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Thomas Fleiner: Class No. 9
Diversity and Constitution
Case of Switzerland
Belgrade Law FacultyMaster Course on
Comparative Constitutional Law
Prof. Thomas FleinerOctober 31 to November 16
2011
SwissDiversity / Fragmentation?
Language
French
Italien
German
Austria
Romonsh
Religion
Protestants (dark) 40%
Catholics clear 46%
Religion
Municipalities
Berne
Jura
CH
Develop-Ment ofCanton Jury by
Secessionand
Self-de-termi-nation
French
German
A longlanguageborder-
line?
Catholics
Protestants
A longborder-
linebetweencatholic
and protes-tant com-munities?
FourteenFourteenimportantimportant
Principles to holdPrinciples to holdtogether multiculturaltogether multicultural
statesstates
LegitimacyRule of Law
Shared-RuleSelf-Rule
Democracy
Legitimacy
1. Take diversity serious
2. Father /Motherland for minoritiesMinderheiten
3. Composed Nation
4. Multiple Loyalties
Preamble Co: determined to live together with mutual consideration and respect for their diversity,
Art. 37 Co: 1 1 Anyone who is a citizen of a commune and of the Canton to which that communebelongs is a Swiss citizen.
Together, the peoples of the 23 sovereign Cantons of Switzerland united by the present alliance, to wit: Zurich, Berne, Lucerne, … and Jura, form the Swiss Confederation.
Rule of Law
5. Right to be different v. Equal rights
6. Four Dimensions of liberty:From, by, within and towards the state
7. Liberty and peace
Art. 4 National LanguagesThe National Languages are German, French, Italian, and Romansh
Art. 18 The freedom to use any language is guaranteed
70 2 The Cantons shall decide on their official languages. In order to preserve harmony between linguistic communities, the Cantons shall respect the traditional territorial distribution of languages and take account of indigenous linguistic minorities
Shared Rule
8. Participation of ethnic communitiesIn constitution making
9. Power-sharing of cultural communities
Art. 45: Participation in federal decision-making1 In the cases specified by the Federal Constitution, the Cantons shall participate in the federal decision making process, and in particular in the legislative process.2 The Confederation shall inform the Cantons of its intentions fully and in good time. It shall consult the Cantons where their interests are affected.
Art. 53 Number and territory of the Cantons2 Any change in the number of Cantons requires the consent of the citizens and the Cantons concerned together with the consent of the People and the Cantons.3 Any change in territory between Cantons requires the consent both of the Cantons concerned and of their citizens as well as the approval of the Federal Assembly in the form of a Federal Decree.
Self-Determination
10. Autonomy
11. Foster Diversity and overcome ethnification ofpolitics
Art. 3 Cantons The Cantons are sovereign except to the extent that their sovereignty is limited by the Federal Constitu-tion. They shall exercise all rights that are not vested in the Confederation.
Art. 2 Aims 2 It shall promote the common welfare, sustainable development, internal cohesion and cultural diversity of the country.
Democracy
12. Self-determination of individuals as goal
13. Compromise as asset
14. Conflict Management
Preamble: …resolved to renew their alliance so as to strengthen liberty, democracy, independence and peace in a spirit of solida-rity and openness towards the world,,
175 4 In electing the Federal Council, care must be taken to en-sure that the various geographical and language regions of the country are appropriately represented
Art. 44 Principles: 1 The Confederation and the Cantons shall sup-port each other in the fulfilment of their duties and shall generally cooperate with each other.2 They owe each other a duty of consideration and support. They shall provide each other with administrative assistance and mutual judicial assistance.3 Disputes between Cantons or between Cantons and the Confede-ration shall wherever possible be resolved by negotiation or mediation.
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