Switzerland as a Model
for
Constitutional Reform in Israel
Daniel J. Elazar
When Israelis consider constitutional reform, they usually look
to the United States with its separation-of-powers system, the
United Kingdom with its combination of Westminster-style
parliamentary government and single member constituencies to
parliamentary elections, or the French Fifth Republic with its
presidential system. In doing so, they overlook Switzerland, a
very useful example that has several features that should be of
special interest to Israelis: the size of its territory (41,239
km2) and population (six million) are quite similar to those of
Israel; certain aspects of the political culture of the two
peoples are similar, particularly their fierce independence,
sense of collective identity, and sense of special vocation; and,
finally, Israel has already borrowed certain elements of its
system from Switzerland, most particularly the Swiss system of
military mobilization and reserve service.
The fact that such comparisons rarely are made may have to do
with the superficial perception that Switzerland is so peaceful
and prosperous and its people so simple and orderly that it
cannot be compared to Israel. But it should be remembered that
Switzerland, like Israel, was forged through an extended period
of warfare with its neighbors that lasted continuously for four
hundred years and that its present state of prosperous neutrality
was only inaugurated after its liberation from Napoleonic
conquest at the beginning of the nineteenth century, over five
hundred years after the first three Swiss cantons confederated as
the nucleus of modern Switzerland. Indeed, it was not until that
late date that Switzerland achieved its present borders which
were guaranteed by the powers of Europe in 1816. In those years
of warfare the Swiss gained a worldwide reputation as tough
soldiers who, in times of peace, went around the world to fight.
Moreover, during what may be called Switzerland's golden age in
the sixteenth century, at the beginning of the Protestant
Reformation, whose Reformed wing was basically a Swiss product,
the Swiss leaders of the Reformation leaned heavily on the Hebrew
Bible (to them the Old Testament) for inspiration and, indeed,
direct constitutional application. They reorganized their cities
and cantonal republics along biblical principles of governance,
elements of which survive to this day. While the difference in
decibel level between the two peoples is superficially
significant, it may be that the Swiss are quieter today because
they have found the political system that suits their particular
political culture, whereas Israelis may be noisier than necessary
because they are living with a political system that is utterly
dysfunctional to their political culture.
What follows is a brief description of the highlights of those
aspects of the Swiss political system of particular relevance to
Israel. It is designed to suggest lines for further exploration.
The Swiss Political System
We can identify eleven facets of the Swiss political system
worth exploring: 1) its written constitution: 2) the separation
of powers; 3) a plural executive; 4) bicameralism; 5) the
electoral and party system; 6) its federalism; 7) its strong
cantonal and communal self-government; 8) institutionalized
consultation; 9) its pattern of relationships between religion
and state; 10) government as a civic responsibility; 11) the
Swiss system of rights and liberties.
1. Written Constitution
In part because Switzerland is a federal system and in part
because of the country's desire to preserve the Swiss conception
of liberty, the Swiss have emphasized constitutionalism through a
written constitution. The present Swiss constitution was adopted
in 1848 and underwent substantial revision in 1874. Since
Switzerland is a communal, liberal democracy the major concern of
its constitution is the preservation of communal liberty, which
manifests itself through the distribution of powers among
communes, cantons and the federal government; among Protestants
and Catholics, the two principal religious groups; and among
German-speaking, French-speaking, Italian-speaking, and
Romanch-speaking Swiss, the four principal linguistic groups.
The Swiss constitution also enshrines a major principle of
popular democracy, namely, the system of legislation, legislative
review, and constitutional amendment through referendum. All
proposed constitutional amendments must be submitted to the
voters in a referendum in which both a majority of the cantons
and a majority of all votes cast are needed for enactment. It
also is possible for 50,000 Swiss citizens entitled to vote to
initiate constitutional amendments. Federal legislation must be
submitted to referendum on the demand of 30,000 Swiss citizens
entitled to vote or or eight cantons. As a rule, all federal
laws of an organic, that is, constitutional character are
submitted to referendum. Federal treaties may also be brought
before the public for approval under the same terms. Cantons and
communes have similar referendum procedures.
