THE FORMAL LEGAL FRAMEWORK

The Guarantee Process, or the Formal Limits Set to the Cantonal Constitution

Since most cantonal constitutions are very old, it is necessary to draft new structures aimed at modernizing the state.

From that standpoint, Switzerland represents an exception because the new Federal Constitution of the Swiss Confederation contains a provision devoted precisely to this topic.¹⁶

Table 6.1

Recent Constitutions with Some Specifically “State” Elements.

Table 6.1 (Continued)

Table 6.1 (Continued)

Art. 51 Cantonal Constitutions

1 Every Canton shall adopt a democratic Constitution. The cantonal Constitution must be approved by the people, and must be subject to revision if a majority of the people so requires.

2 The cantonal Constitutions must be guaranteed by the Confederation. The Confederation shall grant this guarantee, if the Constitutions are not contrary to federal law.

This provision is the same as those of Articles 5 and 6, respectively, of the 1848 and 1874 Constitutions, and it contains three different elements: (1) the obligation (and not only the possibility) for each canton to adopt a “special rule” that fulfils the role of a constitution and is not contrary to federal law; (2) the obligation for each canton to submit its constitution and every amendment to it to the legal control of the Confederation, in order to receive its guarantee; and (3) the obligation for the Confederation to guarantee the cantonal constitutions and their amendments as long as they conform with federal law and, once it has guaranteed them, to protect them.

Article 51, paragraph 1, contains two rules that directly affect cantonal constitutions: the first is the democratic principle (called the “republican principle” in the 1874 constitution) and the second is the requirement of a minimum of direct democracy (for the adoption and the modification of the cantonal constitution).

The Democratic (or “Republican”) Principle

The democratic principle established by the Federal Constitution is not too constraining, because the text is so vague that it requires only the minimum criteria.¹⁷ It requires the canton to have a parliament capable of taking the most important decisions (concerning laws, finance, planning), and it must be elected according to all the classical rules of liberal democracy by a universal and secret ballot after an election campaign where the equality of the competitors and freedom of communication are guaranteed. The wording of Article 6 in the 1874 Constitution had stipulated that cantons had to guarantee the existence of political rights “according to republican forms – be they representative or democratic.” Since all cantons have been organized as liberal democracies for a long time and guarantee to their citizens a large range of political rights, Article 6 had therefore no practical importance as a fundamental law of political harmonization.

But because the text of the Federal Constitution does not prescribe anything more, the cantons could (if they wished) institute parliamentary regimes similar to those in many European countries; that is, the parliament could dominate the government. None of them has done so, however. It is the same with democracy. The democratic principle applies only to the cantonal constitution itself. For the rest, a representative system could be sufficient, meaning that neither laws, nor finances, nor plans could be submitted to a popular referendum, and that none of these items could be the object of a popular initiative. Nevertheless, none of the cantons has reduced its democracy to this minimum. On the contrary, all of them have increased the instruments of direct democracy to the extent that they are more democratic than the Confederation itself. For instance, they all allow legislative initiatives, and some of them even allow an initiative aimed at the resignation of the cantonal government, while some have also instituted referendums against ordinances, and not only laws.

Direct Democracy

As already mentioned, the minimum of direct democracy imposed on the cantons concerns only the cantonal constitution itself, which is submitted to a compulsory referendum. This applies not only to a new constitution replacing an old one (which took place in almost all cantons recently) but also to any amendments to the current constitution, even the smallest ones, which are much more frequent because cantonal constitutions, like the federal one, are quite flexible and therefore subject to many amendments. In short, the compulsory referendum means that any change in the wording of the canton’s constitution is at any time fully legitimated by a popular approval. The Federal Constitution also requires the cantonal constitution to be amended according to an initiative process: that is, an amendment process has to be launched if a majority of the cantonal electorates ask for it.

Parliamentary Practice

It is extremely rare for the guarantees of the cantonal constitutions to be ignored. It did happen once to one provision (and it was more a kind of political game than anything else), but never to a whole constitution. Parliamentary practice is extremely respectful of the cantons. A provision of a cantonal constitution is censured only if there is absolutely no possibility of interpreting it in accordance with federal law. If the Federal Assembly has severe doubts about a provision, it gives its guarantee with the reservation that this provision is to be understood in a specific sense. This is also very rare. It has happened twice and concerned provisions dealing with nuclear energy in the constitutions of Basel-Landschaft in 1986 and Geneva in 1988. In these two cases, the Federal Assembly invoked only the power of the Confederation over nuclear energy (Article 24 of the former 1874 Constitution and Article 90 of the 1999 Constitution).

The Process of Granting the Guarantee

The Federal Constitution remains silent about the process of granting the guarantee itself. From a formal point of view, there is a short ordinance of the Federal Assembly concerning the guarantee of cantonal constitutions (Arrête de l’Assemblee federale relatif à la garantie des constitutions cantonales), dated 16 August 1851 (RS 131.1), but it gives very little detailed information. Practice has therefore developed some key principles. The most important steps are the following.

THE OBLIGATION TO ASK FOR THE GUARANTEE. Newcantonal constitutions or amendments have to be submitted as soon as possible to the Federal Council with a request for their approval.

THE MESSAGE FROM THE FEDERAL COUNCIL. The Federal Council examines the constitutional rules submitted to it for their conformity with Article 51, and then writes a “Message” to the Federal Assembly, which receives messages twice a year, for the summer and the winter sessions.

THE DECREE FROM THE TWO COUNCILS. In Switzerland any decision of the Parliament has to be accepted with the same wording by both chambers. Both chambers have instituted a committee in charge of examining cantonal constitutions whose deliberations are based on the Federal Council’s message. The process for reconciling divergent opinions between both chambers is simplified by the practice that if one chamber upholds its rejection, the guarantee is refused. The Federal Assembly decides whether the guarantee is granted or not, and its decision takes the form of a “simple ordinance” (Arrête simple). Why such a simple form and not a law? It is a matter of standard usage and customary law. But it seems highly questionable to submit to a referendum a law deciding whether or not a cantonal constitution conforms to Article 51, since it means that there is no recourse against a negative decision of the Federal Assembly. Even if a canton considered that the guarantee had been refused for the wrong reasons, it could not complain to the Federal Court, because in such a case the Court would be considered a superior authority and no longer a parallel one.

PUBLICATION OF THE ORDINANCE GRANTING THE GUARANTEE According to an old law,²⁰ the Confederation has to publish “an official collection of cantonal constitutions and the ordinances granting their guarantee,” the constitutions being published in their original language. Currently, cantonal constitutions are published in the first volume of the Systematic Collection of Federal Law, but ordinances of guarantee are no longer published. It is, however, possible to find them in the Feuille federale.²¹