THE SMOOTHNESS OF THE GUARANTEE PROCESS

Although the guarantee process might seem to be quite restrictive, the cantons enjoy considerable autonomy in the areas defined by their constitutions. Moreover, the process does not create too many problems.

The New Constitution of Jura, 1974

The case of Jura is undoubtedly the most famous one and the only one in recent times where the guarantee has been refused. The new constitution of the canton of Jura specified in its last provision (Article 138) that “the Republic of Jura could welcome any part of the Jurassian territory concerned by the vote of 23 June 1974, provided that this part has regularly seceded according to pertinent federal and cantonal law.” Following the opinion of the Federal Council, the Federal Assembly had refused to grant its guarantee because it argued that this provision encouraged the three Southern districts to secede from the canton of Berr. It was therefore considered a violation of the guarantee of territory (Article 5 of the former 1874 Constitution) and the principle of federal faithfulness, according to which the Confederation and the cantons owe each other a duty of consideration and support. One should also have read this provision as a simple explanation that the new canton was ready to welcome other territories without intervening actively in order to “help” other parts to secede.²³ On the other hand, it was also possible for the new canton to interpret this provision as mandatory. Nevertheless, according to the principle that the interpretation had to be made in conformity with federal law ( “if there is only one case where the provision can be applied without any violation of federal law, then it has to receive the guaranty”), one should have considered that the new canton would continue to respect the principle of federal faithfulness, and therefore the guarantee should have been granted. But of course this happened in a very special political context, where political factors – and not only legal ones – also played a key role.

The New Constitution of Basel-Landschaft, 1984

Article 115, paragraph 2, second sentence of the new constitution of Basel-Landschaft, dated 4 November 1984, pledged that the canton would avoid any nuclear plant being built on its territory. As a first step, the Council of States, which considered the building of nuclear plants to be a federal matter, refused the guarantee because of the violation of federal law about nuclear energy and of the principle of federal faithfulness. Then the National Council accepted the guarantee in March 1986 and the Council of States supported this approval in June. They admitted that in fact federal law concerning nuclear energy left a certain room for manoeuvre to the cantons, and therefore that the new cantonal constitution did not prevent a federal function from being implemented, simply because the building of nuclear plants was not in fact a federal function. Moreover, “pledging itself to avoid” any nuclear plant being built did not mean “preventing.” Therefore there was enough space for an interpretation in accordance with federal law.