The People of the Constitution
21 November 2020
There are two founders of the Swiss Confederation (Confoederatio Helvetica): the people and the cantons, according to the Preamble and Article 1 of the Federal Constitution, FC, (Bundesverfassung, Constituziun federala, Constitution fédérale, Costituzione federale).
The Swiss people and the cantons (Das Schweizervolk und die Kantone, Il peuple svizzero et les cantons suisses, Il Popolo svizzero et l’Cantoni, Präambel, Preambel, Préambule, Preambolo) constitute the Swiss Confederation (bilden die Schweizerische Eidgenossenschaft, furman la Confederaziun svizra, forment la Confédération suisse, costituiscono la Confederazione Svizzera, Art. 1 FC ).
The people, and likewise the cantons, are therefore the supreme sovereign power and a legislative body. Art. 51 FC also reflects the highest sovereign power of the people.
Each canton has a democratic constitution, which only enters into force with the consent of the people. The Constitution can always be amended by a majority vote of the people.
The constitution of a canton must comply with the principles of the federal constitution and all applicable (human rights) treaties.
For example, the Supreme Court (Bundesgericht/Tribunal fédéral) in Lausanne recently (29 July 2019) ruled that the electoral system for the government (der Grosse Rat) of the canton of Graubünden does not meet the democratic conditions of the federal constitution. A new electoral system is currently under preparation.
But who or what is meant by ‘the people’? The term represents all inhabitants holding civil rights and the right to vote and to be elected in the municipalities, the cantons and the Confederation (Art. 37(1) FC.
The constitutions of the cantons have delegated the granting of civil rights to the municipalities, based on the (minimum) conditions of the federal government (Art. 38, 1-3 FC).
The procedure and justification must always follow the principles of the federal and cantonal constitutions (i.e. must not be based on procedural irregularities, arbitrariness, discrimination, etc.).
Articles 39 and 136 FC grant the right to vote and to be elected and the right to reside in any canton (Art. 24 FC).
The powers are mainly defined at the cantonal and municipal level, with the exception of the national conscription (compulsory military enrolment) for men, including the possibility of performing substitute service, and the voluntary or non-compulsory military service for women (Art. 59 FC).
Only Swiss citizens have political (voting) rights at the federal level.
The cantons may grant political rights to non-Swiss residents. However, in eight cantons, non-Swiss citizens-residents have the possibility to participate in politics at the municipal and/or cantonal level.
They have the right to vote and in some cases to be elected. Five (French-speaking) cantons (Jura, Neuchâtel, Vaud, Genève, Fribourg) give foreign residents the right to vote and to be elected in municipalities.
The constitutions of three German-speaking cantons (Graubünden, Appenzell Ausserrhoden and Basel-Stadt) allow municipalities to introduce this system for foreigners.
Ultimately, the municipalities, i.e. the people, decide on the granting of the right to vote and/or stand as a candidate. As a result, this possibility may exist in one municipality but not in another within the same canton.
Two cantons grant the right to vote for cantonal representations (Jura, Neuchâtel).
The explicit mention of the People in the Swiss Constitution is not an empty word.
On the contrary, citizens have extensive and guaranteed political rights. They often use them at the municipal, cantonal and federal levels.
The Swiss Confederation and the federal government were created by the (male) citizens and the often centuries-old cantons in 1848.
The last major revision of the Constitution was also ratified by the people (including the female population) and went into effect on 1 January 2000.
This extraordinary political continuity, mutual trust and dialogue between the federal government, the cantons, the municipalities and the people are the fundament of Switzerland’s (economic, monetary, social, and cultural) success.
The people (and the cantons) were and are the sovereign power of the country founded by them in 1848.
The near future will show the sustainability of this democratic crown jewel in Europe.