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19 lutego 2019

Swiss Democracy – Chance for Other Countries?

Zentralbibliothek_Zürich_-_Gedenkblatt_zum_19_April_1874_-_000005293 By Conrad, E., , – Zentralbibliothek Zürich, Public Domain, https://commons.wikimedia.org/w/index.php?curid=25713226

Swiss Democracy – Chance for Other Countries?

The Institutional and Historical Determinants of the Swiss Political System

1.1. The Beginnings of the Swiss Statehood

The history of Switzerland is undoubtedly the key to understanding the country’s political system and the mechanisms of its institutions. The historical development of the Swiss political system is characterized by unique solutions despite the fact that – when compared to other countries – its history is rather short and “poor”.

In ancient times, the area of the modern Swiss state was populated by Rhaetian and Celtic tribes. The name Helvetia comes from the Helvetii, the representatives of a Celtic tribe that settled in the Aare valley. However, the beginnings of modern Switzerland date back to the 1st of August, 1291, when three cantons – Uri, Schwyz, and Unterwalden – formed a confederation [A Confederation is a loose union of states based on an agreement made usually in order to pursue a common foreign policy. The states remain sovereign and, as a rule, there is no centralised power [author’s note].] and made an alliance in order to jointly defend their lands against the Habsburgs. In this way, a so-called eternal union was made that would later become the foundation of the Swiss state.

This pact, known as Eidgenosenschaft – i.e., “a union made under an oath” – was confirmed by a special declaration, the so-called Federal Letter, which was also the first political act of the Swiss Confederacy. The citizens of the cantons, i.e., the signatories of the pact, expressed their belief regarding the alliance’s permanence and declared mutual aid in defending their liberty and sovereignty. They also pledged not to recognize any settlements imposed on them by an external power and to settle any disputes by peaceful arbitration. At first, the document was classified. Its content was not revealed before the battle of Morgarten in 1315 [The Battle of Morgarten – the battle (15 November 1315) in which the citizens of the cantons of Uri, Schwyz, and Unterwalden defended their rights to independence from the Habsburgs. It took place near Morgarten in the canton of Zug [author’s note].] Later, it was lost and eventually found in an archive in Stans in 1760. The document was translated and published in German.

Throughout the subsequent centuries Switzerland’s statehood developed, the Swiss political system underwent many changes, and the additional cantons and communes that joined the confederation retained their sovereignty.

A turning point in the history of Switzerland occurred in the late 18thC. when the French army, led by Napoleon Bonaparte, occupied its territory and destroyed the existing political and social order.

The direct cause for the French army’s invasion were the inter-cantonal riots. In July 1798, undoubtedly influenced by the French Revolution, the citizens of the canton of Waadt – threatened by the authorities of the canton of Berne – sought the help of the Napoleonic army. After the fighting, Berne and the whole Switzerland was conquered by the French. On the 12th of April, 1798, in the city of Aarau, the constitution of the so-called Helvetic Republic was officially proclaimed. Based on the French model, it was established as a centralized, unitary state [A unitary state is characterized by internal political and administrative unity. All of its administrative units are organised identically and subordinated to its central authorities [author’s note].]. Drawn up in Paris, the constitution was an attempt at combining the progressive and enlightened ideas born by the French Revolution with the concept of a state, governed top-down, which – up to then – was a notion completely foreign to federal Switzerland. The changes introduced by the constitution of the Helvetic Republic were essential to the cantons’ status and limited their competencies. The union of sovereign countries was replaced with a unitary state without any borders between the cantons, which, following the French example, were renamed as “departments”.

1.2. The Political Situation Before 1848

In the summer of 1802, the French army withdrew from the Helvetic Republic by the order of Napoleon Bonaparte. The reasons were the Swiss’ growing protests and the cold calculation of Napoleon himself, who expected the French to soon come back to the Republic as the saviours of a divided country.

After the French left, the Swiss could independently make attempts at reforming their state. However, even adopting the so-called Second Constitution of the Helvetic Republic did not put an end to the internal unrest and riots. The whole of Switzerland was ridden with rebellions and conflicts. The advocates of the cantons’ sovereignty and the federal structure of the state rose to prominence. Due to this, on the 19th of February, 1803, Napoleon imposed upon Switzerland a new constitution – the so-called Act of Mediation – which revived the principle of federalism. The Act came fully into effect on the 10th of March, 1803, bringing an end to the Helvetic Republic and, as a result, recreating the former administrative structure of the state.

