MINORITIES IN
THE FEDERAL STRUCTURE
OF
THE AUSTRIAN STATE
According to Article 2 of the
1920 Constitution of the Republic of Austria, the latter is a federal state
composed of nine regions (Länder).
The Constitution divides
legislative and executive powers between the Federation (Bund) and the regions;
nevertheless, the most important powers, especially those concerned with the
protection of minorities, come under the jurisdiction of the Federation.
A number of persons in
Carinthia and Styria belong to the Slovenian minority, others in the Burgenland
belong to the Croat and Hungarian minorities. There are minority groups of
Croats, Hungarians and Czechs in Vienna.
As explained above, the
protection of minorities is chiefly dealt with in federal (national)
legislation. It is therefore not surprising that the constitutions of the
regions in question (Carinthia, Styria, the Burgenland and Vienna) do not
contain any provisions on the protection of minorities.
It should be noted that the
constitutions of Carinthia, Styria, the Burgenland and Lower Austria follow the
example of Article 8 of the Federal Constitution by stipulating that the
official language of the region is German, save as otherwise provided in
national laws on the use of minority languages (cf in particular the Law on
Ethnic Groups of 1976).
It should be pointed out
that, under the Carinthian constitution, the whole region used to form a single
electoral district. The Slovenian minority (dispersed throughout the region,
but more heavily concentrated in the south-eastern districts) could therefore
muster enough votes to elect a candidate of its own. Nevertheless, in 1978, the
Constitutional Court decided that the constitution required the division of the
regions into several electoral districts.
In 1979 the regional
constitution of Carinthia was amended to comply with this decision, and the
region was split up into four electoral districts. Since then it has been
almost impossible for a minority list to pick up enough votes in one district
to return a member to parliament.
It must, however, be added
that when regional and national elections are held, the lists of the political
parties generally include representatives of the Slovenian minority, and
municipal councils and other bodies (chambers of commerce, agriculture or
industry) contain representatives elected from the minorities' own lists.
It is easier for federal
states like Austria than for centralised states to make appropriate
arrangements to take account of the presence of minority groups in a region.
For example, the regional government of Carinthia (Landesregierung) has set up
a special office to deal with questions concerning minorities (Bureau für
Volksgruppenfragen).
Belgium
FEDERALISM AND PROTECTION OF
MINORITIES
by
Professor Jean-Claude SCHOLSEM
Professor at the Law Faculty,
University of Liège (Belgium)
1.1 It is
of course extremely difficult, shortly after the completion of a major overhaul
of the Constitution, which has
been elaborated upon in legislation, to give a precise description of the
contribution of the "Belgian federal model" to the general problem
area of protection for minorities.
However,
the originality of the Belgian model can and must be emphasised. In our view, the solutions implemented in
this country provide all sorts of lessons - both positive and negative - for
other States confronted with the same problems and the same difficulties.
1.2 The
main distinguishing feature of Belgian federalism - as distinct from that of,
say, Switzerland or the United States - is that it is not an original form
of federalism but one built on the foundations of a unitary State. Belgian federalism has been established
gradually to meet the growing need for autonomy expressed by the two great
"peoples", Flemish and Walloon, who comprise the State.
All
federal structures are the fruit of historical circumstances and can be
understood only in relation to their specific history; this is particularly
true of the very special and atypical brand of federalism found in Belgium, one
which is dissociative in as much as it has grown out of a unitary
State. It was only after 140 years of
this unitary State's existence (1830-1970) that federal-type structures
were introduced gradually and in stages.
This process was partial and fragmentary in every case, since it
required four major revisions of the Constitution, in 1970, 1980, 1988 and most
recently in 1993.
1.3 The
historical catalyst for this transformation of a unitary State into a federal
State was the desire of the Flemish population to have its language, Dutch,
placed on an equal footing with French.
Indeed,
when it first came into being and during the early decades of its existence,
the Belgian State was dominated by a middle class whose vehicle of expression,
in both the north and the south of the country, was the French language. French was the only official language. If a "linguistic frontier"
existed, the origins of which are lost in the mists of time, that frontier was
of hardly any importance since French was the language of the ?lites and
the ruling classes throughout the country.
In terms of theories applied to minorities, therefore, Belgium
represents an interesting special case since the language of the majority of
the population, in numerical terms, had the status of a minority language. In the 19th century, the linguistic divide
was far more of a social cleavage than a geographical one. In the northern part of the country, various
types of Flemish patois were spoken, while Walloon, Picardy and Lorrainese
dialects were used in the south. The
French language was the cement which bound together the ?lites and the
Belgian State.
1.4 The
gradual extension of the right to vote, definitively acquired by men after the
first world war and by women after the second world war, was to pose a radical
threat to the very balance of this unitary State bound together by linguistic
and cultural unity. From the end of the
19th century, a whole series of laws tended to place Dutch on the same footing
as French. From the end of the 19th
century onwards, an entire set of "language" laws was drafted,
in respect of the official use of languages.
These laws were limited in scope, at least in theory, by the principle
of linguistic freedom set out in Article 23 of the Constitution (Article
30 of the Co-ordinated Constitution)
which is amenable to regulation by law only in the case of acts by public
authorities and in matters of a judicial nature. However, this constitutional provision has been interpreted very
broadly in legislative texts.
At
the same time, the Flemish movement placed increasingly distinct emphasis on
the principle of territoriality, which was seen as a means of defending a less
widely used language, although one spoken by a majority in the country, against
a language of wider international prevalence.
A distinct change took place in this connection. The language laws of the period between the
two wars provided for flexible dividing lines between languages, in as much as
individual communes were able, on basis of the linguistic censuses carried out
periodically, to change their language rules or to obtain special
"facilities" entitling them to provide for the official use of the
language of the minority if the latter became large enough. This system usually worked to the advantage
of French speakers, especially on the outskirts of Brussels. After the second world war, the Flemings
succeeded in having the linguistic census abolished. Acts of 1961 and 1962 laid down a definitive linguistic frontier,
with no further reference to subsequent population movements or the wishes of
the inhabitants. The establishment of
this "frontier" produced some points of friction, as in the case of
the commune of Fourons which caused a number of political difficulties at the
highest level. Finally in 1970, the
Constitution finished off a long-term task by itself recognising the
existence of four linguistic regions: the French-, Dutch-
and German-speaking regions and the bilingual region of Brussels-capital
(Article 3 bis; Article 4 of the Co-ordinated Constitution).
1.5 The
historical developments outlined above would appear to justify the somewhat
simplistic label of "linguistic quarrels" which is sometimes applied
to the vicissitudes of Belgian political life.
As we
shall attempt to show, there are many other aspects to the gradual
federalisation of the country, which as a matter of fact began in 1970. However, it is important to bear in mind the
"language battle" fought by the Flemish people, which resulted in the
division of the territory into "linguistic regions" under the 1970
Constitution. The boundaries of those
regions could henceforth no longer be modified except by so-called special
legislation, ie laws adopted by a special majority (two-thirds of the votes
in the two chambers, requisite quorum, and a majority of votes within each
language group in each of the chambers).
The regions thus served as a territorial base for the various
regional and community institutions which were to be set up and developed from
1970 onwards. In other words, language
frontiers paved the way for the development of political boundaries, and
it was these boundaries (extremely difficult to alter in law and considered
politically immutable by the Flemish political community) which provided the
framework for the establishment of the regional and Community institutions
proper to post-unitary Belgium.
2.1 It is
not part of our intention to give a detailed description of present-day
institutions in Belgium. At the level of
both the federal State and the federated entities (Regions and Communities),
these institutions are extremely complex and furthermore - as was mentioned
above - they recently underwent a further overhaul, in May 1993, which will no
doubt not be the last one. Nor is it
possible to dwell on the development of these reforms which were carried out in
four major stages (1970 - 1980 - 1988 - 1993).
The
aim will be to show how federal techniques of a particular nature have
been applied in a country facing what is doubtless one of the most difficult
situations to handle, namely a division between two populations
separated by differences of language, culture and sensibility. As has been mentioned, this division did not
become apparent right away, but was the outcome of a slow process which came to
fruition in the fullness of time. This
explains the radical break in the history of Belgium, between a relatively long
period (140 years) during which the State existed in a unitary form, and a
period of intense upheavals (1970 to the present day).
2.2 Emphasis
should therefore be placed on certain characteristics of Belgium's federal
structure which are little or poorly understood abroad. It is also necessary to show how the special
federal techniques applied in Belgium ensure the peaceful coexistence of
majorities and minorities - albeit not without difficulty - at both national
and local level.
As
was pointed out above, Belgian federalism grew out of the transformation of a
unitary State into a federal structure.
This is an historically very rare case of federation by dissociation,
and as such poses very different problems from those raised by a conventional -
that is to say associative - type of federalism. In the case of Belgium, the regional and Community institutions
were created from scratch, so to speak.
Their autonomy, jurisdiction and organisational structure were fashioned
by the central Government itself.
Federalism was thus conceded, as it were, and this explains many of the
features of the Belgian federal structure.
After nearly twenty-five years of reorganisation, the State may still
appear highly centralised to an observer familiar with genuine federalism. For example, the federated entities have no
say in the process of revising the Constitution, residual jurisdiction lies
with the federal State, the entire judicial system is also federal in structure
and the level of taxation differs very little between federated entities. The latter have no Constitution of their
own. Moreover, the former territorial divisions
of the unitary State, including the provinces in particular, have been kept
intact. The situation of the local
authorities is especially complex since they depend partly on the central
Government (for their basic legislation, for example) and partly on the Regions
(for finance and general supervision), as well as in some cases on the
Communities. Under the most recent
reform, in 1993, the province of Brabant - the last vestige of the Belgian
unitary State since its territory encroached on all three Regions - was divided
into Flemish Brabant and Walloon Brabant, while the Brussels-capital region was
no longer attached to any province.
This
situation contrasts with the system of associative federalism, where the aim is
to restrict existing sovereign or quasi-sovereign powers.
In
the case of Belgium, the prevailing trend is centrifugal, while in most other
federal States it is centripetal. In
addition, the Belgian pattern of government comprises only a small number of
units, and this obviously makes it more difficult to operate a federal
system. Officially, the federal State
is composed of three Regions and three Communities (Article 1 para. 1 of the
Constitution; Article 1 of the Co-ordinated Constitution).
2.3 This is
precisely one of the most puzzling aspects of the current structure of the
Belgian State. Belgian federalism is a two-tier
form of federalism. The federated
entities comprise both communities and regions. There is some territorial overlapping between communities and
regions. Moreover, the notion of a
community is not entirely territorial and opens the way for a "personal"
type of federalism.
Once
again, only history can explain this particularly complex situation. To simplify matters, it can be said that
community-style federalism corresponds to a Flemish aspiration, while
institutions of a regional nature meet the wishes of the Walloons and, to a
lesser extent, the French-speaking inhabitants of Brussels. There is therefore a debate in Belgium
about the very nature of the entities which are to be federated. The very difficulty of settling this
question leads to the emergence of a structure which, in a manner of speaking, combines
and seeks to reconcile these two approaches in a fragile balance liable at
all times to be called in question.
2.4 On the
Flemish side, the language dispute and the need for cultural assertion, in a
situation long perceived as deriving from a psychological minority, are
naturally conducive to the espousal of the community concept. Indeed, since 1970, the Communities have
been responsible for everything connected with the use of languages and
culture. Their powers were broadened in
1980 to include various matters of a social nature (so-called
"personalisable" matters) and since 1989 they have encompassed the
entire field of education. Accordingly,
Belgium is divided into three communities: a Flemish Community, a French
Community and a German-speaking Community.
The
latter is small in size and in fact reflects the wish to protect and guarantee
the autonomy of a genuine minority.
With a few exceptions (with regard to the use of languages, for
example), German-speaking Belgians, of whom there are some 66 000, enjoy
the benefit of the same Community institutions, the same areas of jurisdiction
and the same degree of autonomy as the country's two major communities, namely
the Flemings and the francophones.
Consequently, despite its small numerical size, the German-speaking
Community has full jurisdiction within the areas of culture, social
("personalisable") matters and education within the German
linguistic region. In this respect,
it is clearly a highly protected linguistic and cultural minority. However, it must immediately be added that,
from the standpoint of the decision-making machinery at federal State
level, Belgium's German speakers as such are almost totally excluded from the
relevant mechanisms which are designed to ensure a balance between Flemings and
French speakers. In other words, while
German-speaking Belgians are protected as a linguistic and cultural minority,
they are hardly or not at all involved, as such, in the workings of the
federal State.
The
essentially Flemish idea of a community-style federalism, ie with its focus on
language, culture and education, entails a conception based to some extent on
non-territorial principles.
Indeed, while the German-speaking Community is in the
straightforward position of having jurisdiction over a clearly defined territory,
namely the German-language region, the situation is much more awkward for the
French and Flemish Communities which are required, in a manner of speaking, to
"share" Brussels, or more precisely speaking the bilingual region
of Brussels-capital. In this
region, both Communities have jurisdiction over the same territory. However, Belgian law makes no provision for
sub-nationality: neither Flemings nor French speakers are recognised
under the law. That being the case, in
the bilingual region of Brussels-capital, decrees (which are the equivalent of
laws at the Community level) cannot be made applicable to persons but only to
cultural and social institutions which have a direct connection with the
culture or the "community" in question. It is in this respect that the community aspect of Belgian
federalism is not entirely based on territorial principles. Nor does it constitute what is known as a
personalised form of federalism, since there is no personal link binding
individuals to a community. The solution
adopted is a composite one, whereby two political groupings have dealings with
the institutions "representing" their culture or their language in a
given part of the territory.
2.5 Among
French speakers and more especially the Walloons, the federalisation of the
country is primarily thought of in regional terms. From this point of view, Belgium comprises
three regions: the Walloon Region, the Flemish Region and the Region of
Brussels-capital.
The
regions do not fully correspond to the Community "territories"
described above. If the division of the
country into linguistic regions is taken as the starting point, it is
found that the Walloon Region comprises two linguistic regions, namely the
French language region and the German language region. The German speaking Community, which has
responsibility for cultural and social affairs within its territory, therefore
forms part of the Walloon Region whose areas of responsibility are primarily
economic. The Brussels-capital Region
coincides with the bilingual linguistic region, that is to say the area where
the Communities' responsibilities overlap.
The Flemish Region corresponds to the monolingual, Dutch-speaking
linguistic region.
Responsibilities
are assigned to the Regions in the same way as to the Communities, while
residual jurisdiction continues to lie with the central Government. These responsibilities mainly concern the
economy, the environment, transport and subordinate powers. From the Walloon point of view, Belgium is
divided into three distinct socio-economic units. Cultural or community-type claims are much less assertive among
French-speaking Belgians who have never had to defend their language and their
culture; on the contrary, the latter were for a long time predominant. The concept of regional federalism, that is
to say a federal State with three component parts, one of them including the
national capital (the Region of Brussels-capital), was for a long time
vehemently opposed by the Flemings who feared that, since the central region of
the country had over the years become home to a clear majority of French
speakers, the division of the country into three component parts, including two
(the Walloon Region and the Brussels Region) in which the majority were French
speakers, would structurally place them in the position of a minority (two
against one), despite their demographic ascendancy (roughly 60% of the
population) and their growing economic dominance.
3.1 Federal
Belgium is thus seen to have grown out of a unitary State split between two
separatist tendencies, one being linguistic, cultural and essentially dualistic
in nature (bearing in mind that, in this regard, the German-speaking Community
is not a component part of the State but a protected minority), while the other
is socio-economic, focusing on the existence of three regions.
Each
of these conceptions is partially recognised in positive law, as a result of
lengthy and laborious compromises worked out between Flemings and French
speakers.
With
regard to the actual organisation of the federal State, it is the dualistic
approach which has certainly prevailed.
As a result, the mechanisms for the protection of minorities
incorporated in the Belgian Constitution are targeted not at the regions, but
at the two great population groups characterised by their language. Since 1970, the Council of Ministers
has had an equi-representative structure: with the possible exception of the
Prime Minister, it must comprise an equal number of French- speaking and
Dutch-speaking Ministers. This
guarantee of parity representation at the highest level of government
constitutes the most effective means of protection for the French-speaking
population. In practice it is
difficult, in a country applying the system of proportional representation, to
set up a federal government which does not enjoy majority support or at least
have an adequate base both north and south of the linguistic divide. Moreover, equal representation on the
Council of Ministers is the extension of the linguistic parity introduced at
the highest levels of central government.
Various
other legal mechanisms highlight the fundamental duality of Belgium's central
government institutions. For example,
the two federal Chambers (House of Representatives and Senate) are divided into
two language groups.
These
groups exercise a major influence.
Indeed, since 1970, the Constitution itself has laid down the
requirement of a special majority for the adoption of a growing number of laws
essential to the balance of the country or the protection of minorities. This requirement involves not only an
overall majority of two-thirds but the presence of a quorum and of a majority
in each language group, within both federal assemblies. For example, the "language
frontier" could be altered only by a law of this type. Similarly, all essential aspects of the
organisation of regional and Community institutions, as well as their powers
and their financing, depend either on the constitution itself or, pursuant to
the constitution, on laws of this kind known in Belgium as special laws.
It is
through the requirement of such special laws, to a far greater extent than, for
example, through the organisation and powers of the Senate, that the protection
of the French-speaking minority is given practical effect in Belgium, subject
to the restrictions imposed by the Constitution. In this regard, Belgium's system of federalism differs from the
conventional type found in such countries as Switzerland and the United States,
where the second chamber is the major instrument of participation by the
federated states in the political life of the federal State. The Belgian Senate was recently subjected
to far-reaching reforms, in 1993, but these reforms - which we cannot describe
here in detail - have not made the Belgian Senate a federal chamber like the
Swiss Council of States or the American senate.
The
language groups in the House and the Senate are also entitled to make use of a
special protective mechanism which is very rarely used in practice. This mechanism, known familiarly as the
"alarm bell", enables a language group to declare, on the
basis of a three-quarters majority, that a Government Bill or a private
member's Bill is likely to cause serious prejudice to relations between the
communities. In such cases, the
procedure is suspended and the text is submitted to the Council of Ministers,
in which the language groups have equal representation and which must take a
decision. This mechanism has been used
only once since it was introduced in 1970, but it is not beyond belief that its
mere existence may have something of a preventive effect and, more
specifically, a protective effect for the French-speaking minority
3.2 Apart
from equal representation in the Council of Ministers and the requirement that
laws be adopted by a special "linguistic" majority, other
institutions reflect the dualistic nature of Belgium's federal system. For example, the Constitutional Court,
which is known as the Arbitration Court, is composed of six French-speaking judges
and six Dutch-speaking judges, on an equi-representative basis. An ingenious system is used to prevent
deadlock in the pronouncement of judgments.
This Court's original purpose was to monitor compliance with the
apportionment of powers between the State, the Communities and the Regions, but
it was subsequently given broader responsibilities. Through its task of reviewing compliance with the principle of
equality, which was entrusted to it in 1989, it operates in many respects as a
fully-fledged Constitutional Court.
Language parity within this Court is therefore an essential element of
balance in Belgium.