Israel could very much use a written constitution, especially in
connection with the other constitutional reforms proposed, in
order to anchor them and the protections needed to make them
effective in Israeli constitutional law. One of the sticky
points over the adoption of a written constitution in Israel has
been the problem of associating all written constitutions with
those of the liberal democracies. Switzerland offers a good
example of a constitution which, while accepting most of the
premises of liberal democracy, exists to secure communal and
group rights in a manner more in tune with Israel's needs. These
might include group rights for non-Jewish minorities and special
protections for minorities within the Jewish fold, particularly
the ultra-Orthodox. Rather than specify which groups, however,
what is more likely to be needed in an Israeli constitution would
be the establishment of common procedures under which groups
could claim rights -- which might simply be the right to be
consulted seriously on specific issues affecting them before
governmental action is taken. Thus any groups from the Moslem
Arab minority to the kibbutzim, would be able to claim
recognition as a group to be consulted.
Moreover, there is good reason to consider the Swiss referendum
system as a check on the government and the Knesset and as a
means of increasing citizen responsibility and involvement. The
Knesset should have the authority to submit items to referendum.
Also, a sufficient number of citizens shall be able to petition
for the submission of a particular measure to a referendum.
The language and style of the Swiss federal constitution is also
worthy of close examination.
2. Separation of Powers
One of the most frequently suggested constitutional changes in
Israel is to sharpen the separation of powers. While the Israeli
constitution recognizes the importance of that separation, its
governmental structure severely limits any possibility of
separating executive and legislative powers. As a parliamentary
system, Israel's executive is formally responsible to the Knesset
and, as has proven true in every other parliamentary system,
actually dominates it since Knesset members do not want to see
the government fall and have to face new elections. This mutual
lack of independence generates frustrating struggles for power
which weaken both bodies at crucial junctures. This is a system
worthy of consideration by Israel.
3. Plural Executive
It is this feature of the Swiss constitution which could make a
separation of powers system work in the Israeli context. The
Swiss Federal Council has seven members, elected by the Federal
Assembly every four years. Its members are elected as
individuals, by secret ballot, although there are certain
conditions of selection that preserve a balance between cantons,
groups and parties. The Council is not responsible to the
Assembly, but serves a fixed term. The President of the
Confederation is selected annually by the Federal Assembly from
among the members of the Federal Council. His duties are
essentially to preside over the Council and serve as ceremonial
head of state. Each Councilor heads a department, the equivalent
of a ministry, during his tenure. The Council functions as a
collective body in determining state policy.
While this degree of collective behavior may be excessive for the
Israeli scene and it might be necessary to have a chairman of the
executive who holds office for the entire term, the idea of a
plural executive is worth exploring. One would assume that a
collective executive in Israel would reflect the kind of
coalition building that seems necessary in the Israeli context,
so a plural executive would have the advantage of enabling a
reasonable coalition politics to continue, yet end the threat of
small parties bringing down governments. Once in, parties would
be in for the full term.
4. Bicameralism
"Subject to the rights reserved to the people and the cantons,
the supreme authority of the Confederation is exercised by the
Federal Assembly which is composed of two sections or councils:
A) the National Council; B) the Council of States." The Federal
Assembly is the supreme federal governing body; seats on the
National Council are apportioned by population; members are
elected for four-year fixed terms through a proportional
representation system based on the flexible list system. Members
of the Council of States are elected by the individual cantons,
two from each full canton and one from each half-canton.
This feature of the Swiss polity is less attractive to Israel,
unless it would turn out to be a means of accommodating both the
territorial and ideological dimensions of the Israeli polity. It
is somewhat surprising that in the debate over electoral reform
in which these two principles are properly posed as opposites, no
one has seriously raised the issue of a bicameral solution. Under
such a solution, one house of the Knesset could be elected on a
territorial basis and the other on a party list basis, thereby
accommodating both faces of Israeli politics.