Therefore, the political system imposed by France did not survive long. Centralising a confederation of free states proved to be impossible. On the other hand, the Act of Mediation turned out more durable with its effects still visible even in 1848, when the new constitution was being prepared [Especially in terms of separating the church and the state, standardising weights and measures, as well as establishing a common currency, legislation, and army [author’s note].]

The Act limited the competencies of the federal authorities to the following domains: foreign policy, military, ratifying tariffs, and mediation in inter-cantonal conflicts. At the beginning of the 19thC., these competencies belonged to the assembly of the cantons’ representatives, and in the period between its sessions they belonged to the Landmann (the president), who also represented Switzerland abroad. At that time, however, the confederation’s foreign policy was still strictly dependent on France.

It should be pointed out that the time during which the Act of Mediation had been in effect, the confederation experienced a political stabilisation. Due to being strongly dependent on France, however, Switzerland was highly sensitive to political events in other countries. The fall of Napoleon in 1814 also marked the end of the political system based on the Act of Mediation. The first half of the 19thC., until 1848, was a very difficult era for Switzerland. Great changes that occurred in the areas of politics, society, economy, and technology transformed the country’s and its people’s life.

The decision regarding the further status of the confederation was made at the Congress of Vienna, during which, on the 20th of March, 1815, the then Swiss state was granted neutrality and inviolability of its territory. The European powers agreed that a neutral Switzerland would be a perfect buffer zone between France and Austria, thus, contributing to the political stability in Europe. In the meantime, Switzerland regained its confederation’s territories and, on the 7th of August, 1815, the 22 federated states signed an agreement – an inter-cantonal pact – that made Switzerland a federation [Federation, as opposed to confederation, is a state that comprises autonomous parts under a common (federal) government. The parts that constitute a federation have an internal autonomy and can make their own laws in certain domains. The common factors are, however, the currency, foreign policy, and defence [author’s note].], as opposed to its previous status as confederation [The union has used its traditional name – the Swiss Confederacy – as a reference to the alliance made between the three cantons on the Rütli mountain in 1291 (Ger. Schweizerische Eidgenossenschaft, Fr. Confédération Suisse, It. Confederazione Svizzera) [author’s note].].

Around 1830, political thinking changed to be more favourable to the idea of returning to a centralised state. There were also attempts at discrediting the inter-cantonal pact and the assembly of the cantons’ representatives.

In the years 1830-31, democratic revolutions occurred in twelve cantons that lead to a replacement of the former authorities with modern democratic institutions. However, citizens still lacked a direct influence on legislation and decision-making. Between 1831 and 1835, there began attempts at modernising the federal pact of 1815. In the early 1830’s, many projects aiming at revising the pact were made but did not yield any positive results. Both the opposition during the 1830-31 constitutional debates and the social movements of 1839-41 demanded the right to veto political decisions. Today, this right can be considered as the precursor of modern referenda. The first veto was introduced in the canton of St. Gallen in 1831. As a democratic instrument, veto was not practical since it did not pose a threat to the liberal parliamentary democracy. The democratic opposition was still too weak to be able to efficiently utilise the right to veto. Finally, in 1848, the assembly of the cantons’ representatives declared its own dissolution, which began the modernisation of the federal state and changed the 1815 pact into a constitution. The changes, later named as the Bern Project, were accepted by fourteen cantons and one half-canton. A city in which a given session of the parliament was taking place was temporarily considered the capital of the country.

1.2. The Constitution of the Swiss Confederation in 1848

In 1847, a civil war broke out between the Roman Catholic and the Protestant cantons. Catholics tried to prevent the strengthening of the central power, which was the goal of the then ruling representatives of the Radical Party. The hostilities lasted for a month resulting in about 100 deaths. It was the last significant armed conflict in Swiss territory. Since then, the country has never experienced the horror of war. As a result, in 1848, the federal constitution was drawn up, and its announcement marked a turning point in the shaping of the Swiss political system. The constitution introduced a system of state governance based on the instruments of direct democracy, while leaving the cantons and the communes the right to self-govern on local issues. In the new constitution, the state declared itself as religiously neutral and adopted the principle of territoriality according to which multilingual Switzerland legally acknowledged every language used within its borders. All linguistic communities acquired the right to be – proportionally to their size – represented in the state’s political institutions. Thus, the first proposal founded upon the instruments of direct democracy became a fact.

The new constitution comprised of a preamble and three chapters that contained 114 articles, as well as interim provisions. The confederation of cantons was officially replaced with a federation whose members ­­– the cantons – had to voluntarily give up a certain part of their sovereign rights in order to submit to the new power. The new federation retained the traditional name of Confederacy and obliged itself to maintain the unity of the Swiss nation while ensuring internal order and peace. In this way – after gaining competence in foreign policy making, declaring war and peace, organising the military, introducing tariffs, establishing postal and monetary systems – the federation claimed the right to intervene in the case of internal conflicts between cantons or a potential civil war.

