Facts
P., of Haitian nationality, lived illegally in Switzerland until his marriage to a Swiss national in 1996. After the divorce in 1998, the authorities refused to renew his residence permit. P. filed a public law appeal against this decision, invoking the protection against arbitrariness provided for in Art. 9 of the new Federal Constitution.Considerations
The Federal Tribunal dismissed the appeal. According to its established case law under the former Constitution, the prohibition of arbitrariness alone does not confer the capacity to file a public law appeal. In order to invoke this guarantee, the appellant must be affected in his legally protected interests. However, in matters of foreign police, the authorities have free discretion to grant or refuse residence permits, unless federal law grants a specific right to the foreigner.
The entry into force of Art. 9 Cst. expressly enshrining protection against arbitrariness does not modify this case law. Although some authors argue that this inclusion as an independent fundamental right should, in itself, confer the capacity to appeal, the Federal Tribunal considers that the content of the guarantee is not sufficient to define the circle of persons…