This would be particularly effective if the country were divided
into permanent regions, with each region having some forum for
the nomination and/or selection of candidates. One device might
be that candidates are elected by a forum of all the general
purpose local governments in the region. Another might be
regional elections on a non-partisan basis. Still a third would
be to allow the present system of party nominations, by allowing
the voters to vote for individuals rather that party lists. In
any case, equal or at least more balanced representation of
regions in a second chamber would give so-called peripheral areas
such as the Negev and the Galil a greater share in the government
of the state than is possible under strict proportional
representation or even under a territorial system, in which seats
are apportioned strictly according to population. For any of
these systems, the ideological dimension, if it gains expression,
would do so in accordance with the views of the majority located
in the territory represented.
Some might argue that this is simply adding one or more
additional layers to an already heavy-handed, overbureaucratized
apparatus dominated in a sufficient system. It is possible to
argue, however, that it is precisely by loading the same
institutions with multiple tasks that often conflict with one
another that one gets the paralysis for which Israel is famous;
that if institutions were separated so that each would have more
discrete responsibilities, it would be far less paralyzing. Today
the same cabinet minister, Knesset member or civil servant has to
weigh competing interests which he or she must consider in every
case. That makes for paralysis. If the same people could act on
the basis that they had one set of interest to represent while
others had other sets, the logjam might be broken.
This, indeed, may be one of the great lessons of the Swiss
system. By dividing responsibilities among many institutions, no
one institution has to consider every angle of every question.
While it is unlikely that Israel will become like Switzerland in
its general culture of stolid order, self-restraint and emphasis
on literal law-abidingness, other civil societies without those
characteristics -- the United States among them -- have found the
proper design and structuring of their political institutions to
have a great influence on their ability to achieve political
order and stability, even in much more dynamic and fluid
situations.
5. The Party System
As a country with permanent religious, linguistic, communal and
political cleavages, Switzerland has had a multiparty system
since the origin of modern political parties. In this respect,
its ability to balance multiparty elections with stable
government is particularly relevant to the Israeli experience.
There are three major parties, one significant smaller one, and a
group of lesser parties. They are roughly equivalent to the
Israeli parties, allowing for the ideological differences between
the two polities.
6. Federalism
The Swiss are the federal nation par excellence. Not only are
they organized as a federation after centuries of existing as a
confederation, but they are a federal people through and through,
with a federal political culture. In the latter respect, the
Jews resemble them greatly, but because of the differences in
historic circumstances, Israel became a centralized unitary state
rather than a federation of little republics -- even though
Israel's beginnings were such that the matter could have gone
either way.
Swiss federalism exists within a territory hardly larger that
Israel's. Indeed, it existed when the territory of Switzerland
was considerably smaller. Unlike most of the federations of the
world, in which federation were adapted to serve very large
territories and populations, the Swiss want federalism in order
to preserve the small community. They do not object to cantons
of a few tens of thousands in population and, indeed, base their
system of citizenship on the acceptance as a citizen in a commune
prior to the possibility of applying for and obtaining federal
citizenship. Swiss federalism emphasizes the primary powers of
the federal government. Even though, in fact, during the last
hundred years there has been a flow of powers to the federal
government, this basic form still exists.
It is not likely that Israel will try to imitate Switzerland in
this regard -- in part because Swiss federalism grew from the
communes and cantons outward over the course of centuries,
whereas in Israel there would have to be an artifical division.
Nevertheless, as we shall see, there are some virtues for
considering even a certain measure of federatization in Israel;
for example, to better represent regional interest and thereby
strengthen what are today defined as the country's peripheries
and to strengthen local government. Israel could appropriately
be divided into anywhere from six to twelve cantons with
Jerusalem as a capital district to provide regional
self-government, a permanent basis for territorial representation
in the Knesset, and even a way to devolve certain issues of state
and society to local populations. We will return to that below.
