This article throws light upon the six stages involved in the evolution of constitutionalism in Switzerland. Some of the stages are: 1. From the Earliest times to 1291 2. From 1291 to the French Revolution 3. From the Period of the French Revolution to Sonderbund War (1847) 4. The Period of the First Written Constitution (1848-74) and Others.
Stage # 1. From the Earliest times to 1291:
Switzerland, like most other countries, was initially inhabited by small tribes living in Cantons- separate small units, which were easily brought under the Roman Empire. In the 9th and 10th centuries, as parts of the Roman Empire, Swiss Cantons had to take part in wars. Thereafter, the Cantons were united with Germany and the union continued until the 13th century.
The German King Fredrick-II, however, felt that neither was it possible to protect these Cantons from foreign invasions nor was it possible to keep them under suppression and domination for all times to come. Consequently, he entered into agreements with these Cantons whereby these were made autonomous parts of the German empire.
In 1231, Uri got its independence by a royal charter. In 1240, Schwyz and Unterwalden (Obwalden) got their independences through similar charters.
Stage # 2. From 1291 to the French Revolution:
In 1291, three Cantons (Uri, Schwyz and Unterwalden) entered into a Perpetual League- ‘an everlasting alliance’ (a confederation) to withstand the attempts of Hapsburg rulers to re- bring them under their control. The objective of this alliance was to secure common defence for self-preservation.
The success of these three Cantons in this direction encouraged five other Cantons to join the League in 1353. It gradually became known as a Confederation/League. When in 1386, the League secured its second success against Austria, it became further Strong and popular. Other Cantons came forward to join it and by 1513, its membership came to be 13. All of these were German-speaking Cantons.
The Cantons retained their sovereign statuses and yet as members of the Confederation secured strength. In 1648, the Confederation was recognized by the Treaty of Westphalia. The primary purpose of this loose union was the defence of the independence of action which each of the members claimed for itself. This confederation could remain in existence till it was over-run by the conquering armies of France in 1798.
Stage # 3. From the Period of the French Revolution to Sonderbund War (1847):
The third stage in the evolution of Swiss constitutionalism came into being when the Swiss Federation was over-run by the armies of the French revolutionaries. In 1798, France made it a protectorate. A unitary state, under the Helvetic Republic, was established in Switzerland. A centralized system of rule was established in Switzerland.
This centralized system of government was totally opposed to the Swiss tradition of local autonomy. It, therefore, invited a strong opposition from the Swiss people.
Even a strong ruler like Napoleon could not keep the Swiss under control. In 1803, by the Act of Mediation, the constitutions of the Cantons were restored.Thus, the Helvetic Republic came to an end. The old Confederation was revived though in a modified form through a Federal Pact.
Article I, of the Pact declared that the Cantons were uniting: “for their common safety and the preservation of their liberty and independence against all foreign aggressions as well as to preserve internal peace and order.” The Congress of Vienna recognized the Swiss Confederation.
The period of French suzerainty proved to be a blessing in disguise as it provided an opportunity to the Swiss people to live as one nation and to struggle collectively for securing their rights. The Act of Mediation added six more Cantons and in 1815, three French speaking Cantons came forward to join the confederation. Thus, Switzerland came to be a confederation of 22 Cantons.
However after 1815, there broke out an intense struggle between two conflicting views- one advocating greater unification and centralization and the other favouring maximum autonomy for the Cantons. The period between 1815-48 witnessed a struggle between the centripetal and centrifugal forces – the Radicals and the Federalists respectively.
Seven Catholic Cantons favoured Cantonal autonomy and for securing their freedom from the confederation formed the Sonderbund – the armed league.
On November 4, 1847, the Swiss Diet (Assembly) decided to take military action against the Sonderbund League and a civil war broke out in Switzerland. The war lasted for 19 days and resulted in the defeat of the Sonderbund League and the victory of federalists. It set the stage for the establishment of a full-fledged federal state in Switzerland. It was accomplished by the Constitution of 1848.
Stage # 4. The Period of the First Written Constitution (1848-74):
Behind the triumph of the centralists was the full support of the Radical Party. After the victory of the federal forces, the Diet constituted a 14-member Committee of Revision, for framing such a constitution for Switzerland as was to be free from the weaknesses that characterised the Pact of 1815.
The constitution drafted by this committee was first approved by the Diet and then submitted to the people for a popular referendum. In the referendum, both the majority of the people and the Cantons over-whelming approved the new constitution.
“This constitution, transformed the League of the Cantons, which Switzerland had been for five centuries and a half, into a federal state” (Rappard). The process of unification of the Cantons into a real federal polity was affected successfully.
The constitution established several political institutions, which still continue to operate in Switzerland: Bi-cameral Federal Parliament, Collegial Executive, the institutions of Referendum and Initiative, the Federal Court and a common Uniform Citizenship for all the citizens of all the Cantons.
Further, the Constitutions of 1848 gave recognition to the sovereignty of the Cantons in matters not granted to the Federal Government. This was a compromise made to pacify the Cantons and to secure their willing participation in the Swiss federation.
Stage # 5. From Total Revision of the Constitution in 1874 to January 2000:
After 26 years of the operation of the first constitution, a total revision of the constitution was made in 1874. This was made for strengthening centralization. It was approved by 2/3rd majority of the constituents. It laid down deep the legal foundations of the Swiss constitutional system which continued to operate till the beginning of 21st century.
By 1874 revision, an integrated judicial system for all the Cantons and the federation was established. The Federal Tribunal was strengthened and made a powerful federal court.
Further, it provided for the nationalization of railways under the ownership of the Federal Government and laid down that legislation was to be referred to the Swiss people, not as inhabitants of Cantons. After 1874, the Swiss constitutional system continuously worked on the basis of the totally revised constitution till the year 2000 when it was again totally revised.
Stage # 6. Total Revision of Swiss Constitution (1999):
The draft for a total revision of the Swiss Constitution of 1874 was adopted by the Federal Parliament on 18 December 1998 and, thereafter, it was put to a referendum. The people and Cantons of Switzerland adopted the total revision of the Constitution on 18 April 1999 and the decree for its enforcement was made by the Federal Parliament on 28 September 1999.
The new totally revised Constitution came into force w.e.f. 1 January, 2000.
The new constitution involved a complete revision of the 1874 Constitution and yet retained the structure of Swiss Federation in its previous form i.e. the one existing since 1874. It, in-fact, consolidated the old constitution and all the amendments which had been made in it between 1874 to 1999 were incorporated in it.
The most major addition that was made in the Swiss constitution (which in its totally revised form has 196 Articles instead of 123 Articles) was the incorporation of a very detailed bill of basic rights of the Swiss people as well as the enumeration of the social goals before the Swiss Federation.
It also contained a more detailed discussion on the Federal-Cantonal relations. It involved, (from Articles 42 to Article 136) an extensive exposition of the tasks to be performed by the Federation and the Cantons. The new constitution has been in operation since January 2000.
The totally revised new constitution uses the word Swiss Federation in place of the word Swiss Confederation. Article I of the Constitution declares that the Swiss Federation consist of the Swiss people and the Cantons.
Switzerland continues to be a federal polity, a direct democracy, a liberal democratic political system with a collegial executive (Federal Government, initially called Federal Council), a bicameral Federal Parliament (Initially called Federal Assembly) and a Federal Court (Initially called Federal Tribunal).