CONSTITUTION OF SWITZERLAND – SALIENT FEATURES

This article throws light upon the salient features of the Switzerland Constitution.

 

Ø INTRODUCTION:

 

A Constitution means a document having legal sanctity which sets out the framework and the principal functioning of the organs of the Government of a State and declares the principles governing the operation of those organs.

 

Switzerland has one of the world's most unique constitutional systems. It was created in 1848 by a committee of the Swiss Parliament and endorsed by the Parliament, the Cantons, and the Swiss people.

 

Ø HISTORICAL BACKGROUND

 

The Constitution of September 12, 1848, which created the Swiss federal state, served as the foundation for the prevailing Federal Constitution. This document was heavily influenced by the US Constitution and the ideals of the French Revolution. It established the subsidiarity principle, which states that unless the Federal Constitution expressly restricts canton's autonomy, that autonomy does not exist.

The Constitution of 1848 underwent a minor revision in 1866. In 1874, the first comprehensive revision became effective. It expanded the federal government's authority and gave more democratic rights to the electorate. This total revision also introduced the referendum at federal level.

 

The Federal Constitution was updated and revised in the 1990s, with provisions that did not belong at the constitutional level being "downgraded" and unwritten constitutional law contained in Federal Supreme Court decisions being codified. On April 18, 1999, the People and the cantons both decided in favor of this total revision with majorities of 59.2% and 14 out of 26 cantons, respectively. Among other new provisions, it contained articles on fundamental rights that had previously only been outlined in decisions of the Federal Supreme Court and legal commentaries. It replaced the previous Federal Constitution of May 29, 1874. It became effective on January 1st, 2000.

 

Ø FEATURES OF THE SWITZERLAND CONSTITUTION

 

The Swiss Constitution is distinctive in many ways. The envy of all other democratic constitutions is its direct democracy mechanisms. Another admirable contribution to the global governance system is its plural executive, which combines the benefits of parliamentary and presidential executives while avoiding their drawbacks.

 

1. THE PREAMBLE:

 

The Swiss Constitution introduces with a Preamble which begins by the words. In the name of God Almighty, We, the Swiss people and Cantons……

 

“It expresses the firm resolve to renew the alliance, to strengthen liberty and democracy, independence and peace in solidarity, and openness towards the world. It expresses the determination of the Swiss people and Cantons to live our diversity in unity, respecting one another.”

 

It also notes that the Swiss people and Cantons adopted the Constitution in full consciousness of their common achievements and responsibility towards future generations.

 

The Provision affirms faith in two fundamental guiding principles. “Only those remain free who use their freedom”, and “The strength of a people is measured by the welfare of the weakest of its members.”

 

The Preamble declares that the people and the Cantons are sovereign, and it makes a firm resolve to maintain and strengthen Switzerland. It states that the Swiss i.e., Swiss Federation, is committed to ensuring freedom and welfare for all people, especially for the weakest members of the Swiss nation. The Swiss Federation is organized on the principle of "Unity in Diversity."

 

2. A WRITTEN, ENACTED AND ADOPTED CONSTITUTION:

 

In 1874, Swiss constitution of 1848 has amended and subsequently, integrated in 1999 and become a written document like that of the United States of America (U.S.A.) although it is double in size to that of the American constitution. Constitution of the 1999 consists of One Hundred and Ninety-Six Articles.

 

3. A RIGID CONSTITUTION:

 

The Swiss Constitution is rigid in character, but not so rigid as the American constitution possess. The procedure of its amendment is rather complicated. There are two procedures of amending Swiss Constitution; such as i. Through Referendum and ii. Though Constitutional initiative.

 

I. THROUGH REFERENDUM

 

A proposal to amend the Constitution may be created and put to the vote of the people and Cantons if both Houses of the federal parliament agree by passing a resolution to do so, either completely or partially. The Constitution is amended if a majority of the electorate participating in the referendum and a majority of the cantons agree with it. If only one House accepts the proposed revision and the other does not, then the proposed revision is put to a vote of the general public to determine whether it is necessary or not.

 

Federal Assembly is dissolved if the proposed revision is approved by a majority of the populace. In such proposed revision is discussed by the newly elected assembly. If both the Houses of the Assembly ratify it, which is a foregone conclusion, the revision is submitted to the people and Cantons for vote. The revision takes effect if the majority of the populace and Cantons agree with it.

