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.