The
same language parity is found in the highest ordinary and administrative
courts (Court of Cassation and
Council of State). Similarly, the membership
of the Consultation Committee, a political body set up to prevent and,
if possible, settle conflicts of interest between component units of central
government, is linguistically equi-representative. The above are only a few of the almost unlimited instances of
this phenomenon.
4.1 While
it is clear that the federal structure of the Belgian State is essentially dualistic,
the fact remains that it is composed of three Communities and three Regions.
This
two-tier federal structure has already been described. It only remains to give an account of its
practical workings and how it has developed.
It is obviously quite difficult to ensure the harmonious operation of a
federal structure of this type. Indeed,
the federal State retains residuary jurisdiction, while different institutions
(Regions and Communities) exercise a variety of exclusive powers with
regard to territories which partially overlap.
The difficulty is compounded by the fact that responsibilities are
assigned almost entirely on the basis of the system of exclusive
jurisdiction. Belgian law only
rarely has recourse to the technique of concurrent jurisdiction, with its
mandatory corollary, namely that federal rules should take precedence over
rules adopted by federated entities. The
use of this technique would appear in a way to contradict the centrifugal
tendency characteristic of Belgian federalism.
The system of exclusive jurisdiction is therefore bound up with the
desire for autonomy of the newly established entities which have no wish to see
the federal State "take back" what it has recently given them, by
means of concurrent legislation. The
fact remains, though, that the system of exclusive jurisdiction, which is
practically the only one used in Belgium, makes the procedures for sharing
responsibilities extremely rigid.
4.2 All
this goes hand in hand with a federal structure comprising two tiers, the
Communities on the one hand and the Regions on the other. However, this system is subject to major deviations
in institutional practice. Since 1980,
the Flemish have carried out a "merger" of regional and Community
institutions. The decision-making
bodies are the same in all cases: it is sufficient to exclude the Flemings of
Brussels from their membership when regional Flemish issues are being
considered. The small proportion (2 to
3%) of Brussels Flemings in relation to the total Flemish population enabled
this solution to be adopted in the north of the country. It is a very effective one in policy-making
and administrative terms, as well as with respect to budgetary matters, as it
facilitates transfers from one budget to another (regional and Community
budgets). At the same time, it enables
the Flemings to confirm and consolidate the position of the Brussels Flemings -
who are substantially outnumbered by French speakers in Brussels - in the
Flemish Community. Symbolically, the
Flemings have chosen Brussels as the capital of their community.
The
francophones have not taken the step of "amalgamating" their regional
and Community institutions, a step which - it has to be admitted - would have
had completely different political and financial implications from the one
taken in the north of the country. The
French speakers of Wallonia represent only about 32% of the population, or
3,200,000 people. The number of French
speakers in Brussels is estimated at approximately 800,000. In other words, although the French speakers
of Brussels constitute a minority within their Community, they nevertheless account
for roughly one fifth of that Community's population. In addition, economic conditions and living standards are
considerably different in Wallonia and Brussels. Lastly, as has already been mentioned, the idea of a Community
does not have the same historical and symbolic appeal for the French speakers
as it does for the Flemings. That is
why French speakers and Walloons fought a fierce battle to obtain the
establishment of a Region in Brussels, with success coming only in 1989. Flemish acceptance of the establishment of
this Region, with its own autonomy, was made subject to several conditions.
The
first condition is that the Region in question, in the institutional sense of
the term, should correspond to the bilingual region of Brussels-capital.
This is limited to 19 communes
(including the city of Brussels proper).
It does not coincide with the socio-economic region of Brussels which,
like all major cities, is tending to broaden its economic hinterland
extensively. However, this economic
hinterland, especially in terms of housing, is located in the Flemish Region, a
region which surrounds the Brussels Region on all sides. Some of the communes adjoining Brussels,
which were originally Flemish, have absorbed a great deal of French influence
and enjoy so-called "linguistic facilities". Other communes have been given no such
facilities, even though they have substantial French-speaking or foreign
minorities. This is because of the
Flemish desire to check the particularly significant inroads made by French
influence in the area of Flemish-Brabant around Brussels.
The second
condition laid down by the Flemings for the establishment of the region of
Brussels-capital was the adoption of a set of measures to protect the
Flemish minority in Brussels. At
the 1989 elections for the Council of the Region, roughly 15% of the votes were
cast for Dutch-speaking lists. The
regional institutions of Brussels thus provide for a whole range of guarantees
on behalf of this minority. Broadly
speaking, it may be said that the guarantees in question are modelled on those
granted to French speakers within the federal State. For example, two of the five members of the Brussels regional
government must be Flemings, and this corresponds, mutatis mutandis, to the level
of parity representation in the federal Council of Ministers.
4.3 The
establishment of the region of Brussels in 1989 enabled the francophones and
the Walloons to envisage an institutional set-up based essentially on regional
realities. For the demographic and
economic reasons outlined above, they allowed the Community institutions and
regional institutions to remain in coexistence, although this coexistence is
very difficult to manage. Indeed, the
French Community is isolated in institutional and budgetary terms, unlike the
Flemish Community, which remains closely identified with its region. This
Community has consequently been confronted with financial problems, especially
since 1989, the first year in which the enormous education budget was transferred
to it. Unlike the Flemish Community
which receives regional grants on account of the merger of institutions, the
French Community has to cope with its budgetary constraints unassisted. Moreover, the very special nature of its
jurisdiction with regard to the territory of the bilingual region of
Brussels-capital makes it awkward if not impossible for it to resort to
taxation. The exercise of fiscal powers
is hardly reconcilable with a brand of federalism that is not entirely based on
territorial principles.
This
problem area was central to the constitutional review carried out in the spring
of 1993, a review which, on the basis of complex mechanisms, makes it possible
for some of the powers of the French Community to be exercised at regional
level in Wallonia and, what is more, to be exercised by institutions proper
to the French speakers, institutions set up within the region of
Brussels-capital.
The
institutional map of Belgium will therefore once again be redrawn, since the
two great Communities will no longer exercise the same powers. On the French-speaking side, certain
responsibilities will be taken over either by the Walloon region or by
the French-speaking representatives of the Brussels regional institutions.
The
lack of symmetry between the two major component parts of the country is
becoming even more marked than before.
Although this complexity is perplexing to the foreign observer, it
merely confirms the diagnosis above: the difficulty with Belgian federalism
stems not only from its centrifugal nature or the small number of federated
entities, but to an even greater extent from the fundamental debate about
the nature of those entities. While
the idea of a community is given clear priority by the Flemings, making their
approach a more coherent one, preference is given to a regional philosophy in
the south of the country. This is all
the more true following the recent central government overhaul which provides
for a radical re-organisation of the apportionment of responsibilities among French-speaking
Community institutions and Walloon and Brussels regional institutions. The very idea of a French Community has been
partially challenged. It is quite
obvious that the process of Belgian federal construction has not yet been
placed on a fully stable footing.
5.1 Certain
problems relating to the protection of minorities also arise at the local
level. The solutions applied to them
have changed substantially over the years, as a result of the growing
insistence by the Flemish movement on the principle of territoriality.
As
was mentioned above, the language frontier had been definitively established by
law in the early 1960s, and this led to difficulties, some of which had
significant political repercussions (the problem of Fourons). After 1970, the language frontier could no
longer be modified otherwise than by means of a law adopted by a special
majority.
At
the same time, the 1970 Constitution gave the Flemish and French Communities
the task of regulating the use of languages in three areas: (i) administrative
matters; (ii) education in institutions established, subsidised or recognised
by the public authorities; (iii) social relations between employers and staff
as well as the measures and documents required of firms by laws and regulations.
This
Community jurisdiction in respect of the use of languages is broader than the
powers previously (and still) exercised by the legislature under Article 23 of
the original text of the Constitution (Article 30 of the Co-ordinated
Constitution). Basically, this
jurisdiction reflects an aspiration on the part of the Flemings to establish
the maximum possible linguistic homogeneity (especially in social and economic
matters) within their linguistic field of influence, that is to say in the
Dutch-speaking region. It should be
pointed out, however, that these areas of jurisdiction remain limited and that,
what is more, the principle of linguistic freedom is regaining
ascendancy. It should also be added
that, out of a concern to protect minorities, certain exceptions to the
Communities' jurisdiction in respect of languages has been provided for in the
relevant legislation. The Communities
never exercise such jurisdiction in the bilingual region of Brussels-capital,
where the use of languages continues to be governed by national law. Similarly, the Flemish and French
Communities have no authority over certain communes, although the latter
are situated in a monolingual region: six communes on the outskirts of Brussels
(situated in the Dutch-speaking region) and the so-called "language
frontier commmunes" which have Flemish, French-speaking or German-speaking
minorities, as the case may be. The
linguistic status of these communes was regarded as so important that in 1988
it was decided by the constitution-making body that only a law adopted by a
special majority could modify that status.
The
territoriality rule is sometimes resented by French speakers as a sort of
violation of "human rights". They
conceive of language rights primarily as personal rights. It was precisely to counter this conception
that the Flemish movement reacted, stressing the need to defend the linguistic
homogeneity of Flemish territory against francophone
"imperialism". In its famous
judgment on the linguistic rules applicable to education in Belgium,
the European Court of Human Rights recognised the overall legitimacy of the aim
pursued by Belgian linguistic legislation, namely the maintenance of regional
linguistic homogeneity.
5.2 Over
and above the application of laws concerning the use of languages, the
existence of local linguistic minorities also gives rise to a problem with
regard to the drawing of constituency boundaries for national elections. In this connection, one particular
constituency, that of Brussels-Hal-Vilvorde, plays a key role. This highly populated electoral district
comprises both the bilingual region of Brussels-capital and the district of
Hal-Vilvorde in the Flemish region.
However, a large number of French speakers (approximately 100,000) are
included in the population of this Flemish district, whether because they live
in the six peripheral communes with special facilities or because they are
resident in purely Flemish communes.
The
amalgamation of these two administrative districts for the purpose of general
elections thus enables a large number of French speakers living in Flanders to
choose elected representatives who will take the oath in French and form part
of the French language group in the House and the Senate. During the most recent institutional
negotiations in Belgium, which resulted in the revision of the Constitution in
May 1993, the Flemings demanded the splitting up of the constituency of
Brussels-Hal-Vilvorde on the basis of the strict application of the
territoriality rule. However, the
French speakers were able to keep the district intact, both for elections to
the House and for the direct election of senators.
The
situation is different with regard to the Community Councils. Prior to the 1993 revision of the
Constitution, as is illustrated by the judgment of the European Court of Human
Rights in the Clerfayt and Mathieu Mahin case,
French speakers living in the Hal-Vilvorde district could appoint
representatives to the Council of the French Community through their votes cast
in general elections. However, this
Community had no territorial jurisdiction over them and, furthermore, by
casting the votes in question, French-speaking voters forfeited all rights to
regional representation.
This
situation is radically altered by the current reform which eliminates the
"dual mandate" system and provides for direct elections. These elections will take place on a purely
regional basis: it follows that the large French-speaking minority established
in Flemish Brabant will henceforth be required to vote exclusively for Flemish
regional and Community representatives.
Canada
THE CONSTITUTIONAL PROTECTION OF
MINORITIES IN CANADA
by
Senator G?rald-A.
Beaudoin,
Professor in the Faculty of Law,
University of Ottawa (Canada)
CONTENTS
INTRODUCTION
I. The
division of legislative powers and the protection of minorities.
II. The
protection of minorities in institutions
A. Central institutions
B. Provincial institutions
III. Religious rights
IV. Language rights
A. In schools
B. English and French at parliamentary, legislative and
judicial level
V. Fundamental rights
A. Freedom of religion
B. Sex equality
C. Collective rights
D. Multiculturalism
VI. The rights of the aboriginal peoples
VII. The amendment procedure
CONCLUSION
INTRODUCTION
Canada is a constitutional
monarchy and a parliamentary democracy. It became a federation in 1867. Its
constitution is partly written and partly unwritten. A Charter of Rights and
Freedoms has been part of the Constitution since 1982. The principle of the
rule of law applies in Canada, where the judicial system is both powerful and
independent.
The Constitution Act of 1867,
our basic law, contains several provisions covering the protection of
minorities. In 1982, a second Constitution Act took this protection system
further by embodying, inter alia, a Charter of Rights and Freedoms in the
Constitution.
This paper will answer the
following questions: has the division of legislative powers been influenced by
the presence of minorities? Are minorities protected in federal and provincial
institutions? Does the Canadian Constitution protect religious rights? language
rights? fundamental rights? the rights of the aboriginal peoples? What
conclusions can be reached regarding this protection?
I. THE
DIVISION OF LEGISLATIVE POWERS AND THE PROTECTION OF MINORITIES
The division of powers
adopted in 1867 was intended, first and foremost, to be politically,
economically and socially functional, but it also took account of the presence
of minorities in Canada.
Canada's decision to opt for
a federal structure in 1867, instead of the legislative union desired by the
Upper Canadian (Ontario) leader, Sir John A. MacDonald, was taken partly
because Sir Georges Etienne-Carter, leader of the then Lower Canada (now
Quebec), wanted this as way of protecting French-speaking
"Canadians", who were a minority in the country as a whole, although
they formed the majority in Quebec. Legislative union would have been
unacceptable to Quebec.
Since Canada was a
heterogeneous federation with more than one language and more than one culture,
the thirty-three Fathers of the Federation decided, in Section 93 of the
1867 Constitution, to make education the preserve of the provinces; Quebec was thus able to choose its own
education system.
Cartier, one of the Fathers
of the Federation and mainly responsible for the Constitution's federal
character,
was very careful to include, in Section 92, "property and civil
rights" - a category which, as the courts have pointed out,
comes straight from the Quebec Act of 1774. This allowed Quebec to keep its own
private and civil law, which it had codified and which had come into force on 1
August 1866. Sections 94 and 98 of the Constitution Act of 1867 put the
finishing touches to this guarantee. Not being mentioned in Section 94, Quebec
escapes the possibility of private law's being harmonised. Section 98 provides
that Quebec judges must be trained in civil law. The French-speaking
minority in Canada - mainly (though not solely) concentrated in Quebec - is
thus protected by the Constitution. The common law system applies in the other
provinces.
Finally, Section 41 of the
Constitution Act of 1982 states that the unanimous consent of the federal
government and the ten provinces is required for any change in the
constitutional laws relating to the Supreme Court. The scope of this provision
is a source of some discussion, since the Supreme Court Act is not mentioned
among the constitutional laws.
If it does in fact make the "6-3" composition a constitutional
requirement, then Quebec enjoys special protection here. In my opinion, the
term "composition" in Section 41 covers both the figure
"nine" and the "6-3"
distribution.
II. THE
PROTECTION OF MINORITIES IN INSTITUTIONS
A. The
central institutions
"Representation
according to population", current in Canada before the advent of
federalism, still applies in the House of Commons in Ottawa. There are no exceptions
to this basic principle of our parliamentary democracy.
In the Senate, the Fathers of
the Federation opted for representation by region. Quebec and Ontario are both
regions, with 24 senators each out of a total of 104. In 1867, the three maritime
provinces formed a single region, which was assigned 24 senators. This is still
the case today. Newfoundland joined the Canadian Federation in 1949 and was
given six senators. The West of Canada comprises four provinces with six
senators each. The federal territories, the Yukon and North-West, have
one senator each.
Several provinces, apart from
Quebec and Ontario, have been calling for the past twenty years or so for a
Senate that would be "equal by province", rather than "by
region". This principle has not so far been incorporated in the
Constitution.
The Senate's composition
provides, I believe, some protection for Quebec, which has had almost a quarter
of the seats since 1915, as has Ontario. In 1867, each of these two provinces
had a third of the seats. Cartier had accepted representation according to
population in the House of Commons on condition that Quebec was given a third
of the Senate seats and maintained parity with Ontario, whose population was
larger.
The principle of
representation by region is partly intended to protect Quebec. This protection
is relative, however. Under the Constitution, it could be withdrawn. A
consensus of the federal authorities and seven provinces representing 50% of
the population would be enough to do this. This is one of the principal gaps in
the constitutional amendment procedure
adopted in 1982. The right of withdrawal provided for in Section 38 (3) of the
Constitution Act of 1982 cannot protect Quebec here; withdrawal from the Senate
is not possible.
The Senate was deprived of
its right to veto constitutional changes on 17 April 1982 by Section 47 of the
Constitution Act. Its veto now applies only in cases provided for in Section
44, which states:
Subject
to Sections 41 and 42, Parliament may exclusively make laws amending the
Constitution of Canada in relation to the executive government of Canada or the
Senate and House of Commons.
The scope of this power is
restricted. It replaces Section 91 (1) of the Constitution Act of 1867, which
was repealed in 1982.
In the Supreme Court, the
court of last instance, Quebec appoints three of the nine judges, or one-third
of the total. This provides special protection for Quebec which, as stated
above, is the only province with a civil law system.
B. The
provincial institutions
The provinces have only one
legislative chamber. The principle of representation according to population
applies, as it does in the Canadian Parliament.
The "first-past-the-post"
electoral system applies at both provincial and federal levels.
III. RELIGIOUS
RIGHTS
Education was considered very
important in 1867, as indeed it is today. A separate article, Section 93, was
devoted to it in the section covering the division of legislative powers. In
the opinion of Chief Justice Duff, one of our leading legal authorities, this
was one of the main elements in the great compromise of 1867.
This legislative power is backed by constitutional guarantees to protect the
rights of the Catholics and Protestants, who made up almost the whole population
in 1867, as well as the right to dissent. A system of special and conditional
appeal by religious groups to the federal political authorities was also
devised, although this proved ineffective in the Manitoba Schools case between
1890 and 1896 and has since fallen into disuse.
In Quebec, religious rights
include the right to denominational schools in Montreal and Quebec, and
elsewhere the right to dissent; they also include the right to manage schools,
recruit teachers, choose textbooks and levy taxes. This list is not intended to
be restrictive.
The guarantees contained in
Section 93 gave rise to a number of celebrated judgments from the federation's
earliest years, particularly from the 1890s on, with the Barrett judgment being
one of the most significant.
The Catholic and Protestant communities then realised that these guarantees
were relative, since they left Manitoba free, for example, to levy double
taxes. It took some of the provinces many years to arrive at acceptable
political compromises in this area.
The minorities also
discovered, in 1917,
that classroom languages were not protected by Section 93. This gap was not
filled until 1982, when the Canadian Charter of Rights and Freedoms was
adopted. In the meantime, it had done immense injustice to the French-speaking
minorities outside Quebec, and had seriously shaken the Canadian federation.
Under Section 93, education
is still exclusively a matter for the provinces. This article is subject to two
constitutional guarantees: religious since 1867, and linguistic since 1982.
In its Greater Hull School
Board judgment, the
Supreme Court ruled that Sections 339, 346, 353, 362, 366, 375, 382, 495, 498,
499 and 500 of a Quebec local taxation act (Act No. 57) were invalid, since
they failed to stipulate that grants must be distributed proportionally and
since, if a referendum were held, the wishes of a school board might be
outweighed by the wishes of voters other than those for whom the board was
responsible.
