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The Federal Supreme Court has been discussed throughout this chapter; it is the highest court in Switzerland. Although its powers are limited in scope by Article 190 Constitution, which precludes any possibility of constitutional review of federal acts, it takes an active role in protecting fundamental rights, as the following two cases demonstrate.
In 1989, THERESA ROHNER requested that the cantonal authorities allow her to participate at the Landsgemeinde of the Canton of Appenzell Innerrhoden, in order to exercise her political rights. The cantonal authorities rejected her application, on the basis that Article 16 of the Constitution of the Canton of Appenzell Innerrhoden did not grant political rights to women; only men could vote and participate in elections. In 1990, the Landsgemeinde dealt with a proposal to change the cantonal Constitution, according to which the political rights would have been extended to all Swiss citizens residing in the canton – including women. However, the Landsgemeinde, whose voting population at this time consisted of men alone, rejected the proposal. Several applicants, among them URSULA BAUMANN and MARIO SONDEREGGER, challenged the decision of the Landsgemeinde. They requested that the Federal Supreme Court annul the decision and oblige the canton to introduce women’s suffrage.
Upon appeal, the Federal Supreme Court agreed with the arguments of the applicants.39 It determined that the exclusion of women from the cantonal electorate violated Article 4 II of the federal Constitution of 1874, an article introduced in 1981 providing for equal treatment of men and women (now: Article 8 II Constitution). The Federal Supreme Court held that the principle of equal treatment also applied to political rights at the cantonal level. Thus, the cantonal practice which did not allow women to participate at the Landsgemeinde violated Article 4 II Constitution 1874. Although Article 74 IV Constitution of 1874 (now: Article 39 I Constitution) provided that it was up to the cantons to regulate the exercise of political rights at the cantonal level, this Article had no effect on the Federal Supreme Court’s decision because it did not explicitly provide for an exception from the principle of equal treatment. Consequently, the Canton of Appenzell Innerrhoden was required to allow women to participate at the Landsgemeinde and to exercise the political rights which were provided for in the cantonal law. The Federal Supreme Court concluded that it was possible to interpret Article 16 of the Constitution of the Canton of Appenzell Innerrhoden to this effect; it was not necessary for the canton to formally change its Constitution.
The decision rendered by the Federal Supreme Court ended the long fight of Swiss women (supported by at least some men) for equal treatment regarding political rights. On the federal level, the women had already been granted full political rights in 1971, based on a constitutional revision approved of by a majority of the people – namely, 65 % of the men who turned up to vote – and a majority of the cantons (Article 74 I Constitution 1874, now: Article 136 Constitution). The Canton of Appenzell Innerrhoden was the last canton to follow suit. Irritatingly and somewhat depressingly, the (male) electorate of the canton was not ready to introduce women’s suffrage itself. Rather, the Federal Supreme Court needed to step in.
2. NATURALISATION AND FUNDAMENTAL RIGHTS
In 2000, the electorate of the Commune of Emmen (Canton of Lucerne) was called upon to decide on 23 applications for naturalisation (comprising 56 foreign nationals, in some cases applying together as families) in a ballot vote. The people voted in favour of the naturalisation of only eight applicants, who were all Italian citizens. They rejected all other applications, which were mainly submitted by citizens of ex-Yugoslavian countries (some of whom had been born in Switzerland and had always lived here). Four of these applicants challenged the negative vote. The cantonal government council, as the first appellate authority, rejected their complaints.
The Federal Supreme Court annulled the decision of the commune on appeal.40 It held that the electorate is a state organ and exercises a state function when it decides on the naturalisation of foreign nationals and thus on their legal status. Therefore, the electorate is obliged to respect fundamental rights (Article 35 Constitution). In particular, the prohibition of discrimination applies (Article 8 II Constitution). On the basis of how the electorate decided – naturalisation of all Italian applicants, no naturalisation of all applicants from ex-Yugoslavian countries without evident relevant differences between the applicants – and publications that had been circulated in the run-up to the vote (flyers and letters to newspapers calling out to reject the applications of persons from ex-Yugoslavian countries), the Federal Supreme Court decided that the constitutional prohibition of discrimination on the grounds of origin had been violated. Moreover, it held that the right to be heard applies; negative decisions must be backed up with adequate reasoning (Article 29 II Constitution). This right to be heard is violated per se in cases in which the electorate decides on naturalisation applications in a secret ballot vote, as here it is logically impossible to deliver a proper justification for a negative decision. As such, it is no longer permissible to decide on naturalisations through ballot voting.
Most commentators have welcomed the Federal Supreme Court’s judgment, and rightly so. In a series of later cases, the Federal Supreme Court has further clarified the guidelines. It acknowledged that decisions on the naturalisation of foreign nationals may still be taken by the communal electorate if this is considered by the commune to be the appropriate forum; however, the decision-making process must respect fundamental rights. The most obvious rights which must be respected in such a process are the prohibition of discrimination (Article 8 II Constitution), the prohibition of arbitrariness (Article 9 Constitution), the right to privacy (Article 13 Constitution), the freedom of religion and conscience (Article 15 Constitution) and the right to be heard (Article 29 II Constitution).41 Today, a significant number of communal electorates retain the competence to decide on the naturalisation of foreign nationals; the figure has been estimated at approximately 800 communes.
Not everyone was satisfied with the Federal Supreme Court’s judgement: in 2008, the Swiss People’s Party (SVP) tried to turn back the wheel. It collected the necessary 100’000 signatures for a popular initiative entitled “for democratic naturalisations” (“für demokratische Einbürgerungen”) according to which it would have been entirely up to the communes to decide on the decision-making process for naturalisations, thus allowing secret ballot voting to be reinstated. The people and the cantons overwhelmingly rejected the initiative (63 % voting against). Instead, the Federal Assembly codified the basic elements of the Federal Supreme Court’s case law in the Federal Act on the Swiss Citizenship (Articles 15–17).
39BGE 116 Ia 359.
40BGE 129 I 217.
41See e.g. BGE 129 I 232; BGE 130 I 140; BEG 135 I 49; BGE 139 I 169.