Apart from guaranteeing itself international independence and internal peace, the federation set itself two main goals: the protection of the cantons’ rights and liberties, and the pursuit of citizens’ general prosperity. Among the cantons’ competencies, the schooling system, judiciary, legislation and police remained. The union guaranteed all of its citizens freedom of religion, speech, and association, as well as the right to assembly. The essential fact is that, from the very beginning, the federation ambitiously intended to create a Swiss nation. In order to do that, the freedom to settle was introduced, which meant that every citizen of the new Swiss state had the right to choose a place to live on the federation’s territory without the risk of losing any of their basic rights.

However, the most significant innovation introduced by the Constitution of 1848 was undoubtedly the establishment of the legislative and the executive arms of the central authority: the parliament, the government, and the federal tribunal. The parliament – the Federal Assembly – elected in general elections, was made up of two houses: the National Council, which represented the nation, and the Council of States (two deputies from each canton). An important novelty was the executive power, the Federal Council, that consisted of seven members representing different cantons, political parties, as well as linguistic and religious groups. The first Federal Council was elected on the 16th of December, 1848 and adopted a system of collective decision-making (the act of the16th of May, 1849). The first assembly of the two houses of the Federal Parliament took place in Bern, which was chosen to house the authorities of the newly established state, on the 6th of November, 1848. Since then, Bern has been considered as the seat of the federal authorities, though not as the country’s capital in the proper meaning of the term. The term “capital” refers to domination, whereas the Swiss do not tolerate any elements of domination in either political or social life.

Apart from establishing the new state order, the federal constitution of 1848 included the possibility of amending it. The amendments could not only be made through the obligatory constitutional referendum [The Swiss constitution uses the term “mandatory” for the obligatory referendum and “optional” for the non-obligatory one [author’s note].], but also through popular initiative, i.e., by the will of ordinary citizens. This set up the framework for the contemporary liberal government and its policy of modernisation. The constitution of 1848 should be considered as a declaration of will: at that time, democracy and the Swiss nation, as well as the nation state and the federal system, were still being defined as the young state’s goal – they were not yet a reality.

1.2.1.The Modifications of the Constitution of 1874 and 1891

The process of centralising and limiting the cantonal power in favour of the federal authority in Switzerland was not problematic. The cantonal constitutions could not include any regulations that would contradict the new federal order and had to provide the possibility to be amended at the majority of citizen’s will. Those constitutions, as well as the Federal Constitution, were repeatedly amended between 1848 and 1874. The most important amendment was introduced in 1874, although – despite many changes – it was still a continuation of the political system established in 1848. The changes introduced in the new constitution focused mainly on transferring some of the commercial competencies from the cantonal level to the federal one and on allowing the unification of civil law, especially its commercial branch.

The 1874 revision of the Constitution was not thorough and it retained basic federal institutions, such as a bicameral parliament, the Federal Council, as well as regulations concerning citizens’ rights and liberties. The modified constitution increased the competencies of the central power, specifically in military issues. The Federal Government took upon itself the responsibility for the total of military affairs and commercial law. The federation gained a significant influence over religious matters. Also, the competencies of the Federal Supreme Court were expanded regarding the conflicts between the cantons and the central government.

The most important amendment to the 1874 constitution was the introduction of the optional referendum [See Appendix II.], which affected the development of Switzerland’s constitutional system and the form of its political system as a whole. The amended constitution granted the central government essential competencies, but its decisions had to be implemented in stages since the authorities had to take into consideration the attitudes and the mood of the citizens taking part in a referendum. The amendments that extended the competencies of the Federal Council included the introduction of a common currency and changes resulting from the population growth and the industrial revolution.

Another modification was made in 1981. It extended the scope of the popular initiative [Ibidem.], which, from that time, was not only to be used to adopt a new constitution, but also to introduce individual constitutional amendments.

1.2.2.The 1999 Constitution

The current Federal Constitution of the Swiss Confederation was enacted in 1999. When it comes to the position of the parliament, there were no radical changes; “…in this regard Switzerland remained faithful to its political tradition and retained the foundations of the system established by the constitution of 1848.” [P. Sarnecki, Zgromadzenie Federalne. Parlament Konfederacji Szwajcarskiej, Warszawa 2003, p. 7.]. There was no intention of changing the political principles that had been proven for 150 years.

