The Swiss Constitution and a weak-form unconstitutional amendment doctrine?

Abstract

Direct democracy is a long-standing feature of the Swiss constitutional system, but it is increasingly being deployed in ways that threaten basic commitments to constitutional democracy in Switzerland. This article considers possible constitutional responses to this problem, and in particular whether there is scope for an unconstitutional amendment doctrine (UCA) to constrain the scope of popular initiatives in Switzerland. It suggests limited legal and political-cultural support for a substantive or “strong” UCA in Switzerland, given the tradition of relatively narrow and weak judicial review by the Swiss Supreme Court. At the same time, it argues for the plausibility of a weaker, more procedural version of the UCA doctrine, whereby the Court suspends the effect of a proposed initiative, and gives Parliament the final word on whether to give it affect via subsequent implementing legislation. While closely related to existing, procedural versions of the UCA doctrine, this version of the UCA doctrine is distinctive in its combination of judicial suspension and legislative implementation of a proposed amendment, or its connection to theories of weak form review. It also has an important connection to current European human rights law-based constraints on amendment in Switzerland: it draws on European and global standards as a basis for determining what constitutes a democratic minimum core in Switzerland, and further reinforces the status of those standards as an unamendable feature of the current Swiss constitutional order.