Since the establishment of the state and even before, there has
been considerable discussion about the underrepresentation of the
Galil and the Negev and the overrepresentation of Tel Aviv and
Gush Dan in state affairs. Studies have shown that the
overwhelming majority of Knesset members come from Tel Aviv and
Jerusalem and have only fleeting contact with the rest of the
country. The only other area that has equal or greater
representation than its population calls for is the Jezreel
Valley because of the disproportionate number of kibbutz members
on the lists of the labor camp. The rest of the regions are
clearly, and at times drastically, underrepresented. However,
even if the electoral system were changed and Knesset members
were elected by district with seats distributed in proportion to
population, the concentration of population in the Tel Aviv area
and the adjacent coastal plain or in Jerusalem would keep the
interests of a major share of the country effectively
underrepresented.
Democracy prohibits overrepresentation of underpopulated areas in
common institutions, but the desired goals can be achieved
through greater regional and local autonomy -- by giving the
people who live in those regions greater control over their own
affairs. That, indeed is what the institution of cantons would
do for Israel, since in Israel, with one or two exceptions, we
are not talking about regionally based ethnic or cultural
differences; what we are talking about is more self-government
for people who share a common culture, which is how similar
systems work in most western countries today.
The precise allocation of powers to the intermediate governmental
units will have to be decided by negotiation. However, they
would likely include those powers which require extensive
inter-local cooperation, such as land use planning and control,
regional, educational and elemosynary institutions, water and
waste disposal, regional educational facilities, regional roads,
programs of regional cooperation and development. In essence, it
is not a question of assigning separate functions to regional
governments, but in introducing a regional component into shared
functions.
7. Cantonal and Communal Government
We have already noted that the Swiss pride themselves on their
powerful cantonal and communal governments. The various studies
that have been made in Israel have all suggested the need for an
intermediate governmental arena between the state and local
governments. While those intermediate arenas need not be
empowered the way the independent Swiss cantons are, such arenas
should be established and allocated substantial powers in
specific fields.
Beyond that, the Swiss model of local government would far better
serve Israel than the modified English model presently in vogue
whereby local government ordinances, budgets and decisions are
subject too state veto through one channel or another and all
local governments are considered ultra vires, namely, they have
only the powers specifically delegated to them. The ultra vires
system may have some value in the Anglo-American countries where
local governments are essentially service providers. But in
Israel, as in Switzerland, local governments have major
responsibilities for the social well-being and cultural
expression of their citizens. (That is to say they do not only
provide basic services like roads, maintenance and sanitation
but they offer religious services, support, cultural
institutions, and serve as the arms of a highly developed welfare
state.) At least in these areas there should be far greater local
autonomy than presently exists, and the Swiss model would be
helpful in this regard. Granting local authorities constitutional
homerule, which would eliminate ultra vires giving them
appropriate taxing powers and/or automatic revenue sharing which
will increase their ability and responsibility to make decisions
on matters of local concern. It would also entail a substantial
reduction in local dependence on decisions made outside of the
local jurisdiction even under circumstances where they influence
the results of those decisions.
8. Institutionalized Consultation
A feature of the Swiss polity little noted by outsiders is the
system of institutionalized consultation designed to keep the
peace in a highly heterogeneous country. Under this system it is
expected and usually written into law that when significant
legislative or administrative changes are proposed, there will be
widespread consultation with every group having an opportunity
to express its views so that the end result that emerges has
achieved support by consensus before it is brought to a vote.
Over time Switzerland has evolved its own ways of determining
which groups to be consulted. First of all, of course, are all
governments - federal, cantonal and communal. The major
religious groups - Catholic, Protestant and Jewish - are also on
the list. So are the political parties and the associations of
commerce and industry and the labor unions. Organized linguistic
minorities are consulted and other interest groups are consulted
as relevant and needed. A new group gets on the list through
consultation with the appropriate authorities until recognition
is obtained. Israel would do well to learn from this system of
institutionalized consultation and introduce as much of it as
possible into the Israeli polity.
