Federal popular initiative “Swiss law instead of foreign judges (Self-determination initiative)”

Interview with Lukas Reimann, National Councillor SVP SG

Current Concerns: What was the reason for launching this initiative?

National Councillor Lukas Reimann: The problem has emerged over the years since more and more templates, both in direct democracy and in Parliament come across limitations. If, as parliamentarian you want to change a federal law, one will hear that there is international law, international obligation and there is nothing to say to it, it cannot be changed just like that. There is an increasing restriction of people’s rights as well as a limitation of sovereignty and independence of Switzerland. A dangerous development – less and less is decided in Switzerland and ever more by any boards that are democratically not legitimised and that decide away on Switzerland. The mass immigration initiative is an example for what it is all about now. But there was already the initiative of imprescribility and custody and of course many objectionable decisions in Strasbourg [the European Court of Human Rights ECtHR; editor’s note]. Here, it certainly is no longer basic human rights, but a political intervention of a judge panel in a democratic country which itself can better decide what is good for the local citizens and what not. That is the background of the initiative. It did not derive from a single decision, but it was a development.

Why is it necessary to inscribe in the Federal Constitution: “The Constitution is the supreme source of law of the Swiss Confederation. […] The Federal Constitution stands above and proceeds international law, subject to the mandatory provisions of international law” (BV Art. 5 para. 1 and 4 new). Can you give us an example?

Basically, this is the current practice which has been applied by the Federal Court until recently, the Schubert practice. This means that a new national law proceeds older international law. Now, the Public Law Division II of the Federal Court, in a highly controversial decision – a different chamber of the Court might have decided differently – said that with regard to free movement of persons, the Schubert-rule is no longer valid, but international law proceeds even if more recent national right exists. This leads to considerable legal uncertainty, since the international law, the agreements and treaties have to hone in on national law as well. If something changes in national law, an international treaty has to be terminated, renegotiated and adjusted accordingly.
With the self-determination initiative it is mainly about the referenda. To change the Federal Constitution, it needs the consent of the people and cantons. Therefore, the Federal Constitution must be given more weight than any contract which is already in existance for fifty years. When it was signed, very different conditions might have prevailed.

Does this remind you of the ECHR?

As an example. Here I have to hold on to the fact that I am not against the ECHR, not at all. I can sign for everything therein. But how this is interpreted by the judges and how the jurisdiction of the ECHR gets out of hand – in the end we have decisions to health insurance premiums and waste separation which are somehow justified by human rights. This is incomprehensible!

According to the transitional provision (BV Art. 197 num. 122 12, new) only those international treaties are decisive for the Federal Court that have been subject to the referendum. Switzerland‘s accession to the ECHR at the time was not under the referendum. Hence, is Switzerland as a constitutional state allowed to terminate the ECHR?

The termination of the ECHR is not really necessary, but it certainly needs a debate on the issue – which I once asked for in a request for an additional protocol to the ECHR, where the Court was concerned with how far the European Court of Human Rights can go? When in 1974 Switzerland signed the ECHR, entirely different conditions proceeded. At that time, the ECtHR took a stand on war crimes and elementary human rights violations, not on everyone and everything. Today the Court is completely overburdened. 80,000 proceedings are in the waiting queue. This draws out the national proceedings for years. I find this precarious. Switzerland is by far not the only country complaining that the ECtHR is increasingly influencing national competences. But I would not terminate the ECHR, I think I would aim for an additional protocol. Some states would participate. The British Prime Minister Cameron, for instance, who was upset about the fact that prisoners may go to vote, and Ms Merkel has already negatively commented on the decisions of the ECtHR. Or Italy [where the whole country has refused to take the crucifixes from the walls in schools, as the ECtHR had demanded; supplement Current Concerns]. One could find even allies there.

The initiative envisages to oblige the Confederation and cantons to adjust or terminate international treaties that contradict the Constitution, (BV Art. 56. 1. para. 2 new). From an economic perspective, could Switzerland be in a position to afford terminating for example the agreement on the Free Movement of Persons Switzerland (FMP)?