In this judgment, the Supreme
Court in no way departed from the earlier Hirsch judgment,
which remains of capital importance, since it clearly defined the scope of
Section 93. In a sense, it served as the basis of the later judgment. In it,
the Court had ruled that the right of Protestants and Roman Catholics to manage
and control their own denominational schools had been legally recognised in
1867 and that, in the matter of finance, the law gave school governors and
school boards the right to receive proportional subsidies and to levy taxes in
their own municipal areas.
In their schools legislation,
the provincial legislatures must respect the religious rights given Catholics
and Protestants in 1867. The Hirsch judgment shows, however, that they may also
establish a neutral sector - Jewish, Moslem or other.
Since 1982, denominational
education has also been protected by Section 29 of the Canadian Charter of
Rights and Freedoms. The religious guarantees of Section 93 of the Constitution
Act of 1867 are still in force; the Charter makes no changes here.
When asked for a ruling on
Ontario Act No. 30,
which deals with the financing of Catholic secondary schools in Ontario, the
Supreme Court concluded that it was valid under the introductory provision and
sub-section 3 of Section 93 of the Constitution Act of 1867. Under the great
political compromise concluded in 1867, the religious rights and privileges
already granted at that time were to continue, and the legislatures might
establish others as the necessity arose.
The protection provided by
Section 93 (1) is not the same as that provided by Section 93 (3), since laws
adopted under the second provision may be amended or repealed, while rights
conferred under the first are inalienable. The Court ruled that the rights covered
by Section 93 (1) were protected by the Charter, even without Section 29 of the
latter. The rights covered by Section 93 (3) were protected by the Charter
because of the absolute power of the provinces to enact these laws. In short,
as the Court declared, the confederal compromise is to be found in the whole of
Section 93, and not in its constituent parts taken separately.
Judges Estey and Beetz took
the view that provincial legislatures could legislate on educational matters
with two restrictions: no law might violate the minimum constitutional
guarantees set out in Section 93 (1), and the provinces' exercise of their
powers could be limited by federal intervention under Section 93 (4).
In the Greater Montreal
Protestant Schools Board case,
the Supreme Court upheld two regulations issued by the Quebec Minister of
Education, which introduced a common curriculum for all non-religious
subjects in all Quebec schools.
According to the Court,
Section 93 (1) of the Constitution Act of 1867 protects not only the religious
aspects of denominational schools, but also the non-religious aspects
which are needed to make the religious guarantees effective. The constitutional
right of certain groups to
denominational schools, financed by the state in a manner prescribed by
law, must not be interpreted as an individual right or freedom guaranteed by
Section 29 of the Charter, but rather as a right guaranteed by Section 93. The
Court declared that the regulations in question did not have the effect of
determining the content of moral or religious instruction in Protestant
schools. The limited power to regulate the curriculum in denominational schools
which school commissioners and governors had in 1867 is constitutionally
guaranteed only insofar as it is needed to make the religious guarantees
effective. The subsidiary argument that Section 93 (2) gave no constitutional
force to rights and privileges conferred by the law existing in Ontario and
Quebec in 1867 was rejected.
Chief Justice Dickson and
Judge Wilson declared that, even if Section 93 (2) was intended to increase the
constitutional protection of dissenting schools in Quebec in order to put them
on an equal footing with the separate schools in Ontario, the Quebec
legislature would still have authority to regulate the powers of the governors
of dissenting schools concerning the curriculum, provided that such regulation
was not prejudicial to the denominational character of those schools.
Finally, Judge Beetz,
speaking for the majority, held that Section 93 of the Constitution Act of 1867
did not confer rights or freedoms of the kind provided for in the Canadian
Charter but, rather, privileges and that it should, to this extent, be seen as
an exception. He argued that, although it might have its roots in the concepts
of tolerance and diversity, the exception stated in Section 93 did not
constitute a general affirmation of freedom of religion or conscience. The
constitutional right of certain groups of people in a province to have
denominational schools, financed by the State in a manner prescribed by law,
must not be interpreted as an individual right or freedom guaranteed by the
Charter or, as Professor Peter Hogg had put it, as a small declaration of
rights for the protection of religious minorities.
IV. LANGUAGE
RIGHTS
A. In
Schools
Section 23 of the Canadian
Charter of Rights and Freedoms introduces a linguistic guarantee in the
educational field. It applies to all ten provinces and provides that:
23. (1) Citizens of Canada
(a)
whose first language learned and still understood is that of the English or
French linguistic minority population of the province in which they reside, or
(b)
who have received their primary school instruction in Canada in English or French
and reside in a province where the language in which they received that
instruction is the language of the English or French linguistic minority
population ofthe province, have the right to have their children receive
primary and secondary school instruction in that language in that province.
(2) Citizens of Canada of whom any child has
received or is receiving primary or secondary school instruction in English or
French in Canada, have the right to have all their children receive primary and
secondary school instruction in the same language.
(3) The right of citizens of Canada under
subsections (1) and (2) to have their children receive primary and secondary
school instruction in the language of the English or French liguistic minority
population of a province
(a)
applies wherever in the province the number of children of citizens who have
such a right is sufficient to warrant the provision to them out of public funds
of minority language instruction; and
(b)
includes, where the number of those children so warrants, the right to have
them receive that instruction in minority language educational facilities
provided out of public funds.
In the French Language
Charter case of 1984,
the Supreme Court unanimously decided that Sections 72 and 73 of the French
Language Charter (Act No. 101), adopted by Quebec, were incompatible with
Section 23 of the Canadian Charter and thus invalidated, to that extent, by
Section 52 of the Constitution Act of 1982. The Court added that the
restrictions imposed by Section 73 were not legitimate restrictions within the
meaning of Section 1 of the Charter.
The Court said that Section
23 of the Charter had been regarded by the framers of the Act in 1981 as a
perfect example of the kind of situation which required reform. Had Section 73
been adopted after the Charter's coming into force, the decision would have
been the same.
Section 73 of the French
Language Charter is clear, precise and specific. It derogates sharply from
Section 23 of the Canadian Charter and has the effect of modifying it. This is
its true effect. The restrictive clause in Section 1 of the Charter cannot
amount to a derogation (as provided for by Section 33 of the Charter in certain
sectors) or to an amendment of the Charter, the procedure for which is
specified in Sections 38ff of the Constitution Act of 1982.
The Supreme Court noted that
Section 23 of the Charter guaranteed certain rights to certain categories of
person; these categories were clearly specified. No provincial legislature was
entitled to redefine or alter them. It was bound by the Charter and could not
disengage from it.
In the Supreme Court's view,
Section 23 was so precise, the right guaranteed so specific and the categories
so clearly defined that the restriction incorporated in Section 73 could be
regarded only as a straightforward derogation from it or a direct alteration of
it. No real scope was left for Section 1 to come into play.
The Court pointed out that
Section 23 was very concrete, and did not state general, abstract principles of
the kind found in the other charters. Because of its specific character, it
comprised a unique set of constitutional provisions, with no parallel outside
Canada.
Section 23 is of historic
importance for Canada; it remedies school systems considered deficient by the
authors of the 1981 Constitution. The gap is filled by a single measure
applying to all ten provinces.
The Supreme Court confirmed
its decision on Act No. 101
in the Mah? judgment.
It repeated that Section 23 of the Charter was intended as a remedy and that
this was the spirit in which it should be interpreted broadly and liberally.
The main, guiding principle
which emerges from the Mah? judgment
is that the Supreme Court gives linguistic minorities speaking an official language
the right to manage and control the language of instruction, the content of the
curriculum and the minority schools. The extent of management and control may
vary with the number of pupils actually enrolled. They will be absolute when
"the number justifies it"; they will be relative, i.e. there will not
necessarily be a homogeneous school board or a homogeneous school, when the
number of pupils enrolled is too small.
Speaking for the Court, Chief
Justice Dickson defined the minimum level of Section 23 of the Charter when he
said that Section 23 required, at minimum, that instruction be provided in the
minority language; if there were too few pupils to justify a programme that
could be described as minority language instruction, Section 23 did not require
that such a programme be established.
He defined the upper level
when he said that the phrase "minority language educatioinal
facilities" established an upper level of management and control.
Every case must necessarily
be assessed separately, since the Supreme Court does not specify
"justifying" figures. It does, however, mention two factors which are
to be taken into consideration: (1) the services appropriate to the number of
pupils should be determined, as should (2) the cost of the planned services. In
this connection, it specified that the most important point was, perhaps, that
setting up wholly separate schools boards was not necessarily the best way of
realising the aim of Section 23. What was, however, essential to realising it
was that the language group should have control over those aspects of education
which concerned or affected its language and culture. To a great extent, this
degree of control could be secured by guaranteeing the minority representation
on a joint schools board and by giving its representatives exclusive control
over all those aspects of the minority's education which concerned linguistic
and cultural matters.
Section 23 of the Charter
thus constitutes a general right to instruction in the minority language, its purpose
being, as the Supreme Court affirmed, to preserve and promote the language and
culture of the minority throughout Canada.
In the Mah? judgment,
the Supreme Court also considered equality rights and religious rights. It
found that neither Sections 15 and 27 of the Canadian Charter nor Section 93 of
the Constitution Act of 1867 were incompatible with Section 23 of the Charter.
Undoubtedly, as Professor
Pierre Foucher wrote in an article, the Mah? judgment is the
"judgment of the decade in the field of language rights".
Firmly rooted in the logic of Section 23, but uncertain until it was confirmed
by the Supreme Court, recognition of the right of management and control
represents - although the extent of its exercise may vary - a definite step
forward for the French-speaking minorities. Moreover, the positive
obligation of legislating, imposed by the Supreme Court on the provinces less
sympathetic to language equality, is a source of hope for all the country's
French speakers.
B. English
and French at parliamentary, legislative and judicial level
Speaking for his colleagues
in the Manitoba language rights case, Chief Justice Dickson said that the
importance of language rights was founded upon the essential role played by
language in the existence, development and dignity of every human being. It was
is language which enabled us to formulate ideas, to structure and order the
world around us. Language was the bridge between isolation and community which
enabled human beings to define their rights and obligations towards each other
and so live together in a comunity.
In 1867, language rights were
enshrined in Section 133 of the Constitution Act. This section deals with
legislative, parliamentary and judicial bilingualism in Quebec and in federal
government. French was
not protected in any of the three other provinces which existed at that -
surprisingly, not even in New Brunswick.
This was remedied in 1982.
French was, however,
protected in Manitoba when it joined the Federation in 1870. Sir Georges-Etienne
Cartier dreamed of making it a second Quebec. Section 23 of the Manitoba Act of
1870 essentially repeats for Manitoba the provisions contained in Section 133
for Quebec. However, Manitoba passed a law in 1890, removing this protection.
Two lower courts declared the measure invalid, but Manitoba chose to ignore
their judgments. It was not until 1979 that the Supreme Court of Canada had
occasion to decree that Manitoba must comply with Section 23,
since it had no right to strike out this constitutional guarantee unilaterally.
In June 1985, the Supreme Court declared, in its judgment on language rights in
Manitoba, that Section 23 was mandatory and that laws passed only in English
were invalid; it added, however, that these laws would have temporary validity
from the date of the judgment until the minimum period needed to translate,
re-adopt, print and publish them had expired.
In 1982, the Constitution
underwent enormous changes in respect of language rights. Sections 16 to 22 of
the Constitution Act of 1982 supplemented Section 133 of the Constitution Act
of 1867. New Brunswick agreed to be bound by the sections of the Charter
concerning official languages. This provides appreciable linguistic protection
for the Acadians. Section 23 of the Manitoba Act remained intact.
Sections 16 to 20 go much
further than Section 133, taking in a number of very important services as
well, and establishing institutional bilingualism. It is to be hoped that other
provinces will follow New Brunswick's example.
Section 16 lays down the
principle of equality of the two official languages at federal government
level. This gives the French-speaking minority in Canada a very high degree of
constitutional protection.
Although both languages are
official at federal level, the same is not the case at provincial level, where
asymmetry prevails.
This question has been a
focus of attention in Canada since the Laurendeau-Dunton Commission, the
federal Act of 1969 on official languages, and Quebec Acts Nos. 63, 22 and 101.
Section 16 of the Canadian
Charter of Rights and Freedoms provides:
16. (1) English and French are the official
languages of Canada and have equality of status and equal rights and privileges
as to their use in all institutions of the Parliament and government of Canada.
(2) English and French are the official
languages of New Brunswick and have equality of status and equal rights and
privileges as to their use in all institutions of the legislature and
government of New Brunswick.
(3) Nothing in this Charter limits the
authority of Parliament or a legislature to advance the equality of status or
use of English and French.
In 1867, language minorities
did not have the protection they enjoy today. What an enormous change there has
been! Having made such a good start, however, we should not be content to leave
things there: the struggle for protection of language rights at provincial
level must continue.
In the Acadians' Society of
New Brunswick case,
the Supreme Court found that the principles of natural justice and Section 13
(1) of the Official Languages of New Brunswick Act entitled a litigant in a New
Brunswick court to be heard by judges capable of conducting the proceedings and
following the evidence regardless of the official language used by the parties.
This right is not founded, however, on Section 19 (2) of the Constitutional
Charter. The Court declared that the rights guaranteed by Section 19 were of
the same kind as those protected by Section 133 of the Constitution Act of 1867
.
Judge Beetz remarked that
these rights belonged to the speaker, drafter or author of the procedural
documents produced in court, and gave the speaker or drafter the power,
guaranteed in the Constitution, to speak or write in the official language of
his choice. Furthermore, neither Section 133 of the Constitution Act of 1867,
nor Section 19 of the Charter guaranteed, any more than did Section 17 of the
Charter, that the speaker would be heard or understood in the language of his
choice, or gave him the right to be.
The judge in such cases must,
however, take reasonable steps to understand the language used in the
pleadings, in the interests of natural justice. It is up to him to decide
honestly and as objectively as possible to what extent he can understand the language
in which the proceedings are being conducted.
The Court offered no
definition of "reasonable steps". Simultaneous interpretation might
be one such measure. It has left the door open for clarification in a later
case.
The Court makes an important distinction
between classic funadamental rights and language rights. The latter are the
product of political compromise while the former are derived from long-established
principles. This is why the two kinds are interpreted and applied differently.
According to the Supreme Court, courts should be slow to alter language
guarantees which result from political compromise. Judge Beetz suggested that
the courts should treat them more cautiously than than they would when
interpreting legal guarantees.
In the Acadians' Society
case, Chief Justice Brian Dickson asked, in his dissenting opinion, what use
the right to express oneself in one's own language was if the people one was
addressing could not understand it?
Mrs. Justice Wilson shared
this view.
In the Acadians' Society
judgment, the
Supreme Court took care to point out that legislatures also have a part to play
in protecting language rights. The legislator must legislate in order to
introduce bilingualism. The judiciary and the legislature both have parts to
play.
V. FUNDAMENTAL
RIGHTS
Since the end of the Second
World War, there has been a strong movement in favour of incorporating charters
of rights and freedoms in constitutions. The example originally set by America
in 1789 has been followed by several countries since 1945. Canada has not
escaped the trend. Indeed, having passed through various stages, and adopted
legislative charters, it acquired a genuinely constitutional Charter
of individual rights in 1982. Having a strong judiciary, it has firmly followed
the American line - and this is, for us, a very good thing.
In 1982, a Charter of Rights
and Freedoms was incorporated in the Canadian Constitution. This Charter
protects individual rights first and foremost. It safeguards the collective
rights of the aboriginal peoples and of the Catholic and Protestant
communities.
The classic fundamental
rights, democratic rights, the right to freedom of movement, legal guarantees,
the right to equality and language rights are all protected.
A. Freedom
of religion
Canada has no state religion,
as Judge Taschereau pointed out in the Chaptut v. Romain judgment.
In the Big M. Drug Mart judgment,
the Supreme Court declared, in passing, that to impose a state religion would contravene
Section 2 of the Charter.
In the same judgment,
the Supreme Court concluded that Section 91 (27) of the Constitution Act of
1867 gave Parliament power to legislate on Sunday observance, but that the
Sunday Act violated the principle of freedom of religion laid down in Section 2
(a) of the Charter and that Section 1 of the Charter could not make such an act
lawful. In passing, it spoke of the interaction between Sections 93 and 2, but
added that it was not required, for the time being, to give a ruling on this
point.
B. Sex
equality
The Canadian Charter of
Rights and Freedoms provides constitutional protection for equality of the
sexes. Section 15 of the Charter prohibits discrimination based, inter
alia, on sex, and Section 28 expressly provides:
Notwithstanding
anything in this Charter, the rights and freedoms referred to in it are
guaranteed equally to male and female persons.
Women outnumber men in
Canada, but can actually be said to have constituted a minority group until now
in more respects than one. They have not been equal, but have been a
"minoritised" majority.
Happily, Sections 15 and 28
of the Canadian Charter of Rights and Freedoms of 1982 have now rectified this
situation. In our opinion, because of its wording, which begins with a
derogation clause, Section 28 operates independently of the other articles in
the Charter. It is a substantive, and not simply procedural article. It was
added after the compromise of November 1981, and has its own raison
d'?tre. It prohibits all discrimination between men and women. It covers
all the rights mentioned in the Charter, and not only those which are in force.
Section 15 provides, for its part, for social promotion programmes to make it
possible, inter alia, for women to achieve equality in practice.
Section 28 applies to the
whole Charter. I do not believe, for example, that any cultural group could use
Section 27, which protects the multicultural heritage, to perpetuate a
patriarchal or matriarchal system which violated the Charter.
C. Collective rights
The Constitution of 1867
includes a number of collective rights. Case law has stressed that the
protection provided by Section 93 applies to Catholics and Protestants as
groups, as "classes".
The same case law has seen a "racial" category in Section 91 (24).
Controversy continues, however, over Section 133. According to Chief Justice
Laskin, Section 133 gives people a "constitutional right" to use
either language. Before he became a judge, Professor
W.S.Tarnopolsky wrote that language rights seemed to lie in a kind of border
zone.
Professor Pierre Carignan places them firmly in the category of collective
rights.
Canadian lawyers have not so
far concerned themselves greatly with the definition of collective rights.
In the Greater Hull School
Board case, Judge Le Dain said that what the term "collective rights"
suggested was that the interests of the entire class of people or community in
respect of denominational education should be taken into account, and not the interests
of the individual taxpayer.
Professor Pierre Carignan has
defined collective rights as follows:
Writers
on the law describe rights as collective either because they belong to
communities or because of they must be exercised collectively.
Judge W.S.Tarnopolsky has
remarked that :
The
assertion of group rights [...] is based upon a claim of an individual or a
group of individuals because of membership in an identifiable group.
D. Multiculturalism
In 1982, also for the first
time, the words "multicultural heritage" appeared in the
Constitution. Section 27 of the Constitutional Charter provides that:
This
Charter shall be interpreted in a manner consistent with the preservation and
enhancement of the multicultural heritage of Canadians.
It will be noted that the
words chosen are "multicultural heritage and not "cultural
rights".
It will be recalled that,
following the work of the Laurendeau-Dunton Commission, Prime Minister
Trudeau made a statement on multiculturalism in the House of Commons on 8
October 1971, in which he said that, although there were two official
languages, there was no official culture, and no ethnic group had precedence.
