Development of The Swiss Federal Constitution of 1999

DEVELOPMENT OF THE SWISS FEDERAL
CONSTITUTION OF 1999

Legal Memorandum

July 2013

DEVELOPMENT OF THE SWISS FEDERAL CONSTITUTION OF 1999

Executive Summary

This memo reviews the Swiss Federal Constitution of 1999, particularly its
formation, significant differences from the Constitution of 1848, prominent
aspects, and recent amendments.

In 1999, Switzerland introduced a revised Constitution to replace the
Constitution of 1848. The 1999 Constitution was proposed by the Federal Council
and approved through popular vote by Swiss citizens, and over half of the Cantons.
The 1999 Constitution includes a bill of rights, outlining the fundamental rights of
Swiss citizens, including the rights of citizens with disabilities. Additionally, the
1999 Constitution removed the requirement to back the Swiss Franc with gold and
updated the language to be more readable.

The changes to the Constitution, particularly the inclusion of fundamental
rights, were influenced by the human rights abuses of World War II and the
subsequent international human rights treaties that resulted. The inclusion of
international human rights standards in Swiss federal court decisions also led to the
desire to codify these standards in the Constitution.

Although some substantive provisions of the Constitution changed, the basic
structure of the Swiss Confederation remained the same. Like the Constitution of
1848, the 1999 Constitution outlines the duties of the Confederation and the
Cantons, as well as the relationship between the two entities; describes the
structure and responsibilities of the Federal Assembly and the Federal Council; and
provides substantial power to the citizens, allowing them to change the
Constitution through referendums and provide input on federal, as well as
international law.

After the enactment of the 1999 Constitution, several amendments were
made regarding a wide range of issues from finances, social policy, criminal law,
and political structures. Amendments can be made by the government through a
parliamentary bill or by citizens through a public initiative.

TABLE OF CONTENTS

Statement of Purpose 1

Introduction 1

Development of the Swiss Federal Constitution of 1999 2
The Founding of a New Constitution 2
The Addition of Fundamental Rights 3
Influences on the Inclusion of Fundamental Rights 4
Additional Changes 5

Prominent Aspects of the Swiss Federal Constitution of 1999 5
Responsibilities of the Confederation and Cantons 6
Responsibilities of the Cantons 6
Responsibilities of the Confederation 6
Foreign Relations 7
Government Structure 7
Federal Assembly 7
Federal Council 8
The Power of the People 8

Amendments to the Swiss Federal Constitution of 1999 9

Conclusion 10
Development of the Swiss Federal Constitution of 1999, July 2013

1
DEVELOPMENT OF THE SWISS FEDERAL CONSTITUTION OF 1999

Statement of Purpose

This memo reviews the Swiss Federal Constitution of 1999, particularly its
formation, significant differences from the Constitution of 1848, prominent
aspects, and recent amendments.

Introduction

Prior to 1848, Switzerland was a confederation of independent states, known
as Cantons, without a centralized government.
1
In the early 19th century,
Napoleon instituted a Mediation Constitution, which tried to create federal
institutions in Switzerland.
2
However, after Napoleon was defeated, many of the
Cantons reclaimed power as free members of the confederation,
3
thus weakening
the federal structure. In 1847, after a brief civil war, Switzerland unified the
Cantons under a federal government that was stronger than the remains of the
Napoleonic federal structure.
4
The Swiss Constitution of 1848 created a more
centralized government, which assumed the majority of the power and
responsibilities from the Cantons.
5
The reformed government was a combination
of a confederation and a unitary state, which was a compromise between
proponents for state sovereignty and proponents for a strong union.
6
The United
States Constitution and the French revolution heavily influenced the Constitution
of 1848.
7
The Swiss Government particularly valued the ideas of the separation of
powers, direct democracy, and subsidiarity.
8
The Constitution went through a
second revision in 1874, and the more recent third revision in 1999.
9