On the18th of December, 1998, the Federal Assembly proposed a draft of the new Federal Constitution. It was accepted by the nation and the cantons in the mandatory referendum on 18 April 1999, and it came into effect on the1st of January, 2000. In this way, after 125 years, the constitution of 1874 was replaced. It should be emphasised that the basic values of the Swiss democracy, such as federalism, direct democracy, welfare state [The welfare state principle is a political commitment according to which the state is supposed to provide its citizens with the basic means of subsistence. It also includes the task of evening up the inequalities between the rich and the poor through the principle of social equality. Providing a safety net for the old age and those at risk – e.g., in the case of disease, disability, or unemployment – are the foundations of the welfare state [author’s note].] and liberal rule of law were retained and only adjusted to adhere to modern times. The fundamental principles of the 1999 constitution are: human dignity as the state’s highest value, welfare state, free competition and subsidiarity. [The principle of subsidiarity means that any authority, and especially the political authority, should play only a supportive (auxiliary) and stimulating role in regard to the efforts undertaken by autonomous and independent individuals who established a given authority. Wherever it is possible and necessary, the state should not deprive the people of their power (whether parental, official, or political on any level), which they can exercise on their own will and by their own means, and through which they can fulfil themselves for the general, as well as their own, benefit. Any social intervention should be primarily motivated with the intention to help the members of society, not to replace or thwart their own initiative. Encyklopedia PWN, https://encyklopedia.pwn.pl/haslo/subsydiarnosc;486984.html, [accessed 10 August 2017].]

The constitution consists of a preamble and six clearly formulated titles:

  • Title I: General Provisions
  • Title II: Fundamental Rights, Citizenship and Social Goals
  • Title III: Confederation, Cantons and Communes
  • Title IV: The People and the Cantons
  • Title V: Federal Authorities
  • Title VI: Revision of the Federal Constitution and Transitional Provisions

The new constitution retained the “three-level” political system made up of the communes, the cantons, and the federation. Although the fundamental territorial and political units are the cantons, a lot of weight is attached to the political and administrative role of the communes. [The communal tasks include: appointment of the authorities, management of assets through agreements, public finance, imposition and collection of taxes, granting citizenship, primary and secondary public education, maintenance and establishment of educational facilities, appointment of educational authorities and teachers, public healthcare and social welfare, provision of commonly accessible non-specialist healthcare, provision of essential means of subsistence to the needy, maintenance of public peace and order, local planning, formulation of area development plans and issuing location decisions, organisation of public works, establishment, development, and maintenance of industrial services, as well as technical, cultural and recreational infrastructure [author’s note].]

The fundamental value of the Swiss constitution lies in the fact that it does not question the legal identity of the cantons. As Bohdan Górski rightly states, “The constitution does not turn against patriotism or attachment to the regional culture and identity. On the contrary, it integrates patriotism into the federal system, where it is a great force in service of a given canton and the Confederation.” [B. Górski, Jak przeżyć kapitalizm, Retro-Art., Warszawa 2013, p. 78-79.]

As I have already mentioned, Switzerland is a very diverse country in every respect. This diversity is the source of the specific role of the constitution, which – unlike in other countries – is not only a normative act, but also the actual foundation of the integrational process and identity of the Helvetic state. It cannot be forgotten that the Swiss nationality is based on the will of its citizens. That is also why the principles expressed in the Constitution are of particular significance. Among other factors, they are the bedrock of Swiss patriotism, which may seem odd to other nations.

1.3. Summary of the First Chapter

Through the course of history, the Swiss political system has evolved, and its democratic nature has matured and improved. This process is still going on. Today, the Swiss system can be described as “parliamentary-cantonal.” In 1848, Switzerland adopted the Federal Constitution and a system based on referenda, while local issues, such as taxes, judiciary, schooling, police, and welfare were left to the cantons. In 1874, amendments were introduced, which included the optional referendum. In 1891, the Constitution was amended once again, thus establishing a unique system, rooted strongly in direct democracy. The current Constitution of Switzerland was adopted through a referendum by the majority of voters in 1999.

The most important innovation of the 1848 Constitution – later amended in 1874, 1891, and 1999 – was the establishment of a political system based on some elements of direct democracy. It granted citizens a number of rights and liberties, including the freedom of speech, religion, and the free choice of the place of residence. The new political order was institutionalised according to the aspirations of the liberal-democratic cantons. The possibility to amend the Constitution – through a constitutional referendum, as well as the popular initiative – was introduced at the outset. This Constitution should be perceived as a declaration of will of its creators. Time has shown that the new democratic system, based on instruments of direct state governance with strong federal tendencies, was not just an imaginary goal – it has become a practical reality.

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