He added that multiculturalism in a bilingual context seemed to the government
the best means of preserving Canadians' cultural freedom.
Several Supreme Court
judgments have already dealt with Section 27, as have a considerable number of
judgments by other courts.
The scope of this article is
subject to discussion. The words "rights and freedoms" do not appear
in it! Professor Hogg has suggested that this article may be pure rhetoric,
but Professor (now Judge) Tarnopolsky believed that it had real substance.
Professor Magnet wrote that Section 27 "requires a little dynamism".
The courts have occasionally
based their judgments on this article, as the Supreme Court did in the Big M.
Drug Mart judgment,
when it ruled that the Sunday Act violated freedom of religion and was not
compatible with maintenance and enhancement of Canadians' multicultural heritage,
as provided for in Section 27.
The purpose of Section 27 is
plainly to indicate that Canada, although a bilingual country at federal level
and in some provinces, has nonetheless a multicultural heritage.
Professor Magnet concludes
his study of Section 27 of the Charter as follows:
This
article allows the Charter's discipline to be relaxed in cases where the full
exercise of individual rights would threaten the survival of certain cultural
communities. Thus Section 27 makes it possible to orientate development of the
Charter to match the special demands of
the dual nationality and cultural pluralism which are, perhaps, the most
striking features of a cultural tradition which is genuinely unique.
It can therefore be said that
the Constitution Act 1982 changed the fate of the ethnic minorities.
Section 15, which concerns
equality rights, prohibits various forms of discrimination, particularly those
based on national or ethnic origin. This article can be taken in conjunction
with Section 27.
The possibility of combining
Sections 2 and 27 of the Canadian Charter of Rights and Freedoms can be used to
protect an ethnic minority's religion.
In the Edwards Books judgment,
the Supreme Court ruled on the closing of shops on Sunday. It recognised the
validity of an Ontario law, the Retail Business Holidays Act, which was
intended to provide a uniform weekly day of rest. This act was passed in
pursuance of the legislative powers given Ontario by Section 92 of the
Constitution Act of 1867. The Court added that Section 2 of the Ontario Act
struck a blow at the religious freedom of retailers whose day of rest was
Saturday, but that this was justified by Section 1 of the Charter.
In the Edwards Books case,
Chief Justice Dickson noted that freedom of religion had both individual and
collective aspects.
He added that Section 27 of the Charter might be taken into account in
interpreting freedom of religion.
This means that the provinces
may legislate to introduce a uniform weekly day of rest without infringing the
Charter. The Court referred to other countries where Sunday was also the day of
rest: France and Japan, for example. The French Constitution states, however,
that France is a secular country, while Japan is not a Christian country.
VI. THE
RIGHTS OF THE ABORIGINAL PEOPLES
The aboriginal peoples had
little protection in 1867. The 1867 Constitution gave the central Parliament
full legislative authority over the "Indians and the land reserved for the
Indians". Protection of the aboriginal peoples derived from the Royal
Proclamation of 1763 and the treaties concluded with the British Crown. This
protection was, however, extremely relative. In fact, although the provinces
could not interfere with these treaties in their general legislation, the federal
Parliament was allowed to go against them by Section 91 (24) of the
Constitution Act of 1867.
Such was the opinion of the courts.
Parliament defined the term
"Indians" in the Indian Act.
In 1939, the Supreme Court ruled that the Eskimos were covered by Section 91
(24).
The Constitution Act of 1982
uses the word "m?tis" for the first time in the Canadian
Constitution.
Although the rights of the
aboriginal peoples are far better protected than they were in 1867, they have
still to be satisfactorily defined. The whole country has now realised this.
The aboriginal peoples - the first majority to become a minority in this
country - have a constitutional means of having their rights defined and
protected in Sections 35 and 35 (1) of the Constitution Act of 1982.
The first constitutional
amendments introduced in Canada after up-dating of the Constitution in 1982
were made in June 1984 and concerned the aboriginal peoples' rights.
Section 25 of the Charter
states that the Charter does not detract from the rights and freedoms of the
aboriginal peoples of Canada. The aboriginal peoples enjoy special status.
In the Sparrow judgment,
the Supreme Court developed the the Constitution Act of 1982. The Sparrow
judgment is highly important: it is to Section 35 of the Constitution Act of
1982 what the Oakes judgment is to Section 1 of the Charter.
Chief Justice Dickson and
Judge La Forest drafted the judgment with the unanimous (6-0) approval of
the Court, and laid down the framework for interpretation of Section 35 (1).
The Court took the view that
the exercise of a right provided for in Section 35 (1) of the Constitution Act
of 1982 might be restricted.
In its justification test,
the Court ruled out two principles - the concept of "public interest"
and the presumption of validity. Concerning these two principles, it said that
the justification founded upon "public interest" was so vague that it
offered no useful guideline, and so general that it could not be used as a
criterion to determine whether a restriction imposed on certain constitutional
rights was justified.
It added that, although the
"presumption" of validity was now obsolete, given that the ancestral
rights in question had constitutional status, it was clear that the importance
of the aims of conservation had long been recognised in legislation and
government action.
Finally, when subsistence
fishing and conservation measures were the issue, absolute priority should be
given to the aboriginal peoples' right to fish. In this connection, the Supreme
Court explained that the constitutional right stated in Section 35 (1) required
Her Majesty to ensure that her regulations respected this priority, but that
this requirement was not intended to undermine Parliament's authority and
responsibility to introduce and administer general conservation and management
plans for salmon fishing. The aim was, rather, to make certain that these plans
treated the aboriginal peoples in a way which ensured that their rights were
taken seriously.
Under a constitutional
amendment in force since 1984, sex equality applies to the aboriginal peoples.
A Royal Commission, chaired
by Judge Ren? Dussault and Dr. George Erasmus, has been set up to study
and report on the situation of the aboriginal peoples. One of the issues it is
considering is self-government for them.
VII. THE
AMENDMENT PROCEDURE
Education and culture (other
cultural matters) are protected under the constitutional amendment procedure,
and specifically by Sections 38 and 40 of the Constitution Act of 1982. If
seven provinces, comprising 50% of the population, were to decide to transfer
this sector to the central Parliament, the constitution would be amended
accordingly. A dissenting province might still choose, however, to keep its
jurisdiction in this area, and would then be entitled to "just
compensation" from the federal authorities. This provision is of vital
importance for Quebec, the only place where French-speakers are in the
majority. Although they are in a minority nationally, it allows them to oppose
the centralisation of education, insofar as it concerns them in Quebec, and to
keep their legislative competence without suffering considerable economic loss.
Section 40 is worded as follows:
Where
an amendment is made under subsection 38 (1) that transfers provincial
legislative powers relating to education or other cultural matters from
provincial legislatures to Parliament, Canada shall provide reasonable
compensation to any province to which the amendment does not apply.
CONCLUSION
Minorities were already
constitutionally protected in 1867. The Constitution Act of 1982 developed and
expanded this protection, particularly for the aboriginal peoples. We must
pursue this process.
What of the derogation clause
provided for in Section 33 of the Canadian Charter of Rights and Freedoms?
Democratic rights, freedom of movement, language rights, religious rights the
rights of the aboriginal peoples and, in my view, sex equality lie outside the
scope of this clause. Otherwise, however, Section 33 applies and can be used to
waive application of Sections 2, 7 and 15 of the 1982 Charter. We are against
using this clause. In our opinion, the restrictive clause included in Section 1
of the Charter is sufficient.
The Canadian Charter of 1982
is not concerned with social and economic rights. However, these rights are
covered by the provincial charters which all the provinces have and which have
semi-constitutional status.
Our Charter is partly based
on the U.S. Bill of Rights and this, the last great "Enlightenment"
text, was clearly founded on the notion of individual rights. This is the case
of most rights and freedoms in Canada.
We must, I think, be cautious
in dealing with collective rights. They exist in some states for certain
purposes. In Canada, such rights are incorporated in Sections 91 (24) and 93 of
the Constitution Act of 1867. They seem to be justified.
Constitutional charters are
designed primarily to protect the citizen against the growing power of the
state. This was certainly Thomas Jefferson's intention,
and many American judges, from William C. Douglas on, have agreed.
Charters also exist to
protect minorities against parliamentary majorities. Majorities are fickle and,
if left to their own devices, can very easily interfere with the rights of
minorities. This is why minorities must be protected.
Canada is composed of several
peoples. The words "aboriginal peoples" appeared in the Constitution
for the first time in 1982.
In 200 judgments given on the
Charter since 1984, the Supreme Court has revealed its true character. Once
again, its drafters were obliged to use such expressions as "where the
number...so warrants", "reasonable limits", "minority language
educational facilities", to take only three examples of terms which remain
ill-defined.
The Court will also have to
decide whether or not the Charter protects certain implied rights. This was the
case in the United States. It may also be the case in Canada - particularly since, in the Press in Alberta
judgment of 1938, the
Supreme Court had already begun to speak of rights implied by the Constitution.
The Canadian Supreme Court,
which is strong and independent, and
which crowns the Canadian judicial system, has sought, in interpreting the
Constitution, to improve the protection of minorities, particularly in respect
of language and of rights and freedoms generally. It has given the rights of
the aboriginal peoples its attention. The remarkable work which it has done in a
few short years commands admiration.
Canada has made two attempts
to improve its constitutional system since 1982 - in the Meech Lake Accord,
which lapsed on 23 June 1990 because it had not been ratified by all the
provinces, and the Charlottetown Accord of 8 August 1992, which was accepted by
our political leaders, but rejected by the Canadian people in the referendum
held on 26 October 1992. Had they succeeded, these two initiatives would have
improved the constitutional protection of minorities.
Germany
PROTECTION OF MINORITIES IN FEDERAL
AND REGIONAL STATES
by
Mr
H. Steinberger
Professor at the
University of Heidelberg (Germany)
Director,
Max-Planck Institute
for
Foreign Public International Law
The structure and organisation
of Germany as a federation of individual states does not rely on ethnic,
religious or linguistic differences of its constituent states, but on the
historical diversity of regions as well as on the territorial division of the
allied post-war zones of occupation.
The federal rules protecting
minorities are very few. Efforts to include a clause on minority protection in
the Basic Law have been made within the Commission on Amending the Basic Law,
composed of members of the Bundestag and of the Bundesrat, but have not as yet
been approved by the legislature. Proposed articles for the Federal Basic Law
for the protection of minorities as outlined by the constituent states of
Sachsen, Brandenburg and Niedersachsen use the terms "national and ethnic"
(Sachsen), "ethnic, cultural, religious or linguistic" (Brandenburg)
and "cultural minorities" (Niedersachsen).
Federal law happens to use
the term "minority" or equivalent terms, e.g. s. 6 of the Federal
Electoral Law provides for an obligatory exception from the 5 % blocking clause to parliament in favour of
"national minorities".
Protocol N° 14 to art. 35 of
the German-German Unification Treaty of 1990 refers to "Sorbish
nationality ... culture ... tradition ... people". The Unification Treaty
itself uses the term "Sorbes" and "Sorbish population" in
Appendix I, which is a constituent part of the treaty. The Basic Law does not
contain any reference to an official language. However, Appendix I to the
Unification Treaty provides for the right to use the Sorbish minority language
in public affairs and therefore constitutes an exception to s. 184 of the
Federal Constitution of Courts Act, in favour of the Sorbish minority. This
exception, which relates to the use of language in court only, resulted from the
process of unification, and has taken into account that the "Sorbish
privilege", set by art. 40 of the former east-German constitution, should
be continued. The treaty is part of federal law.
At the federal level, since
1965 the Danish minority has had the benefit of a special participatory body
attached to the Ministry of the Interior.
Art. 25 of the constitution
of Brandenburg provides for the right of the Sorbish people to use their
language in public affairs. This gives effect to the above protocol referring
to art. 35 of the Unification Treaty.
The term "minority"
or equivalent terms are more often used in state law, e.g. in constitutions of
some constituent states where minorities reside, as in art. 5 of the new
constitution of Schleswig-Holstein of 1990 (using the terms "minorities
and ethnic groups"), in art. 25 of the constitution of Brandenburg of 1992
(using the term "Sorbish people" to describe an ethnic minority) and
in art. 6 of the constitution of Sachsen of 1992, using the term "national
minorities".
Further examples are found,
in common legislation, s. 3 of the Electoral Law of Schleswig-Holstein
("minority"), s. 58 and 60 of the Schools Act of Schleswig-Holstein
("minority") as well as in draft laws in matters of public concern such
as elections, schooling, media and culture.
In the above mentioned texts,
neither the federal or state constitutions nor the statutes define the term
"minority" or the equivalent terms used. But the texts imply both
German citizenship (expressly stipulated in the proposed article of Sachsen for
the Basic Law in view of the protection of minorities) and a lasting presence
on the national territory, because the texts were outlined in consideration of
the minorities already existing on the German territory, i.e. the Danish,
Frisian and Sorbish minorities.
The only exception in this
connection is the article proposed by Brandenburg as an amendment to the Basic
Law, because this proposal is aimed at the protection of aliens settling on
German territory.
The principle of affirmative
action whereby minority interests are promoted by public authorities is not
expressly provided for in the Basic Law, but is recognised by the proposed
articles for the Basic Law and by the constitutions of Schleswig-Holstein (art. 5), Brandenburg (art. 25) and Sachsen
(art. 6). These provisions tend to improve the legal status of minorities and
prescribe an explicit public obligation to promote them in the fields of
language, religion and cultural identity and tradition.
Except for a limited federal
power concerning framework legislation on tertiary education (art. 75 (1a) of
the Basic Law), legislative and executive powers over the schools lies with the
constituent states pursuant to arts. 70 and 30 of the Basic Law. These have
been implemented by various state laws, including laws licencing schools.
The constitutions of those
states where minorities reside guarantee both protection and promotion of their
minorities. Education is regarded as a component factor of the linguistic and
cultural life of minorities (art. 5 of the constitution of Schleswig-Holstein,
art. 6 of the constitution of Sachsen). Art. 25 of the constitution of
Brandenburg refers expressly to an active promotion of private and public
schools, which are to be promoted with regard to the minority language and
culture.
Schooling laws specify the
recognition of independent schools which teach in minority languages and
provide for public allowances especially for them (ss. 58 and 60 of the Schools
Act of Schleswig-Holstein, s. 2 of the Schools Act of Sachsen and the draft
Schools Act of Brandenburg). In the Eastern states of Germany, three years
after reunification, most of the relevant laws have been drafted or are the
subject of legislative procedures.
The above mentioned
constitutions and existing and draft Schools Acts provide both for the study of
and for the education in the languages of the Danish, Sorbish or Frisian
minorities, not only in private schools, but also in public schools in the
areas of settlement of the minorities ( eg, s. 2 of the Schools Act of
Sachsen).
State constitutions refer to
an active promotion of minorities by affirmative action in cultural matters, an
obligation which is to be implemented by public authorities in the
administrative process. For example, art. 25 of the constitution of Brandenburg
prescribes bilingual topographical information in the settlement area of the
Sorbish minority.
Like s. 6 of the Federal
Electoral Law, s. 3 of the Electoral Law of Schleswig-Holstein and s. 7 (6) of
the Electoral Law of Sachsen provide obligatory exceptions from the 5 %
blocking clauses to parliament in favour of minorities. It only facilitates
eligibility, without guaranteeing a minimum membership in the respective
legislative body.
Art. 26 of the constitution
of Brandenburg provides for an active participation of the Sorbish minority in
the legislative process, as far as they are concerned.
Consultative and
participatory bodies in favour of minorities are part of the governments of
those constituent states concerned; in Schleswig-Holstein at state level there
exists a consultative body in favour of the Frisian minority as well as a state
agent for minority affairs; a body for participation even in legislative
affairs is outlined in art. 26 of the constitution of Brandenburg.
Italy
FEDERALISM AND PROTECTION OF
MINORITIES
Regional aspects in Italy
by
Professor Sergio BARTOLE,
Professor, University of Trieste
(Italy)
Italy is not a federal
State. It can be defined as a regional State
: the powers of the central government are counterbalanced by the powers
assigned to the regions (and to the local government). However, one cannot say that the Italian
Republic is an association of regions, because the regions did not take part in
the establishment of the Italian State.
Instead they were created by the State at a later stage of its history
through a devolution of functions to newly established regional authorities. Like the other institutions of the local
government (Comuni and Province), the regions are autonomous (not sovereign)
bodies which have legislative and administrative functions. These functions are different from the
sovereign powers of the State because they were developed on the basis of a
decision of the central authorities of the State.
Since the regional powers are
committed and not proper to the regions, these cannot be deprived of them
without a revision of the Constitution.
Therefore we can say that the autonomy of these bodies is founded on and
guaranteed by the Constitution.
Nevertheless the constitutional rules outline only the chief elements of
the regional organisation and functions, leaving to the State Parliament some
discretion as to their implementation.
This is a further difference between Regions and member States of a
federation, as the central State and the regions do not have equal
constitutional position and guarantees.
The regions have a
representative government. As a matter
of fact their legislative assemblies consist of elected counsellors. A region is a self-governing institution
because the people living in the territory under its rule can participate in
the government of their own affairs through the election of the regional
representative body as far as those affairs fall within the competence of the
region itself.
When the Constitutional
Assembly decided the creation of the regions in 1947, the regional reform was
not directly aimed at the protection of linguistic minorities. Linguistic minorities are not a main problem
of the Italian Society. They are
established only in some border regions of Italy : a German speaking group in
the province of Bolzano; a French speaking group in the Valley of Aosta; a
Slovenian speaking group in the eastern part of Friuli-Venezia Giulia
(especially in the provinces of Trieste and Gorizia) and the Ladinian speaking
group living in the provinces of Bolzano and Trento. Notwithstanding the limited dimension of the phenomena, the
Constitutional Assembly immediately realized that the regional institutions could
be helpful in dealing with the problem of the protection of minorities. Besides, the implementation of the De
Gasperi-Gruber Agreement required Italy to follow this way, and internal
political obligations bound Italian authorities to a similar arrangement in
Valle d'Aosta. The presence of the
German speaking group and of the French speaking group in the territories of
Trentino-Alto Adige and Valle d'Aosta suggested giving these two regions a
special constitutional status, and taking into account the protection of
linguistic minorities within the organization of these regions. As a matter of fact the provisions
concerning both these regions were adopted by constitutional statutes in 1948
(the statute concerning Trentino-Alto Adige was modified in 1971) and the space
left to national Parliament discretion for their implementation is much more
limited than it is when other regions are at stake.
Both the above-mentioned
constitutional statutes provide for the use of the languages of the minorities,
for the preservation and development of their cultural identities, for the
protection of their traditional social and economic distinctive features. In Trentino-Alto Adige some of these
provisions interest the Ladinian speaking group as well, but the main stage of
the protection of this minority is set up at a sub-regional level. Also the protection of the Slovenian
minority is implemented at a sub-regional level, especially at a municipal
level. Therefore we can say that the
general principles of the Italian legal system do not carry out the protection
of the linguistic minorities through the regional institutions only, but imply
the resort to all the institutions of the local government for that purpose
according to the dimension of the concerned minority. The Slovenian speaking group is a very
limited minority in relation to the dimension of the population of the
Friuli-Venezia Giulia region. This
region has a special constitutional status as well, but this status was adopted
because of the economic and social problems of a border region and the presence
of the Slovenian minority was not really determinant for that decision. In the constitutional statute concerning
Friuli-Venezia Guilia we do not find provisions which are similar to those
concerning the German and French minorities contained in the Trentino-Alto
Adige and the Valle d'Aosta statutes.