1
Walter Haller, The New Swiss Constitution: Foreign and International Influences, 30 INTERNATIONAL JOURNAL OF
LEGAL INFORMATION 256, 257 (2002).
2
All About Switzerland, History (Jul. 8, 2013), available at http://swiss-government-politics.all-about-
switzerland.info/swiss-history-traditions.html.
3
4
5
Swiss Federal Department of Foreign Affairs, The Constitution of 1848 (Jul. 8, 2013), available at
http://www.swissworld.org/?id=501.
6
Walter Haller, The New Swiss Constitution: Foreign and International Influences, 30 INTERNATIONAL JOURNAL OF
LEGAL INFORMATION 257 (2002).
7
The Federal Assembly The Swiss Parliament, Federal Constitution: History (Jul. 8, 2013), available in French at
http://www.parlament.ch/E/WISSEN/LI-BUNDESVERFASSUNG/Pages/default.aspx.
8
The Federal Chancellery, The Swiss Confederation: A Brief Guide, SWISS CONFEDERATION, 15, 16 (Dec. 31, 2012),
available at http://www.bk.admin.ch/dokumentation/02070/index.html?lang=en.
9
World Intellectual Property Organization, Switzerland (Mar. 11, 2012), available at
http://www.wipo.int/wipolex/en/details.jsp?id=11949.

2

The 1999 Constitution took three decades to establish and was enacted on
the 150th anniversary of the modern state of Switzerland.
10
The 1999 Constitution
includes 150 revisions of the Constitution of 1848, but maintains the structure of
the original Swiss Federation.
11
Among the most significant changes were the
inclusion of fundamental rights and the elimination of the gold backed Swiss
Franc.
12

Development of the Swiss Federal Constitution of 1999

The Founding of a New Constitution

For 30 years, the Swiss government debated the establishment of a new
Constitution,
13
until the Federal Council finally proposed a vote in 1996.
14
The
Federal Council consists of seven members who are elected by the United Federal
Assembly.
15
The proposed Constitution was generally well received by politicians,
although some conservative members lamented the increase of fundamental rights,
such as the peoples right to strike, claiming the new Constitution was not Swiss
enough.
16
The purpose of a new Constitution was to properly codify the
fundamental rights of citizens that had emerged over time through Swiss federal
court cases, in addition to the rights outlined in the European Convention of
Human Rights.
17
Lawmakers also wanted to change the overall language of the
Constitution to make it easier to read, as well as update provisions for modern
times.
18

Once the government passed the Constitution, Swiss citizens, as well as the
26 Cantons, had the opportunity to vote on the new Constitution. On April 18,

10
Swiss Government Proposes New Constitution, ASSOCIATED PRESS WORLDSTREAM, Nov. 21, 1996.
11
International Constitutional Law, Switzerland Index (Feb. 10, 2011), available at
http://www.servat.unibe.ch/icl/sz__indx.html.
12
Swiss Narrowly Approve Revamped Constitution, ASSOCIATED PRESS WORLDSTREAM, Apr. 18, 1999.
13
Historisches Lexikon der Schweiz, Federal Constitution (Dec. 6, 2006), available in French at http://www.hls-
dhs-dss.ch/textes/f/F9811.php.
14
15
The Federal Authorities of the Swiss Confederation, The Swiss Federal Council (Jul. 8, 2013), available at
http://www.admin.ch/br/org/index.html?lang=en.
16
Swiss Narrowly Approve Revamped Constitution, Associated Press WORLDSTREAM, Apr. 18, 1999.
17
Walter Haller, The New Swiss Constitution: Foreign and International Influences, 30 INTERNATIONAL JOURNAL
OF LEGAL INFORMATION 256, 259 (2002).
18

3
1999, the Constitution was approved by 59.2-percent of voters and majorities in
thirteen Cantons.
19

The Addition of Fundamental Rights

One of the most prominent aspects of the 1999 Constitution is the inclusion
of fundamental rights. Title Two of the 1999 Constitution outlines the rights of all
citizens.
20
The rights are divided into fundamental rights and political rights.
21

Although some of these rights, such as equality before the law, were present in the
previous version of the Constitution, the 1999 Constitution consolidated the rights
into a single section and expanded upon them, thus making them more tangible to
Swiss citizens.
22