 

II. THROUGH CONSTITUTIONAL INITIATIVE

 

On a petition signed by at least 1 lakh Swiss citizens, a popular initiative can also result in a full or partial revision of the Constitution.

 

4. DEMOCRATIC REPUBLICAN CONSTITUTION:

 

Switzerland has been a Republic since 1291. It is headed by a plural executive of seven people chosen by the two houses of the Swiss Federal Parliament. In Switzerland, every political institution is a democratic institution.

 

The devices of referendum and initiative allow the people to directly participate in the law-making process by electing their representatives. Republicanism in the Cantons is also provided for by the Constitution. Every Swiss Canton is entitled to a constitution as long as it guarantees the Republican form of exercising political rights. Article 51 declares, Every Canton shall adopt a democratic constitution.

 

5. FEDERALISM:

 

Switzerland was referred to as a Confederation in Article I of the Swiss Constitution of 1874. The revised constitution, on 2000, of Switzerland directly describes it as the Swiss Federation.

 

“The Swiss confederation came into being to consolidate the alliance of the Confederated members and to maintain and increase the unity, strength and honor of the Swiss nation.”

 

Additionally, it stated that “the objective of the constitution was to achieve the solidarity of the nation.” The purpose of 1874 total revision of the Constitution was to achieve the solidarity of the nation. By addressing the flaws in the constitution from 1848, a comprehensive revision was undertaken with the purpose of turning Switzerland into a centralized federation.

 

The following characteristics of the Swiss Constitution reflect its federal nature:

1. Cantons' non-sovereign status.

1. Swiss Constitution's supremacy.

1. Existence of written and rigid constitution affecting the Cantons' and Swiss Federation's respective spheres of authority.

1. The Swiss Constitution's division of powers has followed the structure of the US federation. The Constitution outlines the powers of the Federation and their joint powers with the Cantons, leaving the remaining powers in the hands of the Cantons.

1. The Cantons have retained their authority over local and regional issues while the federation has been given authority over matters of national importance.

1. Each full canton, no matter how large or small, is allowed to send two representatives to the Upper House of the Swiss Federal Parliament, the Senate, and each half-canton is allowed to send one representative.

1. There are distinct constitutions for each canton.

1. The Swiss Federal Court is an independent court that has the authority to judicial review of the legislation that has been passed by Cantonal legislatures.

1. There is a dual judicial system, dual administration, and dual citizenship.

 

The presence of a federation in Switzerland is amply demonstrated by all these features.

.

6. DIRECT DEMOCRACY:

 

Direct Democracy has its roots in Switzerland.   Zurcher   has   rightly written: “Switzerland and democracy have, in recent years, become almost synonymous.” Switzerland has been operating as a direct democracy since 1848 using such contemporary methods of direct legislation as Initiative and Referendum.

 

Referendum, Initiative, and Lands gemeinde are examples of direct democracy tools used by the Swiss people within a representative democracy framework. The Federal Parliament, an assembly of their representatives, is directly elected. However, they also actively participate in the legislative process through the use of initiatives and referendums.

 

7. DUAL CITIZENSHIP:

 

The system of dual citizenship prevails in Switzerland. According to the Constitution, each Canton's residents should be Swiss citizens. This gives a person the right to hold and exercise Swiss Federation and Canton citizenship.

 

8. SECONDARY POSITION OF JUDICIARY:

 

Comparatively speaking, the judiciary in the United States of America or India is more vital than that in Switzerland. Judicial review by the Swiss Federal Tribunal is not exhaustive. It may only declare a cantonal law to be unconstitutional. The Swiss Constitution makes it specifically clear that “the court shall apply laws voted by the Federal Assembly”. That is to say, it doesn't exercise judicial review over the laws passed by the Central Government. The election of judges by the Federal Assembly further assert the inferior position in fact denigration of judiciary in Switzerland.

 

9. MIXTURE OF PARLIAMENTARY AND PRESIDENTIAL FORMS:

 

The Swiss system of government is distinct in that it combines elements of both parliamentary and presidential systems. The Swiss Federal Parliament and the Swiss Executive have a close working relationship. The members of the executive (Federal Government) participate in the deliberations of the legislature.