In conclusion, it can be said
that in the Italian legal system there is a link between the protection of the
minorities and the institutions of the local and regional self-government. But only the statutes concerning
Trentino-Alto Adige and Valle d'Aosta take care of the protection of the
minorities directly, while in other situations the implementation of the
protection of the minorities is shifted to a sub-regional level.
The purpose of the general
regional reform was the conversion of the centralised Italian State into a
State with large regional autonomies, but we believe to be pertinent to the
matter in hand only an analysis of certain legal provisions relating to the
regions, that is to say of those concerning the above-mentioned two special
regions. Therefore, the next pages will deal with Trentino-Alto Adige and Valle
d'Aosta, and some final remarks will be made as to the local self-government in
Friuli-Venezia Giulia with regard to the situation of the Slovenian minority.
The Trentino-Alto Adige
region is divided into two provinces, which are given a special constitutional
status and a peculiar autonomy that is very similar to the autonomy of the
regions. The splitting up into two
separate bodies is aimed at insuring the German speaking minority (which mainly
lives in the territory of the province of Bolzano) a territorial
self-government, and, therefore, at implementing its protection within
Trentino-Alto Adige, that is in a regional frame as required by the De
Gasperi-Gruber Agreement.
Both the Trentino-Alto Adige
region and the province of Bolzano have legislative powers (namely a primary
function, a concurrent function and a supplementary function) and
administrative powers. No Italian
region has judicial powers. The
distinction between the three legislative functions is based on the different
limits bounding the regional autonomy in the exercise of each of those
functions. The peculiar limits of the
primary functions are the general principles of the Italian system of law, the
international obligations of the Italian State, the guidelines of the economic
and social reforms and the national interests (with the enclosed interests in
the protection of linguistic minorities).
With regard to the concurrent function, there exists not only the
above-mentioned limits but the limit of the principles laid down by special
national statutes as well, and the supplementary function is bounded by the
limit of each of the national statutes for the implementation of which it has
to provide. The legislative and the administrative functions must be exerted
exclusively with regard to the regional or provincial territory and to the
fields (or matters) assigned to the region and to the province by their
constitutional statutes. As to these
fields, we can say they concern the organisation of the local institutions in
the case of the region, and the local economic, social and cultural activities
and the local environment and territorial planning in the case of the province.
The Province has a concurrent
legislative function in the field of public education. There are schools for the Italian speaking
and German speaking students where the teaching language is their own language
respectively. The administrative staff
of these schools is under the direction of the province while the teaching
staff has a state employee status. Both the province and the State concur in
the appointment of the heads of the administrative and teaching staff.
The most important governing
bodies of the province are the provincial legislative council, the executive
board and the President. The
legislative council is elected by the people who have been resident in the province
for four continuous years. The
provincial counsellors are members of the legislative council of the
Trentino-Alto Adige region together with the counsellors of the legislative
council of the Trento Province. In the
executive board and in the presidency of the legislative council, the presence
of representatives of both linguistic groups is required : special provisions
ensure their rotation in the main offices of both the bodies. Similar rules have to be applied in the
minor local self-government authorities.
In the Trentino-Alto Adige
region German is given the same constitutional status as Italian. In the
province of Bolzano, the German speaking people can use their language in the
relations with the public authorities.
The offices of the State Administration in the Bolzano province must
have German and Italian speaking employees according to the size of the
respective linguistic groups which is ascertained on the basis of personal
statements in the last census.
The powers of the
Trentino-Alto Adige Region and of the Bolzano Province, and the minority rights
of their inhabitants can be enforced by the constitutional court.
The provisions concerning the
representation of linguistic groups in the bodies of the Bolzano province and
of the local minor self-government, the staff of the State authorities and the
teaching in the nursery and primary schools are also applied with regard to the
Ladinian language in the territories where the Ladinian group is settled.
Valle d'Aosta as well is a
region with special autonomy. The
provisions concerning its functions and organization were adopted by a
constitutional statute.
The region has legislative
(primary and supplementary) functions in many fields of local relevance : their
list is in some way similar (but more restricted) to the list of the matters
assigned to the competence of Trentino-Alto Adige. In the statute there are no rules concerning the distribution and
the rotation of the offices between Italian and French speaking groups. However, French bears in this region the
same constitutional status as Italian. The State employees have to be born in
Valle d'Aosta or to know French. In the schools of the region the same time is
devoted to the teaching of French as to the teaching of Italian, and French is
also used as a teaching language.
In Italy, the statutes
concerning the election of the two chambers of Parliament do not have special
provisions on the representation of the recognised linguistic minorities which
however may and do have representatives within Parliament. Nevertheless, special rules allow the
political parties of the linguistic minorities settled in Valle d'Aosta, the
Province of Bolzano and in Friuli-Venezia Giulia to arrange electoral alliances
with other political parties in such a way that in any case one (or more) of
them can be represented in the European Parliament.
The local branches of the
state-owned radio and television company provide daily programs for the German
and French minorities.
The principles of the Italian
system of law imply, therefore, an implementation of the constitutional
protection of linguistic minorities which may vary with regard to the different
situations of linguistic minorities, according to the peculiarities of the
areas where they live. Moreover the
link between the regional and local self-governments and the protection of
minorities is not always similar.
On the above-mentioned basis,
the protection of the Slovenian minority in Friuli-Venezia Giulia can be
analyzed. In the provinces of Trieste and Gorizia, where this minority is
settled, there are schools for the Slovenian speaking children and the
Slovenian language is taught and used as teaching language. In the little
"comuni" of both provinces where the Slovenian group reaches a
important percentage of the population, the Slovenian language can be used in
the relations with the public authorities directly and in the meetings of the
self-government bodies. Otherwise, and
in the judicial procedures, a system of translation by interpreters is
provided. The Fruili-Venezia Giulia
region and the local self-government authorities are given powers to implement the policy of the protection of the
minority, especially through financial aids to the preservation and development
of its ethnic and cultural identity. The
Slovenian names of the localities are recognised and place name signs in the
minority language are installed. The
local branches of the state-owned radio and television company have special
daily programs for the Slovenian minority.
Spain
MINORITIES
AND
THE STATE
OF REGIONAL AUTONOMY
IN
SPAIN
by
Mr
Luis AGUIAR DE LUQUE
Director
of the Constitutional
Research
Centre, Madrid (Spain)
CONTENTS
0. Presentation
of the problem
1. General
aspects of "the State of regional autonomy"
2. Axiological
principles of "the State of regional autonomy"
2.1 The constitutional right to autonomy
2.2 The equality principle
a) in terms of individuals
b) in terms of the Autonomous Communities
2.3 The solidarity principle
3. The
components of "the State of regional autonomy"
3.1 Statutes of Autonomy
a) Legal status
b) Drafting Statutes of Autonomy
c) Content of Statutes of Autonomy
3.2 The competences of Autonomous Communities
3.3 Institutional organisation of Autonomous
Communities
3.4 Linguistic pluralism
4. Participation
of Autonomous Community authorities in State decision-making
5. The
Autonomous Community constitutional model in practice
0. Presentation
of the problem
One of the major challenges facing
the drafters of the Spanish Constitution in 1978 (and consequently one of the
most critical problems in the transition to democracy) was no doubt the matter
of the State's territorial organisation.
This problem, which merely
originated last century in the failure to achieve political, legal and economic
unity in multicultural Spain, was greatly exacerbated, especially in Catalonia
and the Basque Country, by the centralistic rigidity and intransigence of the
Franco era. Consequently, in late the 70s, restoring the democratic system was
seen as going hand-in-hand with solving this problem. The fact that immediately
after the first democratic elections (June 1977) the Government of Adolfo
Su?rez gave priority to restoring the regional autonomous institutions,
even before the process of formulating a constitution was properly under way,
shows the urgency of the problem and the link between autonomy and democracy.
The first outcome of this
process of reorganising the country launched by the 1978 authors of the
Constitution was described as the "Estado de las Autonomias"
(literally the "State of Autonomies" or "the system of
Autonomous Communities"), a model of political organisation broadly based
on two premises. The first premise is that Spain is a unitarian cultural,
historical and social entity ("the Spanish Nation, the common and
indivisible homeland of all Spaniards"), given concrete form by the
Spanish State, a legal and national organisation which is unitary in both
domestic and international terms. Concurrently, the autonomy of certain
entities is recognised as a principle for structuring the State termed the
"right to autonomy", a right which the nationalities and regions
enjoy to set up structures of self-government (Article 2). Needless to say this
right is meaningful only within the limits expressly defined in the
Constitution itself. For example, the first Additional Provision of the
Constitution stipulates that the general updating of the "Fuero"
system "shall be carried out ... within the framework of the
Constitution", an expression which the Constitutional Court
interpreted in judgments 123/84 of 18 December 1984 and 76/88 of 26 April 1988,
pointing out that the "Fuero" system "is not the result of an
agreement between territorial authorities which preserve rights predating and
outweighing the Constitution, but rather it is a rule which is issued by the
constituent authority and has general force within the scope of the
Constitution and extends also to prior circumstances in history.
However, it would be a
mistake to consider the "Estado de las Autonomias", as a model for
the territorial distribution of competence which was completed and perfected at
the same time as the Constitution. In fact the material delimitation of
regional autonomy established in the Constitution is relatively narrow, being
confined to setting out procedures for acceding to autonomy and leaving
extensive scope for manoeuvre around the governing principle. This is why
Professor Cruz Villal?n, in a statement very frequently quoted by Spanish
experts, affirmed that the Spanish Constitution launched a process of
deconstitutionalising the form of the State,
and also why Professor Rubio Llorente has said that Title VIII of the
Constitution (concerning the territorial organisation of the State) is the
product of history, and not a system.
The purpose of this MEMORANDUM
is to briefly analyse the most significant aspects of this complex (and largely
dynamic) phenomenon which we have defined as "Spanish system of Autonomous
Communities", in so far as it may be a constitutional model for the study
of cultural minorities. However, this paper will not go into the following
subjects: defining the concept of "minority", its possible
applications to the Spanish reality, the applicability of the concept to
historic nationalities, the status of minorities in Spanish law and the
internal contradictions of such status, since the historical demand for the
principle of equality before the law contradicts "the right to be
different", the basic nucleus of the affirmation of what are known as the
rights of minorities.
In any case we should stress
that the Spanish Constitution contains an exhaustive declaration of the
fundamental rights and public freedoms (Articles 10 to 52), as well as the
principle of equality before the law stated in general terms in Article 14 of
the Constitution, that the combination of the two aforementioned ideas give the
individual a status based on the "dignity of the person", proclaimed
by Article 10.1 as the "foundation of the political order and social
peace" and that we can consequently consider that the rights of minorities
are sufficiently protected by the Spanish constitutional system despite the
absence of a specific concrete provision on the subject in the Constitution
itself.
1. General
aspects of "the State of regional autonomy"
"The State system of
Autonomous Communities", the result of a hard-won agreement acceptable
both by Catalan and Basque nationalists
and upholders of the unitarian conception of the State, is not, as one might
think, a closed model arising out of a pre-agreed conception delimited
according to plan. Article 2 of the Constitution, which sets forth the premises
forming the basis of the model (see above) and Title VIII, which further develops
them, are rather an "ad hoc" response drawn from a wide variety of
sources (the 1931 Spanish Constitution, the Italian regional model, the
specific dynamics of political life during the constitution drafting process
with a number of "pre-autonomies" already in operation, etc) caused
by hesitation on the part of the authors.
This is borne out by the wide varieties of texts used throughout the drafting
process, which initially began with uniform, general territorial
decentralisation (preliminary draft Constitution of January 1978) and ended, as
far as possibilities for self-government are concerned, with a system of
differentiated autonomy which ultimately benefited Catalonia, the Basque
Country and Galicia.
As we have mentioned, the end
result was an intermediate formula between the Federal State, formally with a
greater degree of autonomy for the federated entities, which have a homogeneous
and constitutionally guaranteed basic position) and the centralised State, with
at most a mere administrative decentralisation. The aim of the Spanish system
of Autonomous Communities is to solve
the problems both of the traditional demands for political autonomy from
regions with a more obviously autonomous destiny (particularly Catalonia and
the Basque Country) and of achieving functional decentralisation to encourage
better relations between government and governed and greater efficiency in
State action, thus making the whole new institutional system more democratic.
In order to achieve such
objectives and take account of the two dimensions to which they give rise, the
Constitution lays down a series of elements and rules which should be properly
defined from the outset.
- The
right to autonomy is generally applicable throughout the country and is
implemented by means of a process of setting up Autonomous Communities (ACs),
based on substantial participation by the populations concerned; in other words
any region of the country can potentially declare itself to be an AC or else
join one of the existing Communities.
- Two
procedures have been provided for setting up ACs. The first is general in
nature and basically takes account of the will of the entities that make up the
traditional local system (municipalities and provinces). The other is
theoretically more complex: it requires formal evidence of a more deep-seated
autonomous destiny and the holding of a referendum for the population involved.
This latter procedure was considerably simplified for Catalonia, Galicia and
the Basque Country.
- At
the same time two levels of autonomy are established, in that ACs which achieve
autonomy through the latter of the two procedures (in practice these are
Catalonia, the Basque Country, Galicia and Andalusia) can exercise legislative
and executive powers in important fields and thus accede to high levels of
autonomy satisfying (or at least attempting to satisfy) the more conspicuously
nationalistic sectors of Catalonia and the Basque Country; the other level, the
so-called general or common system, apparently did not allow the Autonomous
Communities to exercise legislative powers for an initial 5-year transition
period (the Constitution's ambiguity on this point prompted Professor
Tom?s Ram?n Fern?ndez to say, in a rather hasty, premature
interpretation, that this second type of AC could on no account exercise
legislative powers; subsequent practice has not confined this interpretation),
and the areas in which powers could be exercised were qualitatively and
quantitatively inferior; nevertheless, once the 5-year period has elapsed these
latter communities can increase their powers to levels similar to those enjoyed
by the others.
This
treatment, which in theory is standard and uniform but in practice comprises
two different systems and is geared to solving two very different types of
problem (J. Pradera speaks of the "political" problem of the Basque
Country and Catalonia and the "administrative" problem of the need to
decentralise), is not
without certain practical difficulties, and not only because of certain
ambiguities in Title VIII of the Constitution. Above and beyond its openness,
the territorial organisation established by the 1978 Constitution is
susceptible of two different interpretations, one being more federalistic in
that it advocates a uniform level of competences for all ACs (especially now
that the 5-year transition period has elapsed), and the other more asymmetrical
in that it recommends transferring the de facto differences in the desired levels of autonomy in the various
nationalities and regions into the system for determining the Autonomous
Communities' levels of autonomy and competences. Moreover, we must take account
of the difficulties of rationalising administrative activities in a two-tier
structure. However, subject to the further explanations set out below, it would
be unfair to deny that the authors of the Constitution created an operational
framework capable of addressing the problem of Spanish minorities in the
context of the political situation obtaining in the late 70s.
2. Axiological
principles of "the State of regional autonomy"
2.1 The constitutional right to autonomy
The
word "autonomy" recurs several times in the Spanish Constitution with
reference to situations presupposing the possibility of exercising certain
specific powers of self-regulation, which obviously all widely differ in scope.
For instance, just as the right of the nationalities to autonomy is enshrined
in the aforementioned Article 2, Article 27.10 recognises the autonomy of the universities,
Article 72.1 starts by declaring that the Parliamentary Chambers shall
establish their own rules of procedure and then goes on to grant them autonomy
to approve their own budget, and Article 140 secures the autonomy of the
municipalities. Countless further examples are to be found in ordinary
legislation (including Article 6 of the Organic Law on the Defensor del Pueblo (Ombudsman),
Article 2 of the Organic Statute on the State Counsel's Office, etc). We must
base our analysis of the extent of autonomy in the nationalities and regions on
the common idea underlying all these expressions, which basically boils down to
the concept of autonomy with self-regulatory powers,
but which also necessitates criteria differentiating the autonomy of the territorial
entities set out in Article 2 from all the other aforementioned types of
autonomy. This difference no doubt derives from the importance of the fields in
which the autonomy faculty is implemented, but even more so from the nature of
the powers which can be exercised in this way and which, in the case of ACs,
include powers relating to the citizen's legal situation and powers of
innovation, in short the production of legally binding norms.
The
autonomy enshrined in Article 2 for the benefit of the nationalities and
regions is consequently a right granted to certain well-defined communities
("bordering provinces with common historical, cultural and economic
characteristics, island territories and provinces with a historical regional
status", Article 143.1), which might be incorporated into the category of
institutional safeguards which C. Schmitt used to define certain principles set
out in the Weimar Constitution,
but, if we go further, the right to autonomy is a structural principle of the
State as a whole, or in the words of S?nchez Agesta "a general
organisational principle"
which adjusts the nature of the State established in 1978. The Constitutional
Court itself acknowledged when it stated that "ACs ... enjoy qualitatively
greater autonomy than the administrative autonomy granted to local entities, as
they also have legislative and governmental powers which give a political
character to their autonomy" (judgment 25/1981 of 14 July 1981).
However,
we should also point out that this right to political autonomy enshrined in the
Constitution and the self-government which arise out of its implementation can
in no case be approximated to the right of disposal which the State possesses per se. "Autonomy is not
sovereignty", in the words of the Constitutional Court in judgment 4/1981
of 2 February 1981, given that it is a power bestowed by the Constitution and
therefore not an inherent one, in other words restricted to a field of
competence limited by the Constitution and which actually, from the legal point
of view, has an impassable limit, the unity of the State considered as a
principle structuring the new State through the oft-quoted Article 2: "The
Constitution is based on the indissoluble unity of the Spanish nation".
