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Decisions of the Swiss Sovereign on February 12 2017

by Thomas Fleiner

On Sunday February 12 2017, the Swiss sovereign (Article 195 as well as according to Article 142 par 2 of the Constitution) decided on two amendments of the constitution proposed by the Parliament with a turnout of 46% to 47%. The constitutional amendment on third generation foreigners living in Switzerland has been approved with 60.4% yes and 39.6% no. 17 cantons voted yes and only six cantons voted no. The Swiss sovereign approved the amendment on the financial support for the roads with 61.9% yes and only 38.1% no. All cantons did approve this constitutional amendment. The most controversial issue of today’s vote was the decision on a facultative referendum against the law on the corporation tax, which a clear majority of voters rejected with 59.1%. Only 60.1% of the voters would approve this corporation tax.

1. Constitutional amendment by the Parliament to provide for third generation of foreigners to get Swiss citizenship with a facilitated procedure

On June 9 2008 Mrs. Ada (Addolorata) Marra, a socialist member of the National Council of the canton of Vaud had proposed already, that children of the third generation should have the possibility to acquire the Swiss citizenship through an eased procedure. The Swiss sovereign had already rejected on June 1st 2006 a popular initiative to limit the municipal autonomy in order to provide the Swiss citizenship. Ada Marra has double citizenship (Swiss and Italy). As a socialist member of the National Council, she submitted to its legislative chamber a parliamentary initiative for third generation foreigners based on Article 160 of the Swiss Constitution. In many countries, such a parliamentary initiative would be unusual. With regard to three citizenships, Switzerland is to my knowledge the only country in the world, with the three citizenships, that is of the municipality, of the canton and of  the Confederation. Originally, the founding Constitution 1848 of Switzerland provided already in its Article 42 that citizens of a canton are automatically Swiss citizens. Actually, Article 37 of the Constitution provides that any person who is a citizen of a commune and of the canton, to which that commune belongs, is also a Swiss citizen. Article 38 empowers the legislature of the Confederation to provide in its legislation that persons acquire their citizenship by descent. This corresponds to the “ius sanguinis”, which is different from the ius soli to become e.g. President of the US. Children of Swiss citizens are automatically citizens of Switzerland, of the municipality and of canton of their parents. In the future Switzerland will – apart from the already existing law on citizenship – have a new legislation on Citizenship. This new law enters into force on January 1st  2018. The law distinguishes between the ordinary and extraordinary procedure to acquire Swiss Citizenship. According to Article 15 of this law, the cantonal legislature is competent to provide the procedure for foreigners to become citizens of the canton, the municipality and the Confederation. The constitutional proposal of the Parliament concerning Article 38 par 3 of the Constitution provides only for the extraordinary procedure.  According to Article 25 of this new legislation, the Federal Council regulates the procedure in a respective ordinance. The administration competent for migration has to consult the canton in case it wants to naturalize the respective person. The Swiss citizens will have the possibility to require a referendum against this law. For this reason, the Federal chancellery did not publish this new Article 24a of this law. The content of this article contains several conditions for the extraordinary procedure of third generation youngsters. Both chambers of the Parliament did adopt this provision. However, the chancellery of the Confederation will publish it for referendum after the sovereign has adopted the new constitutional amendment. The Federal Council and the Parliament recommend to the sovereign to adopt this constitutional amendment. They argue that foreigners whose grandparents had already immigrated and pay taxes in Switzerland are an important part of our society. Their children and even grandchildren went to Swiss schools, speak the local language are well integrated into the Swiss society. The main argument against this proposal is federalism. The opponents fear that this extraordinary procedure would unnecessary limit cantonal autonomy. They argue that there is no need to allow foreigners this extraordinary procedure.

2. Constitutional amendment of the Parliament to set up constitutionally a fund for road construction

Switzerland has a perfect public and road traffic system. In June of 2016, Swiss politicians gathered in Erstfeld (canton Uri) and Bodio (canton Ticino) to open the new Gotthard basis tunnel, which is actually the longest and deepest tunnel in the world. It connects the south with the North of Switzerland as well as the northern part of Europe with its Italian south. The tunnel costed almost 10 billion dollars.  The main idea of this tunnel is to avoid that trains have to carry passengers and weights up and down because of the mountain of the Gotthard. The efficient train and road system is due to several direct democratic decisions of the sovereign including the political stability of Switzerland. According to Article 3 of the Swiss Constitution, Cantons are sovereign as long as the Federal Constitution does not limit their sovereignty. Unlike many other countries, Switzerland did not introduce in its Constitution or legislation a so-called sweeping clause, which would give general competences, powers and responsibilities to the Confederation. The reason for this gap within the Constitution is direct democracy. For these reasons, Switzerland needs to have for any new duty and tax of the Confederation a new constitutional amendment including of course a vote of the sovereign to approve or reject this new amendment. Article 42 of Federal Constitution requires additionally that the Confederation can only fulfil duties, which the Federal Constitution assigns to the Confederation. For these reasons, any new tax such as the tax for electric cars and the new fund as well as its obligations to spend the money of this fund according to the Constitution need to have new bases in the Constitution. The new proposed Article 83 obliges the Confederation principally and the cantons to have to care for a sufficient road infrastructure in all areas of this mountainous country. Par 2 of this Article distinguishes between the competences of the Confederation and the cantons with regard to the infrastructure of the traffic; it obliges the Confederation to take care of the national or federal roads and to provide a network of federal roads (routes nationales). The Confederation has to apply its network plan. Article 82 par 3 of the existing Constitution provides that public roads should be free of charge. This requires a new constitutional article (Article 85a) for fees to use the highways (national roads). The new proposed Article 86 of the Constitution obliges the confederation to create a permanent fund to pay for the construction and the maintenance of the national roads. In addition, the Confederation has the obligation to grant subsidies from this fund to the cantons for their infrastructure and maintenance of the public and private traffic of the agglomeration mainly in cities. Opponents of this fund argue that the Confederation pays too much for roads. This will detract important financial resources from education and social security. Instead paying for roads it would be much better to anticipate future digitalisation for the necessary mobility.

3. Referendum against the law on a corporation tax

The OECD and the European Union have required Switzerland not to privilege and unjustifiably favour corporations. Accordingly, the Parliament has elaborated a new law to equalize the gains of corporations with regard to other countries. This referendum depends only of the majority of the voters with regard to a referendum against the law on corporation tax. The socialist party, the party of the greens as well as labour unions asked for a referendum because they consider that the majority of the Parliament deceives people of middle income because the cantons will have to fill the financial gap. Either taxpayers will have to pay for the loss of income or people will have to suffer because cantons will economise important tasks such as safety, education or social security.

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