The movement agreement itself has no economic importance in my view. The opponents of our initiative say, on termination of the FMP the entire Bilateral I would be dropped; but this would require each of the 27, or by now 28 EU Member States to individually pass resolutions wanting to resign. I think this is completely unrealistic. 95 per cent of the export goods from Switzerland is already regulated by the 1972 agreement, through the EFTA and other international treaties. The bilateral agreements account for a small part only. There is study after study, arriving at a different number with regard to the importance of the bilaterals. The question always is who has placed the order.
Fact is that Switzerland‘s trade with the EU is decreasing by 5, 6, or 7 per cent year by year. In all other regions of the world it is increasing. Of course, one may state that currently the EU it is economically not very attractive and others are better off. With other countries, however, we do not have bilateral agreements and sometimes there are trade barriers. Nonetheless, if there is a good product it will be bought. The only thing which no longer will be that easy for the economy is that many companies quickly recruit favourable labour from abroad. They hardly examine them and if after two or three days or weeks or months they realise they cannot do the job, they push them off. Switzerland pays, the taxpayer pays, and the next are coming. Without the FMP they perhaps would even have to again retrain more people or provide chances to older people. There are many unemployed in Switzerland, ever more. It would relieve the budget significantly. Here, the economy takes it too easy today.

“They push him off” – you do not mean abroad …

No, to the Swiss social welfare. As far as I’m concerned the companies could get as many workers from abroad as they want. Then, of course, they would have to sign that they take responsibility and pay for them. But neither this the companies want. In other words they want to have their cake and eat it, too. The point is, if we have a closer look again, who comes into the country and who not, it would economically benefit Switzerland and it would also be more just. Today, the only reason why someone is allowed into Switzerland is when he has an EU passport. This is not a substantive criterion. Substantive criteria would be whether he does speak the language, whether he comes from an industry where people are needed, what kind of education he has, whether he has a criminal record or not, or whether he is wealthy or not … These would constitute objective criteria according to which it would be fair to decide who has the right to immigrate and who not. The opponents of the initiative always act as if they were the humane and we the inhumane, but it is just the opposite.

Do I see it right that the Self-determination initiative also intends some kind of setting the course on the issue of relationship between Switzerland and the EU?

On the one hand, by all means and on the other on the question of the future of the people’s rights as well, the direct democracy. I do not deny that the importance of international law is increasing. The world becomes increasingly networked, and there are more and more international agreements. Hence, one has to be able to ensure that the people still remain the highest authority in the state. Thus, the international law has to be aligned according to the referenda.
It was also under consideration when reformulating Article 190 BV. More important international treaties have to be subjected to the optional referendum and the people could have a voice at an early stage.

As can be heard in Bern, not even the TTIP would be subjected to the optional referendum. On what grounds?

The people could not decide on all recent FTA. It was believed for example that the agreement with China was “unimportant”. Well, TTIP is not really a “free trade agreement”. I am in complete agreement with Current Concerns that we want free trade à l’EFTA and not globalisation à la USA. Of course, the TTIP would have to be put under the control of the referendum. But I’m not so sure that this is really going to happen.
For me, it is about the principle that the people can have a say in foreign policy. The greater impact foreign policy has on domestic policy, the more you have to find a solution. The variant of our initiative committee is that the people should remain the highest authority in the country. The variant of the opponents of the initiative is that increasingly delegation takes place to experts and expert bodies and to any intergovernmental committees. This way we are deprived of freedom and democratic rights.

Thank you, Mr Reimann, for this interview.     •

(Interview Marianne Wüthrich)

The Federal Constitution will be changed as follows:

Art. 5, paragraph 1 and 4
1    All activities of the state are based on and limited by law. The Federal Constitution is the ultimate source of law for the Swiss Confederation.
2    Confederation and the Cantons shall respect international law. The Federal Constitution ranks above international law and takes precedence over it, while taking into account the obligatory restrictions placed onto it by international law.

Art. 56a Obligations under international law
1    Confederation and the Cantons will not enter into any international obligations that will contradict the Federal Constitution.
2    In case of contradiction, they agree to amend those obligations to international law to fit the premises of the Federal Constitution, if necessary by means of cancelling the respective treaties.
3    Obligatory rulings of international law are exempt.

Art. 190 Applicable law
Federal law and international law rulings that have been approved by referendum are binding for the Federal Court as well as other authorities that apply law.
[…]
(Translation Current Concerns)