2.2 The equality principle
Equality
is a fundamental principle of the legal order which is set forth several times
in the Spanish Constitution with various adaptations of content: for example,
in Article 1 it is set out in a general manner as one of the higher values of
the legal order, Article 9.2 presents it as one of the criterion on which the
public authorities should base their action, in Article 14 equality is
mentioned from the angle of equality before the law, and lastly it also appears
as a criteria determining the substance of several rules relating to the
fundamental rights (Arts. 23, 31 and 32, i.a.). However, its extrapolation to
the field of autonomy, where it is shown in two different lights, namely as
regards individuals and in respect of relations between ACs, does pose
considerable problems. Let us consider these two dimensions separately.
a) At individual level, Article 139.1
states that "all Spaniards have the same rights and obligations in any
part of the territory of the State", which, according to one approach,
might be interpreted as a mere extension to the field of autonomy of the
principle of equality before the law set out in Article 14. However, the
Constitutional Court was quick to grasp that the said Article 139.1 involved
much deeper complications than those deriving from the other Article in
question which appears under Title I
and which is indubitably one of the most complex articles from the angle of
constitutional interpretation. The problems stemming from the proclamation of
the principle of equality as a right
are here compounded by the problems arising out of the legislative pluralism of
regional autonomy as practised in Spain, so that an excessively rigid
interpretation of Article 139.1 would in practice render the legislative powers
of the ACs meaningless; after all, as the Constitutional Court stated in its
judgment 37/1981 of 16 November 1981, "it is obvious that this principle
can in no case be interpreted as conveying a strict, monolithic uniformity in
the legal order, to the effect that the same rights and obligations must be
recognised under the same circumstances in any part of the national
territory". Nevertheless, Professor I. de Otto later remarked
that the problem subsisted, albeit in mitigated form, despite the
aforementioned judgment, because the rejection of "monolithic
uniformity" does not block the way to a "certain" uniformity,
which would in any case reduce the scope of the ACs' competences; according to
Professor de Otto, the optimum interpretation would probably be that the declaration
of equality set out in Article 139 does not prevent the various legal systems
of the Autonomous Communities from regulating matters in different ways and
establishing a legal position for Spaniards which varies in accordance with the
territorial area but prohibits differentiated treatment within each of the
regional legal systems. This does not mean that the individual aspect of the
equality principle is meaningless in the autonomy framework, with the emergence
of legal positions which vary radically according to the AC in question, a
hypothesis which the Constitutional Court has explicitly ruled out (judgment
37/1987 of 26 March 1987). However but the safeguard against such an
eventuality is set forth in Article 149.1.1 which reserves exclusive jurisdiction
for the State in the "regulation of the basic conditions guaranteeing the
equality of all Spaniards in the exercise of their rights and in the fulfilment
of their constitutional duties", not in the aforementioned Article 139.1.
b) Secondly, even though it is not
included in the text of the Constitution, a second strand of the equality
principle which directly concerns ACs is implicit in the Constitution, and
derives from both the general principles (particularly the recognition of the
right to autonomy in Article 2) and Article 138.2 ("The differences
between the Statutes of the various Autonomous Communities may in no case imply
economic or social privileges"). The problem stems from the existence of
two different means of acceding to autonomy, which presupposes the creation of
two types of ACs with very different levels of jurisdiction, and it is also
very much in line with the direction implicitly taken by the Constitution.
Nevertheless it is true that in the text of the Constitution as finally
approved, and as highlighted by the Committee of Experts
in 1981, this distinction was based solely on political caution and attempted
to tackle Spanish regional heterogeneity by providing facilities for
transitional stages, though these would in no case be given sufficient legal
force to depart from the aforementioned equality principle. As the Committee of
Experts pointed out in its report, "we must insist that the Constitution
does not impose two categories of ACs; the only stipulation it actually makes,
and with considerable prudence, is a transition period aimed at giving most of the territories the specific powers
of the single model". The constitutional practice in the ensuing years
(1982/1993) has confirmed that this interpretation of the constitutional model
for the territorial organisation of power prevailed, and currently, with the
formulation of the Organic Law on Transfers which standardises the upper limits
on competences (L.O. 9/1992 of 23 September 1992) and the subsequent transfer
process, the transitional period of inequality is over (at least in theory).
2.3 The solidarity principle
Although
the Constitution proclaims equality (see previous paragraph), it is obvious
that there are also de facto situations characterised by profound economic and
social inequalities between the different nationalities and regions. This being
the case, the right to autonomy is accompanied by a duty to show mutual
solidarity, which is described in Article 2 of the Spanish Constitution as one of
the elements defining the Spanish State and further developed in Article 138,
which entrusts the State with the defence of the material implementation of
this principle.
If
solidarity is to be effective, very specific instruments must be implemented
requiring the State to construct the bases for its existence. These instruments
include the "interterritorial clearing fund" (Article 158.2 of the
Spanish Constitution), which is a specific part of the State budget earmarked
for investment expenditure, and such capital is distributed in accordance with
the criteria established by the law regulating it (Law no. 29/1990 of 26
December 1990).
3. The
components of "the State of regional autonomy"
3.1 Statutes of Autonomy
a) Legal nature
According
to Article 147.1 of the Spanish Constitution, Statutes of Autonomy are the
basic institutional rules governing the ACs and are a vital factor in their
creation and organisation, in that when a regional entity adopts such Statutes
it automatically accedes to AC status. As legal theorists have affirmed,
although the Statutes can in no case be considered as the Constitution of a
federate state on the grounds of its origin (since the concept of autonomy as
hitherto set forth is very different from that of sovereignty), nevertheless
from the functional angle there are great similarities, because it is the
Autonomous Community's supreme norm, from both the logical and the prescriptive
angle, which determines, inter alia, the body and procedure through which the
Community's legislative power is exercised, the subjects covered by its
activities and the extent of the Autonomous Community's other powers.
From
the very outset a multitude of political and doctrinal positions have attempted
to define the legal character or the nature of Statutes of Autonomy. These
statements can be broken down into two basic positions. Some consider that the
Statute of Autonomy is a norm which is part of the State's legal order since
Article 147.1 stipulates that "the State shall recognise them and protect
them as an integral part of its legal order", with, moreover, the force of
an organic law (Article 81: "Organic laws are those ... approved by the
Statutes of Autonomy"); others consider Statutes of Autonomy as norms with
a unique, contracted character which expresses not the legislative will of the
State but an agreement reached between the central legislative power and the
populations involved, in a sort of "constitutional contract", to the
extent that the draft is prepared by a specific Assembly representing the
affected provinces (Article 146), or, if necessary, the text is ratified by
referendum (Article 151) and its reform "shall be in accordance with the
procedure established in them" (Article 147.3). Experts are nowadays
unanimous that Statutes of Autonomy are State norms with all the consequent
legal effects, though this does not prevent them having a very special position
since firstly, for the aforementioned reasons, they have a special passive
force vis-?-vis other State laws and a certain hierarchical superiority
over the laws of the Autonomous Communities of which they are the foundations,
and secondly they have a delimited physical framework which strengthens their
special force and explains the relationships between the different Statutes of
Autonomy, which are by no means peaceful.
b) Drafting Statutes of Autonomy
As
already mentioned, the Spanish Constitution lays down widely differing
procedures for drafting Statutes of Autonomy which give rise to clearly
differing levels of autonomy. Nevertheless, the common factor in all these
procedures is the prior initiative phase, a simple expression of the desire for
autonomy unbound by any statutory text, which can also take on a variety of
forms depending on the level of autonomy aspired to and which consists (today
it is fair to say "consisted", now that the map of Autonomous
Communities is completed) in the primary decision to establish the constitution
of the Autonomous Community. There are three basic procedures for the said
initiative: an initiative under-taken under ordinary procedure by the
Provincial Deputations and two thirds of the municipalities involved; an
initiative undertaken by the Cortes by means of an Organic Law which can replace the
aforementioned expression of desire for autonomy for reasons of national
interest; and lastly, an initiative taken under the so-called special procedure
by the aforementioned local bodies, though with greater majorities (three
quarters of the municipalities) and ratification by referendum (the Basque
Country, Catalonia and Galicia being exempted from the latter requirement under
the Constitution), resulting in higher levels of autonomy.
When
the initiative phase is completed, the procedure for drafting the Statute stricto sensu varies between
the first two possibilities and the third one. The latter method, used by the
aforementioned regions (Basque Country, Catalonia and Galicia), and later also
followed by Andalusia on completion of an extremely complicated process,
requires the Congress's Parliamentary Commission on Constitutional Affairs to
monitor the progress of the draft (prepared by an Assembly made up of regional
parliamentarians and representatives of the local authorities), ratification by
regional referendum and ratification by the Cortes. The ordinary procedure followed by the Asturias,
Cantabria, La Rioja, Murcia, Valencia, Aragon, Castilla-La Mancha, the Canary
Islands, Navarra (with some distinctive features), Estremadura, the Balearic
Islands, Madrid and Castilla-L?on more simply requires parliamentary
follow up to the draft prepared by the same methods as in the previous
procedure, whereafter it is merely approved as an Organic Law.
c) Content of Statutes of Autonomy
Statutes
of Autonomy usually begin with general considerations of either a programmatic
or structural nature (territorial framework of the Community, use of languages
if appropriate, anthem and other symbols of identity, etc) and go on to dead
with regulations on the main institutions of the Autonomous Communities and
their mutual relations, the powers taken on by the Community, which are defined
by subject and also the type of public action (legislative or executive); these
themes (institutions and powers) make up the core of the Statute. Frequently,
the Statute also specifies the Autonomous Community's financial foundations,
and concludes with a description of the procedure for amending the Statute.
Moreover,
this model content coincides with all the subjects which Article 147.2 of the
Constitution reserves for the Statute of Autonomy: "name of the
Community", "the delimitation of its territory", "the name,
organisation and seat of its own autonomous institutions" and "the
competences assumed within the framework of the Constitution".
Nevertheless, some disputes have had to be settled by the Constitutional Court,
which has found that the content of Article 147.2 refers solely to a
"reserva estatutaria relativa" (a field which is in principle
governed solely by the Statute of Autonomy), which may very well be
complemented by the State laws provided for in Article 150 in connection with
powers (Article 147.2.d) and also by regional laws, where the organisation and
seat of the specific institutions are concerned (Article 147.2.c). The
hypotheses set out in sub-paragraphs a) and b) of the same Article regarding
the name of the Community and its territorial delimitation are somewhat
different because, as concrete concepts, they must be considered as subjects
which have to be regulated exclusively by the Statute (judgment 89/1984 of 29
September 1984).
3.2 The competences of Autonomous Communities
The
formula used in the Spanish legal system for apportioning competences does not
tally with the traditional criteria of most systems which have opted for the
federal or regional version of political decentralisation: these are based on a
single list of competences attributed to either the State or the regional
entities, leaving all remaining competences to the other authority (this is the
so-called "residual clause"). On the contrary, the starting point in
the Spanish Constitution is a heterogeneous, not a systematic, criterion which
has left a great deal of scope for complementary legislation. The Constitution
grants a great deal of freedom to the Statutes of Autonomy, within the limits
of the Constitution, to acquire the powers which are deemed necessary to
achieve the desired degree of autonomy. This shows that the Statute of Autonomy
is the prime law-making corpus when it comes to determining the competences of
a given Autonomous Community. Nevertheless, the distribution of competences can
exceptionally be modified by the central authorities through extraordinary
mechanisms such as those set out in Article 150 of the Spanish Constitution
(organic laws on delegation or transfer of competences).
Formally,
the Constitution devotes two articles to this question: Article 148, which
enumerates the matters falling under the jurisdiction of all Autonomous
Communities, and Article 149, which enumerates the competences of the State,
areas in which the Communities have no jurisdiction. In addition to these two
lists, the central authority adopts principles of prevalence or supremacy of
central power (in cases of conflict of concurring competence, State law
prevails), of the complementarity of state laws, and also the residual clause,
whereby competence in respect of matters not attributed to the ACs by their
respective statutes fall to the State (Article 149.3).
However,
closer inspection of the Constitution enables us to qualify this initial
outline . Firstly, we must point out that Article 148 only takes in the form of
a guideline which in no case obliges the Communities to remain within the
strict framework of their competences. Secondly, the Constitution assigned two
very practical and different functions to Article 149.1: firstly, Article 149.1
establishes the matters which fall under the exclusive jurisdiction of the
State, and consequently the State is not authorised to transfer them to the
autonomous bodies (apart from selective use of the provisions of Article 150 of
the Spanish Constitution); but secondly, Article 149.1 provides possible new
frameworks of competence for ACs with a higher level of autonomy or special
autonomy in matters not reserved to the State, by means of a number of rather
vague formulae which have on several occasions had to be interpreted by the
Constitutional Court. In this connection we must bear in mind that the State
has exclusive competence in some matters, in terms of both legislation and enforcement
(international relations, defence, nationality, immigration, emigration, aliens
and the Administration of Justice), that in other cases it only has legislative
powers (including the power to issue standard-setting regulations, cf.
Constitutional Court judgment 35/82), which empowers ACs to take responsibility
for enforcing and organising services, and lastly that in yet other cases the
State has only the competence to lay down principles - basic legislation
- while the ACs are empowered to legislate and further develop and implement
these basic principles - constituting autonomous legislation.
3.3 The institutional organisation of the
Autonomous Communities
The
question of institutional organisation is one which, together with that of
competences, has revealed the largest number of lacunae and ambiguities in
Title VIII, as the Spanish Constitution refers solely to the organisation of
the privileged ACs, stating that it shall be based "on a Legislative
Assembly elected by universal suffrage in accordance with a system of
proportional representation which assures, moreover, the representation of the
various areas of the territory; a Government Council with executive and
administrative functions and a President elected by the Assembly from among its
members and appointed by the King..." (Article 152.1 of the Spanish
Constitution). The other ACs found no explicit organisational schema in the
Constitution, which initially had very far-reaching effects since it seemed to
imply that legislative assemblies were exclusively reserved for ACs which were
from the outset authorised to attain the maximum level of autonomy allowed by
the Spanish Constitution. However, it very quickly became obvious that it was
inconceivable to refuse the so-called "second-rank" Autonomous
Communities the right to form a Parliament because autonomy is based precisely
on political decentralisation, in other words the right of an entity to pass
its own laws. This fact was confirmed by the report of the Committee of Experts
on Autonomy, the autonomy agreements and the Constitutional Court. It is
therefore not surprising that when the institutional model laid down in Article
143 of the Constitution was implemented throughout the country, the result was
that the corresponding Statutes were approved according to the procedure laid
down in Article 144. This maximalist tendency enabled all ACs to closely mimic
the State by adopting an institutional micro-model similar to the national
institutions, a model of micro-parliamentarianism with conventional
institutional powers (Parliament elected by universal suffrage, Government
answerable to the Assembly, etc), complemented with the special features of the
Spanish parliamentary system (constructive motion of censure - i.e motions of
censure must be accompanied by proposals for alternatives).
Consequently,
all the Autonomous Communities today have a single-chamber representative
parliamentary institution which is elected by direct universal suffrage on the
basis of a proportional system, has the specific rights of a parliament apart
from parliamentary immunity, and is responsible for the legislative function.
This Assembly, as the regional expression of democratic legitimacy, elects the
President of the Autonomous Community, who is the supreme representative of the
Community and directs the Government Council, an organ which exercises the
executive and administrative functions within the Community; this means that
the Government Council, headed by the President, is politically answerable to
the Assembly; the particular right of dissolution appertains only to 4
executives (in Catalonia, the Basque Country, Galicia and Andalusia).
The Judiciary, on the other hand, is considered as appertaining to the central
government despite the different territorial constituencies.
3.4 Linguistic pluralism
One
of the most important aspects of Spain's cultural wealth is linguistic variety,
the result of the coexistence of Spanish and the various regional languages, a subject
which is also relevant to any discussion of the rights of minorities. Article 3
of the Spanish Constitution further develops a principle set forth in the
Preamble ("The Spanish Nation proclaims its will to ... protect all
Spaniards and peoples of Spain in the exercise of human rights, their cultures
and traditions, languages and institutions") and addresses this question
by declaring that Spanish is the official language; this implies the right to
use it and the duty to know it, and also the official status of "all the
other languages of Spain ... in the respective autonomous communities, in
accordance with their Statutes". Lastly, the third sub-paragraph of this
provision emphasises the cultural asset of linguistic variety and consequently
the implicit requirement on public authorities to respect and protect it.
This
is not the only article of the Constitution which proclaims the linguistic
variety of Spanish society: the matter is also dealt with in Article 20.3
governing the State-run mass media and Article 148.1.17 on the competences of
the Autonomous Communities. In any case, it would be worth commenting on the
first of these articles, which in fact lays down the general, basic regulations
on linguistic pluralism in the Constitution.
Firstly,
the official status of the Spanish language, beyond the general right to use
it, particularly as a means of communication between the citizen and the public
authorities, also implies the equally general duty to know it, which
establishes it as the common means of communication between all Spaniards,
established throughout Spanish society. On the other hand the "other
languages of Spain" have an official status subordinate to the
declarations made thereupon by the various Statutes of Autonomy and limited to the
territories identified by the territorial scope of the corresponding Autonomous
Community. In any case, a declaration of "joint official status"
implies that every citizen is entitled to express himself in either of the
Autonomous Community's official languages (Spanish or regional language) in his
contacts with public authorities having powers limited to by the Autonomous
Community in question.
Several
Statutes of Autonomy have availed themselves of Article 3 of the Constitution
to proclaim the joint official status of more than one language in their
respective Autonomous Communities (principally Catalonia, Basque Country,
Galicia, Valencia and the Balearic Islands), and a number of legally binding
regulations issued by both the State and the Basque, Catalan, Valencian or
Balearic Autonomous Communities have developed specific mechanisms to give
substance to the defence and promotion of the cultural asset of linguistic
pluralism.
From
the perspective of the State, the main regulations on this issue have been
directed towards arbitrating on the means of linguistic communication between
the citizen and the public authorities, which in principle corresponds to the
idea of the official status of Spanish and the "co-officiality" of
regional languages. In this context we might particularly stress Section 36 of
Law No. 30/92 on the Legal System governing Public Departments, in connection
with relations between the citizen and Government departments,
Section 231 of Organic Law 6/85 on the Judiciary
and Section 540 of the Law on Criminal Procedure in connection with relations
between the citizen and the judicial system.
Legal
rules issued under Autonomous Community legislation may expand the
communication function of such Communities languages by using the implicit
argument that their use must be protected and promoted on account of the social
predominance of Spanish within the ACs, a hegemony and domination which are in
fact often more rhetorical than real. The euphemistic "Law on Linguistic
Normalisation" laid down regulations on the subject in Catalonia, the
Basque Country and Galicia. At one stage, appeals were lodged against these
regulations with the Supreme Court, which subsequently declared them consistent
with the Constitution.
In
the light of these principles it is fair to say that sound legal guidelines
have been laid down for the language problem in Spain, though in practice this
does not prevent occasional conflicts. In fact this is not at all surprising in
view of the multiple ramifications and impacts of the language theme, from the
regulations on the right to education and the role reserved for indigenous
language teaching in the curricula, through to the conditions stipulated for
competitive examinations for civil service posts, including knowledge of the
indigenous regional language: all these regulations show the degree of
sensitivity in language issues. Nonetheless, case law is beginning to create
extensive doctrine and the constitutional principles are becoming sufficiently
specific, which allows us to conclude that the degree of protection afforded to
linguistic minorities is satisfactory.
4. Participation
of Autonomous Community authorities in State decision-making
The territorial division of
the State into ACs must necessarily be integrated into the organisation of the
State, for reasons not only of efficient administration but also of the
desirability of reinforcing the legitimacy of the central structures and
offsetting the centrifugal tendencies peculiar to decentralised structures.
The Constitution defines the
Senate as "the chamber of territorial representation" (Article 69),
an institution formally conceived as an instrument facilitating consultation
and the participation of the ACs in the State structure. Nevertheless, the
two-chamber structure of the Spanish Parliament is perhaps the aspect of the
Constitution which, from the technical angle, has prompted the greatest
criticism, most of which has centred on the vagueness of the official
definition of the second chamber as quoted above.