Among the fundamental rights outlined in the 1999 Constitution are
socioeconomic rights, including, the protection of human dignity, the right to
assistance when in need, right to life and personal freedom, right to education,
freedom to use any language, freedom of domicile, right to own property, and
economic freedom.
23
The 1999 Constitution also contains civil and political rights,
including, freedom of expression, freedom of information, freedom of the media,
freedom of assembly, freedom of association, protection from extradition, right to
judicial proceedings, freedom from arbitrary detention, right to petition, and
freedom of religion.
24

In addition, the 1999 Constitution includes fundamental rights that were not
previously recognized in the 1848 Constitution.
25
Under Article 28, citizens have
the right to form professional associations and organize strikes related to
employment issues.
26
However, Article 28 allows the prevention of certain
categories of people from striking, without specifying those categories.
27

19
Constitutional amendment requires a double majority (i.e., a majority of the population and a majority of the
cantons). Nicholas Schmitt, Switzerland, FORUM OF FEDERATIONS, 4, 20, available at
http://www.thomasfleiner.ch/files/categories/IntensivkursII/Switzerlandg1.pdf.
20
SWITZERLAND CONST. Title 2, (1999) available at http://www.admin.ch/ch/e/rs/101/index.html.
21
SWITZERLAND CONST. Title 2, (1999).
22
23
SWITZERLAND CONST. arts. 7, 11, 10, 18, 19, 24, 26, 27 (1999).
24
SWITZERLAND CONST. arts. 15, 16, 17, 22, 23, 25, 30, 31, 33 (1999).
25
Cyrill P. Rigamonti, The New Swiss Constitution and Reform of the Federal Judiciary, UNIVERSITY OF
PITTSBURGH SCHOOL OF LAW, (May 4, 2000), available at http://jurist.law.pitt.edu/world/swisscor1.htm.
26
SWITZERLAND CONST. art. 28 (1999).
27

4
Additionally, the 1999 Constitution includes rights for people with mental,
physical, and psychological disabilities, thus providing equality before the law.
28

In addition to outlining the fundamental rights of citizens, the 1999
Constitution includes provisions requiring the protection fundamental rights, as
well as the restriction of fundamental rights. Article 35 asserts that fundamental
rights will be enforced through the legal system, and that those acting as agents of
the state have a responsibility to uphold and help foster the implementation of
fundamental rights.
29
Furthermore, Article 35 calls for the enforcement of
fundamental rights among private relationships whenever possible.
30

The 1999 Constitution provides that the restriction of fundamental rights is
only appropriate through a federal act with a legal basis, or in an emergency
situation with no alternatives.
31
Restrictions must be in the public interest or to
protect the fundamental rights of others.
32
Further, restrictions must be
proportionate.
33
Although the Constitution provides for the restriction of
fundamental rights, Article 36 establishes that such rights are sacrosanct.
34

Influences on the Inclusion of Fundamental Rights
The inclusion of a specific section for fundamental rights was influenced by
several factors that emerged in the 20th century. While the United States Bill of
Rights and the French revolutions ideals of human and citizen rights influenced
the 1999 Constitution, as it did the 1848 Constitution, the emergence of
international human rights conventions, courts, and jurisprudence had a significant
impact on the 1999 Constitution.
35

World War II and the Holocaust saw massive human rights abuses that, in
turn, gave rise to the need to protect the rights of people. As a result, several
international human rights instruments, such as the Universal Declaration of
Human Rights and the European Convention on Human Rights were created.
Switzerland ratified the European Convention on Human Rights in 1974 and, as a

28
29
30
31
32
33
34
35

5
result, the Swiss federal courts incorporated its standards into their rulings.
36

Consequently, the federal court rulings, as well as international human rights
instruments, had a significant impact on the establishment of fundamental rights in
the 1999 Constitution. To codify the rulings of federal courts, the drafters of the
Constitution included a bill of rights and justiciable procedural guarantees to
enforce these rights.
37