9. Religion and State
One of the major purposes of the Swiss system is to maintain the
particular relationship between religion and state which has
developed in Switzerland. Switzerland may very well be the most
intensely religious country in Europe today, with a level of
religious involvement and commitment approaching that of the
United States. That is because, as in the United States,
religion has been considered an ally of liberty and not an
oppressor of it.
Under the Swiss system, then, the major ties between religion and
state are to be found in the cantons or communes. The federal
government acts as a guarantor and protector, both of the
religious communities and of religious liberty, while particular
cantons and communes continue to maintain established churches
and other intimate ties between religion and state. Thus, for
example, even in cosmopolitan, liberal Zurich, the cantonal
university restricts the appointment of non-Protestants to
professorships, because, after all, it is the university of
Zwingli, one of the leaders of the Protestant Reformation. By
recognizing the necessity for a more intimate connection between
religion and state than the liberal democracies, but at the same
time shifting the burden for such ties to the cantonal and
communal arenas, Switzerland maintains its support for religion
while also maintaining civil peace.
If Israel were to adopt a modified cantonal system, as I have
suggested in this paper, it could shift some of the burden with
regard to religion and state from the state to the regional and
local governments, allowing far greater opportunities for
pluralism without diminishing the intimate connection which is
necessary in a Middle Eastern state in general and a Jewish state
in particular. Clearly, there are some questions of religion,
state and society that can only be dealt with by the state as a
whole. In the case of some, such as the "Who is a Jew?" issue,
even the state is not, in fact, free to act on its own, but must
take into consideration the needs of the entire Jewish people in
Israel and the diaspora. Others, such as determining the
military service status of yeshiva students or women are issues
to be resolved by the state as a whole. Other questions,
however, such as whether public places of entertainment or
particular streets should be open on the Sabbath, could well be
handled on a local or regional basis. In other words, what we
might call the retail or consumer issues, as distinct from the
wholesale issues, can be handled at what is the governmental
equivalent of the retail outlet.
This would, indeed, lead to a mosaic of arrangements within the
country, and in some places there would be local conflict over
what decisions should be made, but in a relatively short time
matters are likely to sort themselves out as it becomes apparent
what is allowed where. Handling these kinds of "retail"
conflicts in the state arena will inevitably require limitations
on the non-religious majority in order to protect the group
rights of the religious minority, or via vissa, something which
Israel's brand of coalition politics makes politically, if not
morally, necessary. These kind of decisions in the state arena
are polarizing and leave either the minority or the majority
alienated. Thus diffusion of at least part of the issue into the
regional and especially local arenas can prove to be diffusing
for the whole society and, hopefully, will enable Jews to live
together when it comes to other, cross-cutting issues.
At the same time, such an arrangement would enable the state to
more clearly maintain those fundamental commitments to Judaism
which one would expect in a Jewish state, while reducing the
possibility that they will be exploited by ultras. With the
burden of certain problems removed, it will be possible to
achieve wall-to-wall agreement on other fundamental issues,
precisely because most Jews in Israel want to be Jewish, but they
do not want to be bound to Orthodox interpretations of halacha in
certain areas of activity.
10. Government as a Civic Responsibility
The Swiss polity is so structured that participation in
government becomes a civic responsibility for every citizen.
There are so many elected offices within relatively small units
of government that almost everyone has to take his or her turn at
serving in some elected position. Frequent elections and
referenda require a high level of civic awareness and activity.
The system of institutionalized consultation makes participation
in interest groups useful and productive, thereby encouraging
citizen involvement.
It is hard to envision the Israeli population as any less capable
of such activity than the Swiss; only under the present Israeli
system there are so few possibilities for citizen involvement
that government has almost ceased to be a civic responsibility.