The Senate has a twofold
composition: on the one hand 200 senators are elected by direct universal
suffrage by means of elections held in the provincial constituencies (commonly known
as provincial senators), and, on the other the ACs (or the Legislative
Assemblies of the ACS, to be more exact) each appoint a "basic"
senator and an additional senator per million inhabitants of their respective
territories, which in practice means some fifty senators, usually referred to
as "senators of the Autonomous Communities". The numerical difference
alone shows the inadequacy of this form of Autonomous Community participation
in the central institutions.
A second constitutional
instrument aimed at enabling the Autonomous Community authorities to
participate in central decision-making is the ACs' right to initiate
legislation and constitutional reform in the central Parliament.
Nevertheless, it is within
the Government and the day-to-day administration that the requirements on
proper organisation have necessitated closer co-operation and participation by
Autonomous Community authorities in the Central Government's decision-making
process. Section 4.1 of Law No. 12/1983 on the Autonomy Process set up the
"Sectoral conferences of councillors from the ACs and the Minister(s)
concerned, with a view to exchanging opinions and jointly considering the
problems facing each sector and the action envisaged to tackle and solve
them". Following this example, a great many joint bodies have been set up
in the last ten years, by means of legislation and also under bilateral
agreements facilitating the participation of Autonomous Community governments
in State decision-making.
5. The
Autonomous Community constitutional model in practice
As stated above, the
definitive form of the Spanish Constitution stipulates that the territorial
organisation of power can have "differentiated systems of autonomy, which
in the final analysis enhanced the possibilities of autonomy in Catalonia, the
Basque Country and Galicia". However, realities have forced us to
interpret this stipulation very differently.
Once, or even before, the
Constitution was adopted (prejudging to a large extent the final text),
the Statutes of the Basque Country and Catalonia were drawn up. Far more
laborious negotiations impeded progress in the drafting of the Galician Statute
of Autonomy, which was adopted and promulgated in December 1980. The three
aforementioned ACs have attained levels of autonomy comparable to those of
Federate States within a Federal State.
However, the other areas of
the country were expeditious in their drive to become ACs, with an eye to a
physically more limited set of competences but nevertheless a genuine
legislative power and a specific institutional organisation, ie an autonomous
Parliament elected by direct universal suffrage. On the other hand, some of
these regions are also beginning a long, complex process of achieving levels of
autonomy similar to those of the Basque Country, Catalonia and Galicia. The
strength of the political parties involved and their negotiations between them
have enabled some of these regions (Valencia and the Canaries) to halt the
process in exchange for certain concessions. This has not been the case in
Andalusia, which, after a hurry of events which we need not go into in this
memorandum, acceded to levels of autonomy similar to those of the three initial
ACs. Cracks are appearing in the model. The initial objective, which was never
explicitly declared but was nevertheless implicit in the intentions of the
drafters, to give a large measure of autonomy to Catalonia, the Basque Country
and, by analogy, to Galicia, while establishing basically administrative
decentralisation for the rest, has been replaced by a territorial organisation
of power which is different, but only transitionally, as virtually all the ACs
set up by virtue of Article 143 of the Constitution have signalled their wish
to increase their powers after the five-year period laid down in Article 148.2.
Adolfo Su?rez, the then Prime Minister, gave a clear account of the
situation in his speech during a political debate in the Congress of Deputies,
starting on 20 May 1980 (it is important to note that three months had elapsed,
since the Andalusian referendum on autonomy, the veritable turning point in the
Spanish autonomy system, according to P?rez Royo):
"from this angle it would seem difficult to deny that the distinction,
which has been completely exaggerated for emotional reasons, between the two
channels for exercising a single initiative for acceding to autonomy, has
lost virtually all its initial meaning" (my underlining). The
Committee of Experts meeting from April 1981 onwards used strict technical
considerations to defend the new interpretation of the Constitution: "it
is vital to stress that the Constitution does not in fact provide for two
different types of Autonomous Community; the only stipulation which it very
cautiously makes is the transitional period" (Report of the Committee of
Experts on Autonomy, 1981). The "State of the Autonomies" established
by the Constitution is thus replaced by a model for the territorial
organisation of power which is very close to that of the Federal State
(considered solely from a practical point of view as safeguarding general
political autonomy for all nationalities and regions tending towards
medium-term standardisation of spheres of competence).
Nevertheless, we cannot
overlook the fact that this legal equality in powers, which might be the final
stage in the federalisation of the State, very obviously has an element of
political distortion, the undeniable, overriding aspiration towards national
identity in Catalonia and the Basque Country, which takes concrete form in the
so-called "hecho diferencial",
a de facto hypothesis
which is inherently difficult to express in legal terms and transform into
specific powers, apart from those deriving from the linguistic specificities of
both Communities, a circumstance which can also be extended to Galicia, the
third of the four ACs based on Article 153 of the Spanish Constitution.
In short, it would be fair to
say that the "State of the Autonomies" is currently facing two
problems relating to constitutional development: how to provide a practical vision
of the increase in the competences of the Autonomous Communities conceived in
the light of Article 143 of the Constitution, an increase which is dealt with
by Organic Law No. 9/1992 and is currently envisaged by the various Statutes of
Autonomy, and secondly, the search for formulae for fleshing out and organising
the aforementioned concept of "hecho diferencial".
Efforts to solve the former
problem, that of the increase in the powers of ACs based on Article 143, are
proceeding satisfactorily: Hugs would appear to be settling, not quite
effortlessly, into a rather convoluted constitutional procedure which might
nonetheless eventually prove effective: cf. the Autonomy Agreements signed by
the Socialist Party and the People's Party, the subsequent drafting of an
Organic Law on transfers, the current reform of the various Statutes of
Autonomy and, lastly, the current negotiations in the Technical Committees on
Transfers concerning the transfer of a multitude of services, the results of
which will be enshrine in the corresponding Decrees on transfers.
The second problem to the
extent that it lacks a specific constitutional basis, it could make its
presence felt in legislation or in other types of political activity, goes
beyond the subject of this memorandum.
Switzerland
FEDERALISM AND PROTECTION OF
MINORITIES IN SWITZERLAND
by
Mr Giorgio MALINVERNI
Professor, Law Faculty,
University of Geneva (Switzerland)
CONTENTS
I. PROTECTION
OF MINORITIES THROUGH STATE INSTITUTIONS
A. Representation of minorities within
the federal institutions
1. Federal Parliament
2. Federal Government
3. Federal Court
B. Cantonal self-government
1. Constitutional Law
a. The cantonal institutions
i. The cantonal electorate
ii. The cantonal parliament
iii. The cantonal government
iv. The cantonal courts
b.
Local structures
c. Other territorial authorities
2. Political
rights
3. Taxation
law
4. Federal
law restrictions on cantonal self-government
II. PROTECTION
OF MINORITIES THROUGH THE MAKING AND APPLICATION OF LAW
A. Law-making
1. Participation
by the cantons in the federal process of decision
2. Apportionment of responsibilities
between the confederation and cantons; legislative autonomy of the cantons
a. Principles
b. Scope of cantonal powers
3. Inter-cantonal
agreements
B. Application of the law
III. FEDERALISM AND ACHIEVEMENTS OF AUTONOMY
IV. FEDERALISM, MINORITIES AND BASIC RIGHTS
A. Protection of linguistic minorities
1. The
territoriality principle
2. Official
languages
B. Political rights
CONCLUSION
FOREWORD
Switzerland is widely known
as a composite state where several minorities have long co-existed. Moreover, each Swiss citizen can safely be
said to belong in one way or another to a majority and to a minority as
well. To give but one example, a
French-speaking Protestant resident of Valais belongs to a denominational group
forming a majority at federal level but a minority at cantonal level and speaks
the canton's majority language, a minority language at federal level.
The principal demands and
aspirations of minorities are equal treatment with the majority and some degree
of autonomy as a means of preserving their cultural heritage.
The autonomy and
self-determination aspired to by minorities are nevertheless only principles
which must be given effect in everyday political affairs. Federalism is no doubt an excellent means of
applying and fulfilling these principles, by virtue of its ability to foster
pluralism and accommodate national differences. Its flexibility makes for a
certain balance between the desire of the majority and the aspirations of
minority groups to autonomy.
Swiss federalism does not
basically differ from that of other states but is conspicuous in having ensured
decades of peaceful co-existence for many minorities. This brief study sets out to examine the typical institutions and
chief mechanisms of Swiss federalism.
I. PROTECTION
OF MINORITIES THROUGH STATE INSTITUTIONS
A. Representation of minorities within
the federal institutions
Minorities
in Switzerland are protected primarily through their representation in the central
bodies of the state.
1. Federal parliament
The
federal parliament is bicameral. The
people's representatives sit in the first chamber (National Council) and the
representatives of the cantons in the second chamber (Council of States).
For
the purpose of electing the 200 National Council representatives, the territory
of the Confederation is divided into 26 constituencies corresponding to the
boundaries of the 26 Swiss cantons (Article 73, Federal Constitution). The 200 seats are allocated to the cantons
according to their respective populations under the proportional representation
system (Article 72 (2), Federal Constitution).
The procedure for allocating seats (rule of the largest remainder) has the
effect of favouring the representation of the smaller cantons in the lower
house. Elections are then held by
direct universal suffrage. Each voter
elects the members for his constituency, ie his own canton. There are from one to 35 members per canton
depending on its population. Elections
are conducted by proportional representation, so that minorities can be
represented. The very small cantons
with a population under 1/200th of the total Swiss population, which would be
deprived of all representation by the proportional system, are nevertheless
entitled by statute to one representative, who is elected by majority vote
(Article 72 (2), Federal Constitution). As a result, the small cantons are in fact over-represented in
the National Council because their single member, unlike those of the other
cantons, represents over 1/200th of the population.
The
second house of parliament, known as the Council of States, has 46 members, two
per canton and one per demi-canton. The
method of election is freely determined by the cantons. The membership of the Council of States
distinctly favours the small cantons, which have two representatives on the
same terms as the large ones. This also
means that the minorities are protected and well-represented.
The
two upper house representatives are frequently elected in such a way as to
represent the various facets of the canton, eg the two language groups, the two
denominations and the two main political tendencies. As the Council of State members vote without instruction (Article
91, Federal Constitution), these tendencies can be expressed at the time of
voting.
It
would be mistaken to believe that the federal element is represented solely in
the Council of States. The National
Council is also substantially "federalised"; since as already
explained, its members are elected in the cantons. In Switzerland, moreover, the political parties are organised
very much on a cantonal basis and a political career at federal level is very
difficult to achieve without support from the cantonal sections of the parties.
2. Federal government
The
government, known as the Federal Council, is also made up in such a way as to
represent the various components of the state.
Accordingly,
to ensure that as many cantons as possible are represented in the Federal Council,
Article 96 (1) of the Constitution stipulates that not more than one member may
be chosen from the same canton.
According
to an unwritten rule the seven members of the Federal Council must furthermore
include two or sometimes three councillors representing the French and
Italian-speaking minorities. At present
the two minorities, which together make up less than 25% of the total Swiss
population, are over-represented in the federal government with three out of
seven members of the federal executive.
According
to another unwritten rule observed since the early 1960s, the four main
political parties share the seven government seats in a ratio, called the
"magic formula", of two seats
each for three parties and one seat for the fourth. These four parties, which are known as the
governing parties and represent some 90% of the political forces in parliament,
include three centre parties and one left wing party. Although the three "middle class" parties would be well
able to govern on their own and leave the minority Socialist Party in
opposition as is the case in other countries, they have elected to give it a
share of responsibility for national affairs as part of the government. Thus a substantial political minority is
involved in government. Only the very
small political minorities, in particular the extreme right and the extreme
left, are not represented within the executive.
3. Federal Court
Concern
for equitable representation of minorities is also perceptible in the
composition of the country's supreme judicial body, the Federal Court. Article 107 of the Constitution provides
that in electing the Federal Court judges and their substitutes, the Federal
Assembly shall ensure that the three official languages of the Confederation
are represented. In practice, the
composition of the Federal Court also reflects the various political tendencies
in Switzerland, and judges are elected in such a way that all regions of the
country are represented.
It
will have been observed that the guiding principle underlying the composition
of all federal bodies is proportionality, as they must reflect the political
and linguistic components of the nation in proportion to their importance. Compliance with this principle
understandably entails a search for compromises between the interests of the
various communities constituting the nation (democracy of concordance).
B. Cantonal self-government
Another
institutional means of protecting minorities in Switzerland is the autonomy of
the cantons in all matters of self-government.
Article 3 of the Constitution provides that the cantons are sovereign
insofar as their sovereignty is not restricted by the Federal Constitution and
that they accordingly exercise all rights not delegated to the federal power.
As
space does not permit a detailed description of all fields within the cantons'
sphere of competence, only the chief ones will be mentioned.
1. Constitutional law
a. The cantonal institutions
As
decentralised public authorities, the cantons are free to adopt whatever forms
of organisation they consider appropriate and to allocate the cantonal power to
such bodies as they may see fit to establish.
Thus each canton has its own constitution. Cantonal self-government is furthermore recognised indirectly by
Article 5 and 6 of the Constitution and has enabled them to retain to some
extent the political institutions handed down to them: assembly-based democracy
(Landsgemeinden) in the cantons of early Switzerland; representative democracy
in the former aristocratic cantons; direct democracy in the cantons where
democratic ideas triumphed in the mid-19th century.
Article
6 of the Constitution simply requires the cantons to have a republican and
democratic government. While all have
adopted the collegial system of the central government, there is nothing to
prevent them from choosing another political system, eg parliamentary or
presidential government. All cantons
have their own distinctive versions of four main bodies: the electorate, the
parliament, the government and the judiciary.
i. The cantonal electorate
Within
the limits imposed upon it by federal law, each canton establishes its own
definition of the categories to be
granted political rights, ie the right to vote, elect representatives
and sign public proposals for legislation or reform (initiative populaire) or
petitions for referendum in cantonal affairs (see Article 74 (4) of the
Constitution). Consequently, there are
fairly significant differences between cantons.
These
firstly concern age, ten cantons having fixed the age of civic majority for
cantonal affairs at 18 and the rest at 20 years.
The
differences also relate to nationality; Jura canton, for example, gives
foreigners resident in the canton for ten years the right to vote.
Two
cantons allow their expatriate citizens to belong to the cantonal electorate,
while residence in the canton is a condition laid down by the other cantons for
enjoyment of political rights.
In
the vast majority of cantons, the electorate avails itself of its rights
through secret ballot. Five cantons,
however, have preserved to this day a typical institution of early Switzerland,
the Landsgemeinde. This is a general
assembly of citizens which meets once a year outdoors and conducts all cantonal
elections except the election of the parliament, which is by ballot. It is also empowered to revise the cantonal
constitution and pass legislation.
Voting is by show of hands.
ii. The cantonal parliament
All
cantons have a parliament but its official title varies (Grand Conseil,
Kantonsrat, Landsrat). The number of
representatives in each assembly ranges from 60 to 200.
The
method of election in nearly all cantons is that of proportional
representation, the general rule (except in Geneva and Ticino) being that the
cantonal territory is divided into several constituencies made up of the
communes, circumscriptions (= cercles) or districts. Some cantons nevertheless have the majority system (Grisons, Uri,
Appenzell Inner and Outer Rhodes).
Cantonal
parliaments also have varying terms of office, usually four years but in some
cases less (Grisons: 2 years) or more (Fribourg: 5 years). Grounds of incompatibility also vary greatly
from one canton to the next.
There
are further essential differences between the parliaments of Landsgemeinde
cantons, which necessarily have limited powers, and those of the city cantons
such as Geneva, Basel or Zurich, which are modern parliaments on the model of
national parliaments.
This
diversity stems from the specific history of each canton but also reflects the
extent of citizen rights and the party system, which includes the single party
(one canton) multiparty systems (in 15
or more cantons) the bipartite system with a dominant party.
iii. The cantonal government
Each
canton has a governments, whose official title varies. The cantonal governments are all collegial
bodies like the federal government, but their membership varies from five to
seven according to the canton. They are
usually elected by majority vote, but two cantons (Zug and Ticino) use the
proportional representation system.
The
age of candidacy also varies from one canton to the next.
While
professionalism is the rule for the members of cantonal governments, some small
cantons have citizen part-time governments whose members continue to hold
another occupation.
iv. The cantonal courts
The
cantons have considerable autonomy as to their judicial order. Except for the Federal Court and a few
special appeals boards, all the Swiss judicial authorities are cantonal (see
Article 64 and 64 bis of the Constitution).
The salient feature of this judicial order is its great diversity. Civil, criminal, administrative and special
or extraordinary courts must be differentiated separately for each canton. For instance, in addition to the ordinary
civil courts some cantons have a special civil authority dealing with
employer-employee disputes (conciliation boards). Some have the institution of trial by jury for serious criminal
offences, others not.
There
is also a variety of cantonal administrative courts. Twenty or so cantons have recently set up an administrative court
ruling on the lawfulness of most administrative decisions. In cantons not yet having adopted this
institution, appeals are made to the cantonal government or to specialised
appeals boards.
b. Local structures
These
are invariably governed by cantonal law, either stringently or with some scope
for autonomy.
Where
their internal structures are concerned, the communes can be divided into two
main categories. While they all have at
least two bodies, ie the local electorate and the local government, some also
have an assembly. The bipartite
structure (consequently without an assembly) is typical of the smaller
communes; the tripartite structure is more commonly found in the large ones.
Owing
to the importance of communes as the lowest tier of authority in the Swiss legal order, the right to preserve their
autonomy is secured to them but the scope of this right is for the cantons to
determine.
Subject
to Article 43 (4) and (5) of the Federal Constitution, cantonal law determines
the composition of the local electorate.
In Neuch?tel canton, for instance, foreigners resident in the
canton for five years and in a commune for one year may vote in matters
affecting the commune, while they are not granted this right in the other
cantons.
c. Other territorial authorities
The
characteristic structure of the Swiss state comprises the Confederation, the
cantons and the communes. However,
within this three-tier state, there occur in a few cantons other authorities
which will merely be mentioned in passing, eg the districts which come next
above the communes in certain cantons.
The circumstances of Grisons canton are true public authorities whose
bodies hold considerable judicial, political and administrative powers.
2. Political rights
Political
rights also vary considerably between cantons.
a. Mandatory referenda are normal
in all cantons for review of the cantonal constitution
(see Article 6 (2) (c) of the Federal Constitution), but
some cantons apply this requirement to still other official acts. Fifteen prescribe it for the passing of
ordinary legislation and some even for parliament orders, and 19 for
expenditure over a certain amount (financial referendum) and for the conclusion
of inter-cantonal agreements or treaties (treaty referendum).
Optional
referenda may be held in respect of legislation in the 11 cantons which do not
have a mandatory referendum for this purpose; 18 cantons also prescribe it for expenditure
over a certain amount, and five do so for inter-cantonal agreements.
The
time allowed for requesting a referendum is from one to two months depending on
the canton.
b. The "initiative populaire"
form of consultation exists in all cantons but the number of signatures
required varies. Furthermore, cantonal
law lays down the conditions of its success and in particular the time within
which the lists of signatures must be lodged with the competent authority. Cantonal law also regulates the formulation
of the question to be put to electors, especially where the government counters
it with its own proposal.
c. Only seven cantons apply the right of
revocation, enabling a faction of the electorate to move the dissolution of
parliament, the dismissal of the executive or the removal of any official.