 

Before the Federal Parliament, the members of the Federal Government (Ministers of the Federal Government) are accountable for their work and activities. These two are legislative elements. The Federal Government of Switzerland has a fixed tenure and cannot be voted out of power by the Federal Parliament.

 

It has a plural executive and is made up of all political parties. It is impossible to oust the Federal Parliament. Indeed, these qualities are presidential. As a result, the Swiss system is both parliamentary and presidential in both structure and operation.

 

10. PLURAL EXECUTIVE:

 

The Swiss constitution's provision for a collegial/plural executive is one of its distinctive features. A seven-member Federal Government exercises all of the federation's executive powers. Collectively, the seven members have authority to exercise power Article 177(1) declares “The Federal Government shall take it decisions as a collective body.” Each year, two of its seven members are chosen to serve as President and Vice President, respectively.

The Vice-President is elected as the President in the next following year, and a new member is chosen to serve as Vice-President. Each member has the opportunity to serve as President and Vice-President as the process goes on. For one year, the President carries out all duties associated with being the head of state.

 

Collective responsibility does not exist before the Federal Parliament. As a result, Switzerland's Federal Government is a distinctive plural executive.

 

11. BICAMERAL LEGISLATURE:

 

Swiss Federal Parliaments is a bicameral body. The House of Representatives and the Senate are its two houses. The first is the lower, popular national house that speaks for Switzerland's citizens, and the second is the upper house that speaks for the Cantons and their equal sovereign authority. Each full Canton has two seats, and each half Canton has one.

 

The term of office for members of the House of Representatives is four years, whereas senators' terms are determined by the cantons they represent. In actuality, the members of the upper house are not elected simultaneously.

 

The two Houses work together to exercise the legislative, executive, financial, and judicial powers that belong to the Federal Parliament. In every area, the two Houses are equally powerful.

 

12. BILL OF RIGHTS:

 

The inclusion of bill of rights in the new Swiss Constitution (2000) is a significant change. The basic, civil, social, and political rights of the Swiss people are now outlined in Title 2 Chapters 1 and 2 and Articles 7 to 40 of the Constitution. The Rights of Human Dignity, Equality, Religion and Customs, Freedom of Expression, Freedom of the Media, Association, Domicile, Property, Economic Freedom, Judicial Protection, Citizenship and Political Rights are just a few of the 34 rights that the Constitution recognizes, grants, and guarantees.

 

The Swiss Bill of Rights is a very extensive bill that includes almost all of the freedoms and rights that are recognized as necessary for civilized living and the enjoyment of the right to life.

 

13. CONVENTIONS OF THE SWISS CONSTITUTION:

 

Since 1848, the Swiss constitutional system has developed and produced a number of constitutional conventions that have governed nearly all political institutions' behavior. In the Federal Government, after the President's one-year term expires, the Vice-President takes over as leader of the government, and a new Vice-President is elected. Every year, this procedure is repeated.

 

In the very next year, the vice-chairmen of the two Houses of the Federal Parliament take over as chairs. Despite having equal authority under the Constitution, the House of Representatives routinely exercises more authority than the Senate. Each judge on the Federal Court is appointed for a six-year term, but by a convention, he is repeatedly elected without opposition.

 

As long as they continue to perform well, members of the federal government are used to be re-elected. Another Convention stipulates that each of the Cantons that speak the three major languages continues to receive a seat in the Federal Government. The Cantons of Berne, Geneva, and Vaud are additionally always given a seat in the Federal Government.

 

14. PURPOSE OF THE STATE:

 

The Swiss Constitution outlines the purpose of the Swiss Federation in Article 2. It describes the following purposes,

 

      1.      “The Swiss Confederation shall protect the liberty and the rights of the people, and shall ensure the independence and security of the country.

      2.      It shall promote the common welfare, the sustainable development, the inner cohesion, and the cultural diversity of the country.

      3.      It shall ensure equal opportunities for all citizens to the extent possible.

      4.      It shall strive to secure the long-term preservation of natural resources, and to promote a just and peaceful international order.”

 

Above discussed all are the salient features of the Swiss Constitution and those made the Swiss Constitution unique.