It is all the more amazing, then, that Israelis vote in the
percentages they do and follow political affairs the way they do.
Under a system of civic involvement similar to that of the Swiss
one could assume that the Israeli response would be very good.
Such a system of involvement would strengthen civic life in
Israel and substantially change the present party system with its
monopolistic approach to political power.
11. The Swiss System of Rights and Liberty
As indicated above, the Swiss approach to democracy is one of
protecting liberties, particularly communal liberties, rather
than simply emphasizing individual rights. The Swiss believe
that it is through the preservation and extension of communal
liberties that individual rights are best protected.
Nevertheless, the Swiss constitution does provide all the normal
protections of individual rights expected in a liberal democracy.
Federal constitutional guarantees are particularly important in
the religious sphere where they serve to curb possible excesses
arising from the fact of established churches in most of the
cantons.
The Swiss approach is very similar to the historic Jewish
approach to similar questions and, indeed, was much influenced by
the Hebrew Bible. If examined more closely, much will be found
that will be of relevance to the Israeli experience. The essence
of what the Swiss can teach Israelis is how to make the
transition from ideological to territorial democracy without
unduly disadvantaging minority groupings which benefitted from
the previous system. In the years in which modern Switzerland
emerged, the Swiss, too, were divided on the basis of religious
ideology. Ultimately they institutionalized means for the
different ideological groupings to live together on a territorial
basis.
As a new society, Israel was founded through an ideological
imperative, Zionism, which embraced several different visions of
what Israel should be. At one time the Zionist Movement and the
Yishuv could accommodate those ideologies through a system of
consociationalism. Since virtually everybody in the emerging
Jewish society in Eretz Israel had an ideological commitment,
everyone belonged to one camp or another which could then provide
services on an a territorial basis, with the power and resources
divided among the camps, which then provided services to their
members. Since the establishment of the state, that ideological
impetus has declined substantially except in the religious camp.
This is only to be expected, since it the fate of all new
societies to pass through the ideological stage of the founding
generation and ultimately to come to rest on a territorial basis,
whereby most people are committed to the society and its
institutions because they were born and raised there rather than
because of any initial ideological commitment. Ideological
commitments may still be important but they become secondary to
territorial realities.
The problem is: how does a polity shift from an ideological to a
territorial basis when there are still strong ideological
minorities that must be conciliated and a basic vision that keeps
the polity alive. Israelis tend to look to the American
experience for examples, but the United States has chosen a path
of individualistic pluralism which, if adopted, would repudiate
the Zionist vision of a Jewish state, for secular no less than
religious Jews. The Swiss have adopted other solutions to the
same problem -- solutions more appropriate to the Israeli scene
as Israel goes through this same transition which inevitably will
continue.
Conclusion
In this brief paper I have tried to indicate some of the areas in
which the Swiss polity and political experience can be useful to
Israelis seeking constitutional reform. It should be obvious
that the previous pages are suggestive rather than exhaustive,
since in each case a more thorough study of the way the Swiss
system works and why it works the way it does would be needed
before its relevance for Israel could be properly determined. At
the same time, a similar study would be needed of what would be
the likely consequences of introducing each element of the Swiss
system into Israel. Such an exploration would seem to be very
much worth the while of Israeli constitutional reformers.
Bibliography
Barber, Benjamin R., The Death of Communal Liberty:
A History of Freedom in a Swiss Mountain Canton
(Princeton, NJ: Princeton University Press, 1974
Codding, George Arthur Jr., The Federal Government of
Switzerland (Boston: Houghton Mifflen Co., 1961).
Rappard, William E., La Constitution Federale de la Swisse
(Neuchatel: A la Baconniere, 1948).
de Rougement, Denis, La Confederation helvetique
(Monaco: Editions du Rocher, 1953)
Sigfried, Andre, Switzerland: A Democratic Way of Life
trans. Edward Fitzgerald (New York: Duell, Sloan and Pearce,
n.d.).