3. Taxation law
The
Swiss cantons enjoy extensive autonomy as regards taxation. Except where taxes are levied solely by the
Confederation, eg turnover tax (Article 41 bis (1) of the Federal
Constitution), the cantons have freedom to define the purpose, basis and rate
of cantonal taxes and the persons on whom they are levied. They also have free use of their tax yield.
In
particular, the cantons levy a direct tax on personal income, on the turnover
and capital of corporate bodies, private assets and capital gains. They collect excise on vehicles, property
conveyance dues, entertainment tax, foreigners' residence fees, estate duty,
etc.
Cantonal
autonomy in taxation matters means that cantonal taxes are highly diversified.
4. Federal law restrictions on cantonal
self-government
In
all fields mentioned above, cantonal self-government is of course not absolute,
is to be exercised strictly within the limits prescribed by federal law. The chief restrictions are as follows:
- As regards political institutions,
Article 6 of the Federal Constitution requires the cantons to ensure that
political rights are exercised in a republican, ie representative or democratic
manner. In order to take effect, their
constitutions must be accepted by the citizens of the canton and be open to
review when the absolute majority of citizens so request (Article 6(2)(c) of
the Federal Constitution). In other words,
the cantons must arrange consultation by "initiative populaire" in
constitutional matters. They are also
required to have their constitutions guaranteed by request to the
Confederation, which is not granted unless the cantonal constitution complies
with federal law in general.
Furthermore,
Article 43 determines to some extent who may vote in cantonal and local
elections and other forms of consultation.
Likewise, Article 44 settles some of the conditions under which
foreigners may acquire or forfeit citizenship of a canton or commune.
Nor
is the fiscal autonomy of cantons absolute.
Apart from the need to respect the Confederation's sole power to levy
certain taxes, established federal practice requires that their own taxes are
prescribed by a law in the strict sense.
Lastly double taxation is prohibited by the Federal Constitution,
(Article 46(2)), as are certain ecclesiastical taxes (Article 49(6)). Article 42 quinquies gives the Confederation
responsibility for harmonising federal, cantonal and local taxes.
Needless
to say, in the exercise of cantonal powers, whatever their nature, the cantons
must observe the basic principles of the rule of law, such as separation of
powers, legality, independence of the courts and the fundamental rights of the
individual.
II. PROTECTION
OF MINORITIES THROUGH THE MAKING AND APPLICATION OF LAW
A. Law-making
1. Participation by the cantons in the
federal process ofdecision
The
Swiss cantons form one of the Confederation's basic entities, or even the chief
entity alongside the Swiss people, and as such are actively involved in the
process of central government decision.
a. Accordingly, every full or partial
revision of the Federal Constitution must be approved by the majority of the
people and by the majority of cantons.
Thus the constitutional power in Switzerland consists of the people and
the cantons (Article 123 of the Federal Constitution). This dual majority is also required to
ratify international treaties of very high importance such as those dealing
with collective security and instituting supra-national communities (Article
89(5)). It can therefore be said that
in Switzerland no domestic or foreign policy decision is possible without the
assent of the majority of the cantons.
The
dual majority requirement has two implications.
Firstly,
those cantons which constitute minorities, eg linguistic minorities, may oppose
a project accepted by the majority of the population if they are supported by a
few other cantons.
Secondly,
as the vote of each canton is determined by the majority of its citizens and as
each canton has one vote, irrespective of its population, a minority of the
population can block a project accepted by the majority of the population if
that minority is distributed throughout most of the cantons.
The
constitutional history of the Confederation includes instances where a proposal
to revise the Constitution did not come into force because it was rejected by
the majority of the cantons.
b. The cantons also form an entity of the
Confederation in that a law passed by the federal parliament can be subjected
to referendum at the request of 8 cantons (Article 89). Thus cantons representing minorities may
possibly defeat at referendum a law to which they object, thanks to this
provision.
c. Each separate canton may furthermore
submit a proposal to the federal
parliament for the adoption of a law or constitutional provisions (Article
93(2)).
Lastly,
according to firmly established practice, whenever the federal government has a
federal act in preparation, before submitting the bill to parliament it applies
the procedure known as consultation which serves to obtain the opinion of
various entities or groups affected by the bill. These include political parties, trade unions, the various
pressure groups and of course the cantons.
If a bill is not favourably received by the cantons, the federal
government generally refrains from putting it to parliament or amends it before
doing so. As a referendum can be requested
by a minority of the population (50,000 citizens) or of the cantons (8), its
likelihood compels the federal government to take account of the opinions
expressed by the entities consulted.
2. Apportionment of responsibilities
between the confederation and cantons; legislative autonomy of the cantons
a. Principles
Under
Article 3 of the Federal Constitution, matters within the competence of the
Confederation must be specified in the Constitution. In other words, if the Confederation is to intervene and
legislate in a given area, it must be identified in the Constitution. Otherwise it rests with the cantons, so that
they have their own powers in all matters for which the Confederation lacks
competence. The extent of cantonal
powers nevertheless varies according to the nature of the federal power.
Where
the Confederation has sole competence, as in national defence (Article 18 to
22), customs (Articles 28 and 29), rail transport (Article 26), post and
telecommunications (Article 36), currency and bank notes (Articles 38 and 39)
and foreign affairs, the cantons hold no power in their own right.
In
those areas where the Confederation has been assigned parallel competence above
and beyond questions of principle, such as private law, intellectual property,
prosecution for debt and bankruptcy (Article 64), criminal law (Article 64
bis), public labour law (Article 34 ter), the cantons no longer have undivided
powers if the Federal Government has made full provision by enacting exhaustive
legislation on the subject, pending which they hold such powers on a
provisional basis only.
In
fields where the Confederation holds parallel powers in respect of the
principles only, ie power to enact outline legislation, eg on regulation of
forests (Article 24), hunting and fishing (Article 25), spatial planning
(Article 22 quarter), the cantons hold indefinite powers of their own, though
only as regards regulation of the details.
In
spheres where the Confederation and the canton are assigned corresponding
powers, the two may enact concurrent legislation.
Lastly,
the cantons have sole power in matters over which the Confederation has no
authority.
b. Scope of cantonal powers
- In the private law sphere, the
Confederation adopted a Civil Code in 1907 and a Code of Obligations in 1911,
so that the private law sectors in which cantons can legislate are very limited
and consist of those few areas in which they have a delegated competence under
either code (Section 52.1 and 55.1 in the last chapter of the Civil Code; Section 686 of the Civil Code). On the other hand, the cantons have retained
competence in respect of civil procedure insofar as proceedings take place
before the cantonal courts, and the rules of civil procedure vary accordingly
between cantons.
- Criminal law was also unified by the
adoption of the Swiss Penal Code in 1937, so that the cantons no longer have
the authority to define certain acts as crimes or offences, although Section
335.1 of the Penal Code concedes their power to legislate on petty offences not
covered by federal legislation. The
cantons have nonetheless retained competence in respect of criminal procedure insofar
as trials are held before the cantonal courts, and the rules of criminal
procedure vary accordingly between cantons.
- Public law differs in that the
cantons have retained considerable legislative autonomy depending on the public
law field, so that wherever the Confederation has only an enacted outline
legislation the cantons hold some degree of legislative power. Such areas are spatial planning, regulation
of forests, hunting and fishing and routine naturalisation of aliens. To take
just the foregoing example, it can be pointed out that as set forth in Section
12 of the Federal Act on the acquisition and forfeiture of Swiss nationality,
Swiss nationality is acquired under normal procedure, through naturalisation in
a canton and a commune. An alien
therefore becomes Swiss by acquiring citizenship of a canton. Section 15 of the same act merely lays down
the minimum requirements stipulated for securing Swiss nationality, while the
naturalisation procedure is arranged by the cantonal authorities.
The
cantons may also legislate in areas where both they and the Confederation are
competent, namely their own political institutions, the political rights of
citizens at cantonal level, the judicial order, procedural law and taxation
law.
Lastly,
there are fields where the cantons may legislate exclusively; these are
education, public works, public health, culture, church-state relations and
worship, law and order, fire prevention, building regulations etc.
3. Inter-cantonal agreements
In
those areas where they hold legislative power, the cantons may also conclude
mutual agreements known as inter-cantonal concordats. These are the chief instrument of what is commonly termed
co-operative federalism.
Though
such use of them is rather uncommon in practice, these agreements may enable
cantons comprising minorities, for example linguistic minorities, to settle
certain questions by common agreement without the federal authorities
intervening.
B. Application of the law
The
fact that certain matters rest with the Confederation does not completely
remove them from the influence of the cantons.
In Switzerland, legislative activity is the only field to which the
principle of apportionment of powers between central and cantonal government
applies absolutely. It is less rigidly
adhered to in the field of judicial and executive activity.
In
matters where legislation rests with the Confederation, it shares judicial
power with the cantons. This is
particularly so as regards private law and criminal law. Although the Civil Code and the Penal Code
were enacted by the Confederation, disputes in private law and criminal law are
settled initially by the cantonal courts.
The application of federal law by the cantonal courts can result in
differing interpretations of the same rule and have repercussions on the
sometimes dissimilar settlements adopted by these courts in respect of
litigation referred to them. One
frequently mentioned example is abortion, for which Section 118 of the Penal
Code provides prison sentences. While
this provision is stringently enforced by certain cantonal courts, it has
become virtually obsolete in other cantons, so much so that debate has arisen
over the expediency of finding a federal solution, ie adaptable to each canton,
to the problem of termination of pregnancy.
This example shows that even in branches of law which have been unified
there is room for some cantonal autonomy in the interpretation of the law.
These
considerations also apply to the application of the law by the administrative
authorities. Indeed, there are fields
where the Confederation not only legislates but also takes decisions and has
them enforced by federal officials, eg railways, postal services and customs. Elsewhere, however, legislation passed by
the Confederation is carried into effect by the cantons in what is called
executive federalism. In some cases,
the Constitution explicitly provides for the enforcement of federal law by the
cantons, for instance in the fields of civil defence (Article 22 bis (2)),
nature conservation (Article 24 septies (2)), protection of animals (Article 25
bis (3)) and national highways (Article 36 bis (2)).
Legal
practice and theory nevertheless concur in acknowledging that the federal
legislator, even where not expressly authorised to do so by the Constitution,
may delegate power to execute federal laws to the cantons. Executive federalism has moreover become a
basic principle of Swiss federalism, enabling the cantons to retain some
autonomy even in areas covered by federal legislation. The extent of this autonomy depends on the
thoroughness of the federal legislation and the exactitude of the rules
therein.
III. FEDERALISM
AND ACHIEVEMENT OF AUTONOMY
Federalism is a type of
political structure enabling minorities to achieve some degree of autonomy
while averting secession. The
constitutions of several federal states provide the possibility of establishing
new federated states within the supreme state, but the Swiss Federal
Constitution contains no such rules.
Nonetheless, there is no
impediment to a minority incorporated into a canton achieving autonomy by
forming a new canton, as witness the creation of Jura canton.
In 1815 the Jura districts
with their predominantly Catholic French-speaking population were attached to
the mainly Protestant, German-speaking Bern canton, although historically the
Jura districts, at least in the North, had always had special links with France
and the Basel area rather than with Switzerland.
This minority expressed its wish
to become an independent canton on several occasions. However, this necessitated a curtailment of Bern canton's
territory. In 1970 the population of
this canton agreed to a change in its constitution to allow the organisation of
plebiscites in the Jura districts possibly resulting in the formation of a new
canton. Under the newly adopted
provisions, three plebiscites were held in succession.
During the first plebiscite
on 23 June 1984, the population of the seven Jura districts in Bern canton voted
by a small majority for the creation of a new canton (the northern districts in
favour; the southern districts against).
The principle of a new canton
being established, its boundaries remained to be defined. This was done in the second plebiscite on 16
March 1975, when each district was asked whether it wished to separate from or
stay with Bern canton. The three
northern districts chose separation, the four southern ones the perpetuation of
the status quo.
In a third and final
plebiscite held in October 1975, eight communes on the dividing line between
the northern and southern districts voted to join the new canton while six
others expressed the wish to remain part of Bern canton.
The reception of a newcomer
by the Confederation still had to be approved by the majority of the Swiss
people and cantons. Approval was given
at a constitutional referendum held on 25 September 1978. 82% of electors and all cantons voted in favour
of creating the new Jura canton. The
object of the referendum was to amend Article 1 of the Federal Constitution
containing the list of Swiss cantons.
The creation of this new
canton thus took place in compliance with two major principles, the first being
the democratic principle: the majority of the population of Bern canton in 1970
accepted the principle of ultimate separation from the Jura districts and
resultant loss of territory, while the majority of the Jura population chose
separation. The second essential
principle on which the whole operation was founded is the federalist principle:
the Jura districts did not become a new canton in law until the majority of the
Swiss people and cantons agreed to amend Article 1 of the Federal Constitution.
The case of Jura canton shows
how a minority formerly incorporated into a larger political unit was able to
fulfil its aspiration to autonomy by becoming a canton. Had it not formed itself into a fully
independent canton, it might have assumed demi-canton status like three Swiss
cantons which are divided into two. In
one case, the division was carried out to enable the two denominational
communities to lead separate lives.
IV. FEDERALISM,
MINORITIES AND BASIC RIGHTS
The Federal Constitution of
the Swiss Confederation contains no special provisions on minorities. Minorities can avail themselves of the basic
rights secured to all citizens. Under
Article 4 of the Constitution, these rights must be exercised without
discrimination of any kind.
In two areas, however,
minorities receive special protection.
Firstly, certain guarantees are secured to linguistic minorities. Secondly, minorities of any kind have the
opportunity to take part in the process of political decision.
A. Protection of linguistic minorities
1. The territoriality principle
Article
116 (1) of the Federal Constitution provides that Switzerland shall have four
national languages, German, French, Italian and Romansh. This constitutional provision does no more
than to set the official seal on an existing situation, ie the division of Swiss
territory into four language zones, the German-speaking region (some 75% of the
population), the French-speaking region (about 20%), the Italian-speaking
region (about 5%) and the Romansh region (less than 1%).
The
French and Italian language minorities are concentrated in certain cantons
where they make up the bulk of the population.
Article
116 (1) of the Constitution establishes the principle of territoriality. This is designed as a constitutional
guarantee of Switzerland's linguistic plurality. Relying on this provision, the Confederation can take such
measures as it deems necessary on behalf of languages which are in a minority
or endangered. For instance, Article
116 (1) was the basis for the adoption by the Confederation of the Federal Act
on subsidies to Grisons and Ticino cantons for the preservation of their
culture and language.
The
territoriality principle also enables linguistic minorities to make use, in
their own cantons where they form a majority, of their own language in official
relations with the authorities and in schools.
2. Official languages
Of
these four national languages, only three are official, viz German, French and
Italian. Romansh, not being widespread enough,
has not found sufficient favour with the constitutional power to be elevated to
the status of an official language.
However, the current preparations for a revision of Article 116 of the
Federal Constitution include the question of Romansh as a further official
language.
The
recognition of three official languages in the Constitution has the effect of
conferring on the minorities, particularly the French-speaking and
Italian-speaking ones, the right to communicate in their own language with the
political, administrative or judicial authorities at federal level. Another implication of the official
languages principle is of course that these authorities are required to
communicate with the minorities in their own language. Likewise, the three official languages are
used for the publication of federal acts and for the conduct of Federal
Parliament debates, with simultaneous interpretation. Within the federal administration, the three official languages
can be used internally and in contacts with members of the public. Lastly, applications can be made to the
Federal Court in each of the official languages, and its judgments must be set
out in the language of the decision appealed from.
The
territoriality principle and the official languages principle are also applied
mutatis mutandis at cantonal level in the three bilingual cantons of Bern
(French-speaking minority), Fribourg and Valais (German-speaking
minorities). Each language may be used
in relations with the cantonal authorities.
Grisons
canton is the only trilingual one, with a German-speaking majority and two
minorities using Romansh and Italian.
However, the application of trilingualism is not all-embracing. Locally, the communes have a very wide
degree of autonomy and consequently settle the official language problem in
their own way. Matters are complicated
by the fact that Romansh is not a single language but has five separate
dialects. Efforts towards unification
have resulted in a standard language, "Rumantsch Grischun", thanks to
which it is hoped that a language threatened with extinction will be preserved.
As
demonstrated above, at the level of the federal authorities the language
minorities are duly represented in the Federal Council, the Federal Assembly
and the Federal Court without the need
to introduce a quota system.
B. Political rights
Political
rights, particularly those of initiative and referendum, constitute the second
area in which minorities enjoy special rights.
- The right of initiative enables 100,000
citizens to request the amendment of the Constitution (Article 121 of the
Federal Constitution). This institution
allows a religious, linguistic or other minority of the population to put
forward at constitutional level a set of regulations in its own favour. As has been explained, this right can be
exercised in constitutional as well as legislative matters by each canton
(Article 93 (2)). It also enables any
one canton inhabited by a minority (eg the Italian-speaking Ticino canton) to
propose an amendment to the Federal Constitution or the enactment of a law on
an issue concerning that minority. In
order to take effect, the statutes proposed must of course be approved by the
majority.
The
right of initiative also applies in all cantons and can be exercised by their
resident minorities.
- The right of referendum enables
50,000 citizens to request that any law passed by Parliament should be
submitted to the people for approval.
Here too, any minority considering itself disadvantaged by a law can
therefore attempt to defeat it at referendum by collecting the required number
of signatures. The same right can also
be exercised by a minority of cantons (Article 89 (2)).
CONCLUSION
A few observations may be
made to round off this succinct study.
In Switzerland, the solution
to the problem of minorities lies chiefly in the fact that the country is
primarily and essentially a political reality and much less a cultural
entity. As a state, it is founded on
common political convictions and ideals such as federalism, democracy, rule of
law and determination to share these values.
They are respected as long as they remain unchallenged by minorities,
whatever their nature. On the other
hand, when a state is not defined in terms of common political values but first
and foremost by its linguistic and cultural characteristics, minorities have
far more trouble in gaining acceptance.
Secondly, Switzerland is
composed of older political entities, the cantons. These are historical realities which cannot always be defined in
terms of their linguistic or denominational characteristics, three being
bilingual and one trilingual. The
cantonal boundaries thus do not coincide with the boundaries of the three
language regions or indeed with the denominational communities. Because Switzerland is divided into cantons,
not into three regions corresponding to the language regions, it cannot be
split up into cultural, religious or linguistic entities. In other words, the political divisions of
the country do not correspond to its cultural demarcations. As minorities are part and parcel of the
cantons, the language regions are not the sole context of diversity but merely
a further context.
This interweaving of the
political and administrative boundaries with the linguistic and cultural
boundaries makes it very hard for any group to predominate. As a result, Switzerland consists of a large
number of minorities which offset and counterbalance each other. As pointed out earlier on, each Swiss
citizen belongs to a minority in one way or another. This intricate patchwork is definitely more conducive to the
protection of minorities than the clear differentiation and geographical
localisation which often apply.
