Constitution and Democracy

Die Bundesverfassung, Plakat 1848. Nationalmuseum Zürich. Photo/Foto: TES.

The people of the Constitution

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 are thus the founder of the constitution, the country and the federal government. They always have the final say on amendments or changes to the federal constitution through the popular initiative (Volksinitiative, iniziativa dal pievel, initiative populaire, initiativa popolare) and the compulsory referendum (obligatorisches Referendum, referendum obligatoric, référendum obligatoire, referendum obbligatorio, Art. 138-140 and 193 FC).

The people, like 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 the (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’? They are the inhabitants who have the civil right and the right to vote and stand for election in the municipalities, cantons and the Confederation (Art. 37(1) FC. It is an inseparable trinity.

The constitutions of the cantons have delegated the granting of the civil right to the municipalities on the basis of 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. not based on procedural irregularities, arbitrariness, discrimination, etc.).

Art. 39 and 136 FC grant the right to vote and stand for election at federal, cantonal and municipal level and the right of establishment in all cantons (Art. 24 FC). The tasks are mainly defined at cantonal and municipal level, with the exception of conscription for men, with the possibility of substitute military service and the explicitly mentioned voluntary military service for women (Art. 59 FC).

At federal level, only Swiss citizens have political (voting) rights. The cantons may grant political rights to foreigners. In eight cantons, foreigners have the possibility to participate in politics at municipal and/or cantonal level. They have the right to vote and in some cases to stand for election. Five (French-speaking) cantons (Jura, Neuchâtel, Vaud Genève, Fribourg) grant foreigners the right to vote and stand as candidates in municipalities. Two cantons also have the right to vote at cantonal level (Jura, Neuchâtel).

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 and not in another in the same canton. They are not the people within the meaning of the federal Constitution, however. The discussion on the (democratic) aspects of the (lack of) voting rights of non-Swiss citizens is another issue.

The explicit mention of the people in the Swiss Constitution is not an empty word. On the contrary, the people have extensive and guaranteed political rights and often use them at municipal, cantonal and federal level. The people (man only), together with the often centuries-old sovereign cantons, created the Swiss Confederation and the federal government by the constitution of 1848. The last major revision of the Constitution was also ratified by the people (including the female population) and became law 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 were and are the true sovereign power of the country that they founded in 1848.

The near future will show the sustainability of this democratic crown jewel in the centre of Europe. The country is once again surrounded by structures that cannot compete with this concept.