (which occurs less
than once in a human lifetime on average), it is not affected by that latter change.
Nevertheless, the subindices for either initiative should increase from 2004 onwards. In
addition, as in many other cantons and in contrast to the old legal setup, the time period for
collecting signatures is now regulated at the constitutional level. As, however, the
requirements for changing a cantonal law and amending the constitution are identical in
Waadt, regulating such an issue in the constitution does not weaken the institution-setting
power of the people. The old regulatory setup facilitated, in theory, changes by the parliament
to their advantage because cantonal laws were then subject only to an optional statutory
referendum. The cantonal parliament, however, has never abused its power in the past
because, in political practice, the stipulation of 3 months has remained unchanged, at least
since 197856.
Finally, the people of Neuenburg also totally revised their old constitution and voted on a new
one on the 16th of October, 2001, which took effect on the 1st of January, 2002. In the new  constitution, the stipulations are more transparently and logically structured, but this did not  cause a change in the institutional setup for either initiative. Therefore, the two subindices of   the statutory and the constitutional initiatives remain unchanged. Additionally in this case, the
requirement of the time period, originally solely regulated in the cantonal law on political
rights (LDP), became part of the constitutional provisions.

(TO BE CONTINUED)

Justina AnastasiaValerie Fischer
from  Deutschland
Approved on the application of  Prof. Dr. Gebhard Kirchgässner  and  Prof. Dr. Simon Hug

DISSERTATION /2005
of the University of St.Gallen
Graduate School of Business Administration,
Economics, Law and Social Sciences (HSG)  to obtain the title of Doctor of Economics

NOTES

45 See http://www.neueverfassung.lu.ch (7/10/2004) and personal communication with Mr. ZEMP (20/04/2005).
46 In case the majority restriction serves only as a means for disciplining the cantonal parliament, the introduction
of such a majority restriction has to be regarded as equivalent to a de facto elimination of the mandatory
referendum. Only observation of the daily political usage over a longer period of time can provide a basis for
a correct evaluation of this institution.

47 The value of ZÜRICH has been corrected. See section 7 of this chapter.

48 Because of its potentially low level of political influence and because it only complements the existing
traditional initiatives, the Einheitsinitiative does not (yet) form part of the index of direct democracy. Only the
future will show how important the institution becomes to the daily political process and whether it should be
included in the index construction or not.
49 As required by art. 51, 1 SC, see also section 1.

50 CC stands for cantonal constitution.

51 As well as of the mandatory statutory referendum – see section 4.
52 According to Mr. DÜRST, Ratsschreiber in the Regierungskanzlei of Glarus, in practice this restriction was
only carried out to solve an academic battle over whether all executions of federal laws needed to be based on
a so-called cantonal introductory law (‘Einführungsgesetz’) that would, under the old constitution, have been
subject to a mandatory referendum. In political practice, he claims, no restriction of direct democratic rights
was caused by this amendment in May 2002.

53 See PROTOCOL 1 and PROTOCOL 2.
54 As the index is constructed, both 180 and 150 days of time for collection fall in the same category.

55 The new constitutional stipulation contradicts the time limit laid down in the cantonal law on political rights
(art. 92, 1 LEDP). The Grand Conseil of Waadt, however, amended this law on the 5th of April, 2005. This
revision will come into force after a delay of 40 days if the electorate of Waadt does not carry out a statutory
referendum to overrule this change.
56 See T/S 1999, p. 375 cont. for an account of the institutional development of the initiative.

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