Additional Changes

In addition to codifying fundamental rights, the 1999 Constitution eliminates
gold backed currency, a requirement of the 1848 Constitution.
38
As a result, the
Swiss National Bank was able to sell gold and use the proceeds to help
disadvantaged people.
39
The language of the Constitution was also updated to be
easier to read. Additionally, the 1999 Constitution allows for a popular initiative
of 100,000 eligible voters to propose both partial and full revisions of the
Constitution.
40
The Constitution of 1999 was last amended in March 2012.
41

Prominent Aspects of the Swiss Federal Constitution of 1999

Although the 1999 Constitution includes modern updates and revisions,
especially concerning fundamental rights, much of the Constitution remained the
same with regard to regulating political relations, foreign relations, and internal
issues. Like the Constitution of 1848, the 1999 Constitution regulates relations
between the Confederation, Cantons, and communes, as well as relations between
the people and Cantons; determines the duties and powers of federal authorities;
and outlines the procedure to revise the Constitution.
42

36
Swiss Info, Swiss Judges Human Rights in European Context (Nov. 11, 2007) available at
http://www.swissinfo.ch/eng/politics/Swiss_judges_human_rights_in_European_context.html?cid=6240056.
37
Direct Democracy League, Swiss Bill of Rights, 1999 (Jul. 6, 2007), available at http://www.ddleague-
usa.net/sbor.htm.
38
Swiss Narrowly Vote to Drop Gold Standard, NEW YORK TIMES, Apr. 19, 1999, available at
http://www.nytimes.com/1999/04/19/world/swiss-narrowly-vote-to-drop-gold-standard.html.
39
Swiss Gold On Hold, BUSINESS WIRE, Apr. 15, 1999, available at http://www.thefreelibrary.com/Swiss+Gold+-
+On+Hold.-a054390218.
40
SWITZERLAND CONST. arts. 138, 139 (1999).
41
World Intellectual Property Organization, Switzerland (Mar. 11, 2012), available at
http://www.wipo.int/wipolex/en/details.jsp?id=11949.
42
The Federal Chancellery, The Swiss Confederation: A Brief Guide, SWISS CONFEDERATION (Dec. 31, 2012),

6
Responsibilities of the Confederation and Cantons

The Swiss Constitution delineates the relationship between the
Confederation and Cantons, establishing that the Confederation will only assume
duties that cannot be conducted by the Cantons or which require a uniform
response from the state as a whole.
43
The Confederation is tasked with respecting
the autonomy of the Cantons, while also providing financial support.
44
However,
the Cantons must also follow federal law, which takes precedence over laws of the
Cantons.
45
Each Canton has its own Constitution, and is permitted to engage in
agreements and relations with other Cantons.
46

Responsibilities of the Cantons
Although the Cantons have control over several sectors of society,
considerable collaboration occurs with the Confederation. The Cantons are
responsible for the system of school education, cultural matters, the establishment
of an official Canton language, church and state relationships, energy use in
buildings, granting licenses for gambling, assisting the elderly and people in need,
and organizing civil and criminal courts.
47
Additionally, the Confederation and
Cantons collaborate in several areas of society, including, security, protecting the
integrity and development of children, musical education, sustainable
development, spatial planning, water resource management, economy, and
complementary medicine.
48

Responsibilities of the Confederation
Although the Confederation collaborates with the Cantons on several issues,
the Confederation has sole or increased authority in the following areas:
deployment and regulation of armed forces, vocational and professional training,
scientific research, sports, environmental protection, proper land use, animal
protection, public construction works, public transportation, taxes, nuclear energy,
postal and telecommunications, radio and technology, banks, monetary policy,
national economic policy, agriculture, war material, housing construction,
employment, health insurance, and financial management.
49

43
44
45
46
47
SWITZERLAND CONST. arts. 62, 69, 70, 72, 89, 106,112, 115 (1999)
48
SWITZERLAND CONST. art. 57, 67, 73, 76, 94 (1999).
49
SWITZERLAND CONST. art. 58, 60, 63, 64, 75, 77, 80, 81, 82, 83, 86, 90, 92, 93, 98, 99, 102, 104, 108, 117, 126
(1999).

