Who makes the rules in our beautiful country?

Following the intervention of a politician in a debate, I became interested in the separation of powers in Switzerland. The distinction seemed clear to me, but now I discover that ordinances are sometimes issued by the Federal Council and sometimes by the Federal Assembly, and sometimes even by the courts. How is this possible? E., Versoix

The separation of powers in Switzerland is a fundamental principle that can nevertheless be applied with the flexibility required by the circumstances! The powers of the authorities are clearly defined, but they can be delegated in the interests of efficiency and specific knowledge. The Constitution stipulates that essential rules must be laid down in a federal law - subject to referendum - while less important rules may be laid down in the form of ordinances if there is a sufficient basis in the Constitution or in a law. Ordinances are therefore subordinate to the law, which they implement or supplement. 

Order

The Federal Council therefore has broad powers to issue implementing ordinances. It acts as the natural regulatory arm of the Confederation. In other words, parliament lays the tracks and the government often regulates the details of the route. Nevertheless, the Federal Assembly has, for example, adopted an ordinance, which is regularly applied, on the maximum permitted blood alcohol levels in road traffic. In extraordinary circumstances, the Federal Assembly and the Federal Council may also adopt so-called emergency ordinances; in practice, it is mainly the Federal Council that acts first, as it can meet quickly. 

Finally, the courts are not suddenly playing mini-parliament. Their ordinances are generally regulations on their organisation, staff, archives or procedural fees. In other words, the judiciary does not legislate on matters that fall within the remit of parliamentarians at all levels of government, but it does take care to ensure that it functions properly in order to fulfil its remit.

The Federal Supreme Court has long held that the separation of powers serves to distribute competences, that an ordinance must remain within the limits of its basis of delegation, and that an Executive cannot invent rules without sufficient foundation; conversely, when a delegation is valid, the ordinance has its rightful place in the legislative edifice. 

The separation of powers is therefore respected insofar as each exercises its role, with a few well-marked bridges. The ordinance is not a departure from this principle. It is often simply the legal tool chosen to regulate matters that do not require a grand and beautiful law in due and proper form.

Read Pascal Rytz's columns on www.tdg.ch