Thomas Fleiner: Class No. 9 Diversity and Constitution Case of Switzerland Belgrade Law Faculty Master Course on Comparative Constitutional Law Prof. Thomas Fleiner October 31 to November

Swiss Diversity / Fragmentation?

Language

French Italien German Austria Romonsh

Religion

Protestants (dark) 40% Catholics clear 46% Religion

Municipalities

Berne Jura CH Develop- Ment of Canton Jury by Secession and Self-de- termi- nation

French German A long language border- line?

Catholics Protestants A long border- line between catholic and protes- tant com- munities?

Fourteenimportant Principles to hold together multicultural states

Legitimacy Rule of Law Shared-Rule Self-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 Languages The 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 communities In constitution making 9. Power-sharing of cultural communities

Art. 45: Participation in federal decision-making 1 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 Cantons 2 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 of politics 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,, 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.