7
Foreign Relations
The Constitution declares foreign relations to be the responsibility of the
Confederation.
50
However, the Confederation must consult with the Cantons if
their interests are affected and the Confederation must protect the interests of the
Cantons when engaging in foreign relations.
51
Despite the Confederations duty to
conduct foreign relations, the Cantons have some powers to engage in international
activities. Under Article 56, the Cantons may sign treaties with other states on
issues within the Cantons powers.
52
Treaties between foreign states and Cantons
cannot conflict with federal law, and the Confederation must be consulted before
concluding a treaty.
53
The Confederation also has the power to engage in foreign
relations on behalf of a Canton.
54

Government Structure

The Swiss Constitution also describes the powers of the people and the
government in managing the state. The structure of the government, including the
Federal Assembly and the Federal Council are defined in the Constitution.
Additionally, the power of Swiss citizens is described, including methods of
changing laws, such as referendums.

Federal Assembly
The Constitution describes both the composition and procedures of the
Federal Assembly. The Federal Assembly is the supreme authority of the
Confederation and is comprised of two branches with equal power, the National
Council and the Council of States.
55
The National Council, comprised of 200
members, represents the people, while the Council of state represents the Cantons,
and is comprised of 46 members.
56

There are two main options when voting for the National Council: a voter
may simply indicate all their preferred candidates (blank list), or use a
preprinted list of candidates created by a political party, which can be modified
by deleting names, or splitting the list between members of different parties.
57
A

50
51
52
53
54
55
56
SWITZERLAND CONST. art. 149, 150 (1999).
57
The Federal Chancellery, The Swiss Confederation: A Brief Guide, SWISS CONFEDERATION, 16 (Dec. 31, 2012),

8
candidate's name can be entered up to twice (and no more than twice) on the ballot
to increase election prospects for said candidate.
58
For multi-seat elections in the
National Council, candidates are elected proportionally, but the person with the
most votes wins single-seat elections.
59
The Constitution outlines the procedures
for sessions, the election of presidents and vice presidents of the councils, and the
establishment of parliamentary groups and committees.
60
Furthermore, the
Constitution outlines separate and joint proceedings of the Federal Assembly, as
well as meeting and voting procedures.
61
Among the powers of the Federal
Assembly is the ability to pass federal acts and create binding laws, as well as
enact emergency legislation.
62
Additionally, the Federal Assembly has power over
foreign relations, finances, and relations with the Cantons.
63

Federal Council
The seven members of the Federal Council are indirectly elected by the
Federal Assembly and constitute the executive authority of the Confederation.
64

The Federal Assembly also elects a president and vice president of the Federal
Council; however these positions do not carry more power than the rest of the
Federal Council.
65
The Federal Council is in charge of federal administration and
government policy.
66
In addition, the Federal Council plays a role in lawmaking,
foreign relations, security, finances, and relations with the Cantons.
67

The Power of the People
The people of Switzerland exercise considerable control over legislation and
policies of the government. Under Article 138 and 139 of the Constitution,
100,000 people can propose an initiative to partially or entirely revise the
Constitution, which will then be put to a popular vote.
68
Citizens must also
approve through referenda, Constitutional amendments, induction to international
or regional organizations, and emergency federal acts that are not based in the
Constitution and will be in force for more than a year.
69
At the request of 50,000

58
59
60
SWITZERLAND CONST. art. 151, 152, 153, 154 (1999).
61
SWITZERLAND CONST. art. 158, 159, 160, 161 (1999).
62
SWITZERLAND CONST. art. 163, 164, 165 (1999).
63
SWITZERLAND CONST. art. 166, 167, 172 (1999).
64
65
66
67
SWITZERLAND CONST. art. 181-187 (1999).
68
69

9
eligible voters, an optional referendum can be introduced to vote on federal acts,
federal decrees, emergency federal acts lasting longer than a year, and certain
international treaties.
70

