THE NECESSITY OF REDRAFTING CANTONAL CONSTITUTIONS

Interestingly, the arguments put forward by the cantons for launching a complete revision of their constitutions, as well as the goals they want to reach, are quite similar. They can be summarized for our purposes as follows.

The Necessity of Revision

In their drafts, the cantonal founding fathers have put forward five arguments.

1. The current constitutions are too old and therefore no longer adapted to contemporary realities.

2. Most cantonal constitutions have been made “heavy” by many partial revisions (constitutions in Switzerland are flexible and therefore often amended) and have in consequence lost much of their coherence, often becoming unreadable or incomprehensible to many citizens. It is necessary therefore to restructure the text from a didactic point of view. Moreover, old constitutions have no margins, no subtitles, and often no structure.

3. From a formal point of view, cantonal constitutions are incomplete. Some provisions have become obsolete or useless over time, while others contradict federal law and still others deal with topics that could be dealt with at a lower level. In other words, there is a widening gap between the living constitution and its wording.

4. The constitutions go back to a time (often to the nineteenth century) when they had one single goal, which was to organize the state along contemporary patterns. But since then many socio-political changes that should be taken into consideration in a modern constitution have occurred (for example, the rise of the welfare state and the social state for youth and elderly people, progress in health care and the costs linked to them, major developments in communications, the transition from an agricultural to an industrial and then to a service sector economy, and an acceleration in processes of globalization).

5. The most pressing problem identified by leading politicians has been the fact that the old constitutions did not provide any solutions to many contemporary problems: data protection, European integration, cooperative federalism, the cantons’ participation in foreign affairs, equality between men and women, the protection of the environment, the role of the media, and public information.

The Goals to Be Reached

It is sometimes difficult to distinguish motives from goals, the latter being simply the resolution of the problems caused by the former. But once again, even when the presentation of the goals to be followed sometimes differs from one canton to another, they remain quite similar. What follows is a selection of those that have been quoted in order to illustrate the potential of a new constitution. Constitutional revisions are intended

1. To allow for a better definition of the state’s goals and tasks.

2. Within this framework, to (re) organize the tasks and activities of the executive, the parliament, the administration, and the judiciary, as well as the relations and ties between these powers.

3. To define more accurately current relations between the churches and the state, one of the most important cantonal powers.

4. To consider a detailed bill of rights, even if human rights are guaranteed by federal law.

5. To allow for a better provision of political rights, among other ways, through the creation of new and more modern forms of direct democracy (so important in Switzerland).

6. To redraft the structure of the canton, especially its division into districts (in the cantons where they exist), municipalities (communes), and, if necessary, regions.

7. To define more precisely the allocation of tasks between the cantons and the municipalities, as well as financial equalisation between them.

8. To reinstate the constitution as the cornerstone of the canton as a real state; new constitutions have to reassert the value of cantonal identity, especially in relation to centralizing trends.

9. To permit a better presentation of citizens’ rights and duties.

10. To awaken cantonal consciousness and the citizens’ public spiritedness by stimulating the interest of young citizens in politics.

11. To create some new institutions, for instance, the office of ombudsman or a council of magistrates, in order to reinforce the state’s neutrality.

Further Reflections

The complete revision of a cantonal constitution is no longer one of the burning public issues that raise citizens’ passions, contrary to the “revolutionary” spirit of the nineteenth century. Nevertheless, it can still launch intense political and legal discussions among politicians, public authorities, and civil society; that is, it can mobilise debate at the level of the establishment.

Undoubtedly, the most important reason for constitutional redrafting is an aggiornamento of human rights and political rights. This is quite paradoxical since human rights are primarily guaranteed by the federal constitution. Nonetheless, their incorporation in the constitution provides a useful opportunity for the population of the canton to become conscious of its rights (the didactic element).

It is necessary to look more closely at the work done by other cantons; this comparative work has contributed to the fact that cantonal constitutions remain quite similar from a material point of view, even if, as table 5.1 shows, they remain formally quite different (for example, in the number of provisions, the length of the preamble, and the way of listing rights and tasks).

A complete revision of the cantonal constitution goes far beyond a simple cosmetic process (for this reason some cantons have refused to embark on it or have delayed it), but at the same time a new constitution does not have to turn everything upside down. A balance has to be struck between innovation and tradition. Experimentation for its own sake must be avoided, and everything that has proved to be useful in the past must be preserved. For instance, the canton of St Gallen considered making two partial revisions in order to deal with some “sensitive” topics before launching a total revision. And the canton of Vaud anticipated a long transitory period in order to implement all “sensitive” topics in its new constitution (among other things, merging districts and municipalities).

Since a new constitution represents a unique opportunity to strengthen the bonds between the population and its canton, several cantons have used the solution of electing a constituent assembly. Of the twenty cantons that have launched the revision process, eight have done so, thus allowing civil society to play a major role in drafting the constitution. In the fourteen other cantons, the constitution has been drafted either by a parliamentary committee or by one nominated by the executive, but to date no complete revision has been launched by a popular initiative.¹⁴

Some cantons have inserted the revision process into a special framework, for instance for the seven hundredth birthday of Switzerland in the case of Zurich or a political crisis in the case of Vaud. Others, to the contrary, have deemed it unnecessary to deal with all current topics in the constitution.