A GLANCE AT THE NEW CONSTITUTIONS

The Material Legal Framework

States are usually born out of some kind of revolution, and the new institutions emerge from the chaos and are defined independently of the previous ones, which are most of the time put aside because of the desire to change radically what took place previously.

Federalism imposes an allocation of powers between the two levels of government (Article 3, Federal Constitution). In recent years the matters for which the Confederation has responsibility have increased, so that the current allocation of powers and responsibilities could be roughly summarized as follows. Some fields belong to the exclusive power of the Confederation: customs, currency, postal matters, communications, and railroads and navigation. And some fields belong to the exclusive power of the cantons: police, social assistance, religion, compulsory schools, and health care.³⁴ There are, moreover, some hybrid fields with concurrent powers, which can be also divided into two categories: fields in which the power to legislate belongs to the Confederation and the power to implement to the cantons (such as weights and measures, traffic, military organisation, work, social insurance, and civil and criminal law), and fields in which the power to legislate belongs both to the Confederation and to the cantons (taxes, road building, hunting, fishing, and vocational training).

Cantons could have limited themselves in their constitutions to the fields in which they have exclusive powers, in particular to provisions devoted to the organisation of public authorities.

For example, the first element is the preamble. In this element the canton of Jura, for instance, was the first to include an international reference, invoking the 1950 European Declaration of Human Rights, but since Switzerland has ratified this declaration, this preamble is quite obsolete. In Nidwalden and Obwalden, the first new constitutions also contain the first preambles. Ironically, they are identical and speak of the protection of rights and freedoms and of strengthening the welfare of the community. Since then, new topics have been included in preambles, in response to new socio-economic trends, such as the topic of God and the creation, solidarity, democracy, ecology, nature and future generations, and the protection of the weakest.

The second element deals with co-operation. The canton of Jura has also been a pioneer in this field. A provision of its constitution provided that the canton should improve co-operation with other cantons, the Confederation, and peoples seeking solidarity. When this provision was introduced, the foreign relations of the cantons were strictly regulated by Articles 9 and 10 of the former Federal Constitution and were supposed to be limited to contacts with lower authorities about local matters.³⁵ Under the scrutiny of the Confederation, Jura was the first canton to make new use of the cantonal powers in foreign affairs.

The third element concerns human rights. Until 1999, the Federal Constitution did not contain a Bill of Rights. Basic rights were sometimes written into the constitution, but most of the time they were drawn up by the Federal Tribunal (Supreme Court). One of the goals of the 1999 Federal Constitution was to offer a bill of rights guaranteeing rights at the federal level, and these federal guarantees served as a basis for rights in the cantons, although cantons remained free to reinforce or strengthen some of these rights. For example, Bern recognized a right for citizens to be fully informed about the government’s operations. Therefore, even if they are redundant, most of the cantonal constitutions include a very detailed bill of rights. This might reflect a desire to have cantonal constitutions play an educational role for citizens, even if few citizens read such a document.

Social rights represent another interesting element. In this case, the problem is the same as for human rights. The legal effect of, for example, the right to housing or the right to work remains very limited. The prevalence of federal law means that these rights cannot be implemented without an amendment to the corresponding federal law. Nevertheless, they do serve to indicate to the legislature the route that it must follow. If they do not play a significant legal role, they are nonetheless politically important. Therefore, at least eight of the new cantonal constitutions specifically mention social rights or social goals.

Another typical element of the new cantonal constitutions is a listing of the state’s tasks or responsibilities. Since, as mentioned, many responsibilities attributed to the cantons are already listed in the Federal Constitution, it is redundant to include them once again in the cantonal constitutions, especially if they do not go beyond federal expectations. But bis repetita non nocet (it does not hurt to repeat things), meaning as long as authorities and people can understand that some of these tasks have a limited scope. In fact, most cantonal constitutions contain a very detailed list of cantonal tasks, allowing them to specify the relations between the canton and its communes and the role of ecology, and these can serve as real political programs.

Finally, the new cantonal constitutions are marked by an extension of direct democracy, even though in some instances they have adjusted the number of signatures that are required so that an initiative or a referendum will reflect population increases. Thus, a municipal referendum, which can be initiated by a certain number of municipalities and not only by citizens, is found in the recent constitutions of Basel-Stadt, Graubünden, Luzern, and Geneva. But this movement may have peaked. In Schwyz, the final version abandoned the municipal referendum, even though it widened the scope of the “normal” referendum by requiring a thousand instead of the two thousand signatures previously required. And Geneva, in its draft, tries to eliminate the compulsory referendum that is enshrined in the current constitution for certain matters concerning finances or housing.