Amendments to the Swiss Federal Constitution of 1999

The 1999 Constitution has been through several amendments by parliament
bills and public initiative. In March 2000, a parliamentary bill to amend the
judiciary passed, giving all people the right to be heard by a judicial authority,
except in certain cases as determined by the Confederation or Cantons.
71
An
amendment to the Constitution to address the debt ceiling was proposed through a
parliamentary bill and passed in December of 2001, thus managing the income and
expenditures over time.
72
A new financial order to limit direct taxes was also
included in the Constitution in 2004.
73
In 2005, an amendment reorganized
Constitutional provisions through a parliament bill.
74
Since the enactment of the
1999 Constitution, over ten amendments through parliamentary bills have passed.

As previously mentioned, the citizens of Switzerland may also amend the
Constitution through a public initiative. In 2001, Article 197 was amended to
allow Switzerland membership in the United Nations.
75
Article 123 was amended
to provide life sentences for sex offenders that have no hope of rehabilitation.
76
A
ban on genetically modified plants was also added to the Constitution in 2005.
77
In
2009, Switzerland passed one of its most controversial amendments, placing a ban
on the construction of minarets, which many people saw as an affront to Islam.
78

70
71
The Federal Assembly The Swiss Parliament, Bundesbeschlussn ber die Reform der Justiz (Mar. 12, 2000),
available at http://www.admin.ch/ch/d/as/2002/3148.pdf.
72
The Federal Assembly The Swiss Parliament, Bundesbeschluss ber eine Schuldenbremse (Dec. 2, 2001),
73
The Federal Assembly The Swiss Parliament, Bundesbeschluss ber eine neue Finanzordnung (Nov. 28, 2004),
74
The Federal Assembly The Swiss Parliament, Bundesbeschluss ber die Neuordnung der
Verfassungsbestimmungen zur Bildung (Dec. 16, 2005), available at http://www.admin.ch/ch/d/as/2006/3033.pdf.
75
The Federal Assembly The Swiss Parliament, Bundesbeschluss ber die Volksinitiative fr den Beitritt der
Schweiz zur Organisation der Vereinten Nationen (UNO) (Oct. 5, 2001), available at
http://www.admin.ch/ch/d/as/2002/885.pdf.
76
The Federal Assembly The Swiss Parliament, Bundesbeschluss ber die Volksinitiative Lebenslange
Verwahrung fr nicht therapierbare, extrem gefhrliche Sexual- und Gewaltstraftter (June 20, 2003), available at
http://www.admin.ch/ch/d/as/2004/2341.pdf.
77
The Federal Assembly The Swiss Parliament, Bundesbeschluss ber die Volksinitiative fr Lebensmittel aus
gentechnikfreier Landwirtschaft (June 17, 2005) available at http://www.admin.ch/ch/d/as/2006/89.pdf.
78
The Federal Assembly The Swiss Parliament, Bundesbeschluss ber die Volksinitiative Gegen den Bau von
Minaretten (June 12, 2009) available at http://www.admin.ch/ch/d/as/2010/2161.pdf.

10
In 2011, the European Court of Human Rights rejected appeals challenging the
amendment, because the applicants failed to show a specific injury.
79

Conclusion

The Swiss Federal Constitution of 1999, proposed by the Federal Council
and approved by popular vote, replaced the 1848 Constitution. The 1999
Constitution includes fundamental rights and eliminates the requirement of gold-
backed currency. The changes were highly influenced by post World War II
international human rights ideals. However, despite some significant changes, the
structure of the Swiss Confederation generally remained the same. The
Constitution outlines the responsibilities of the Confederation, including the
Federal Assembly and the Federal Council, as well as the responsibilities of the
Cantons. Finally, the Swiss Constitution provides substantial rights to the citizens,
allowing them to propose, eliminate, and revise laws through referendums and
initiatives.

79
Aman Kakar, European Rights Court Rejects Appeals Against Switzerland Minaret Ban, THE JURIST (Jul. 10,
2011), available at http://jurist.org/paperchase/2011/07/europe-rights-court-rejects-appeals-against-switzerland-
minaret-ban.php.

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