125 years popular initiatives to amend the Federal Constitution

The “Zentrum für Demokratie Aarau” (Centre for democracy Aarau) organized a panel discussion unter the title “125 years popular initiatives in Switzerland – a success story?” on 5 July 2016 which was well attended. Two members of parliament were sitting in the panel: Thomas Minder (no party affiliation, Schaffhausen) and Hans Stöckli (SP Bern) as well as two law professors (Professor Andreas Kley² and Professor Markus Müller³). Professor Andreas Glaser⁴ was a very committed and lively host for the event and the discussion with the audience.

Democracy means that it is impossible to govern against the will of the people

“Direct democracy is currently a hot topic all over Europe. After the Brexit vote some are demanding more rights of participation in many EU countries – and they want it right now – others find themselves justified in their opinion that the people are not to be trusted and politics should be left to the elites.” (Katharina Fontana⁵)
From a Swiss point of view, every EU country would have been required to hold a referendum about the questions of joining the Union or replacing the national currency by the EURO, since these are questions of great significance for the future of those states. After the Brexit other European countries will probably aim at similar referendums to leave the Union as well. Should the governments work too eagerly against such opportunities of the people to vote, because they fear the result to be a vote to leave, this could turn out to be counter-productive: In order to be called a “nation by consensus”, government and parliament in every state should always know whether a comfortable majority of their citizens backs the inclusion into some supranational entity or not.
Notably, it is nobody’s business to comment on the way the individual citizens have come to their decision at the ballot: after exhaustive reading and discussions or based on their “gut feeling”. This is up to them, their private business and personal freedom. (see Councillor of States Thomas Minder in interview, p. 3). This was stressed by Professor Andreas Kley in Aarau, too: “In direct democracy opinions are voiced spontaneously, this is a matter of principle. One may discredit this as ‘raging citizens’, as emotional, wrong, and so on. This is a negative view. I say: in democracy one cannot govern against the will of the people, there is no such thing as democracy against the people. Alternatively one would have to get rid of democracy altogether or install a dictator.”

Each citizen stands on equal footing with all others

Despite the obvious fact that direct democracy has proven to be a crucial condition for the happiness of the citizens over the centuries but also for peace and social justice in the country, there are still discussions being held now and again about whether the right to introduce popular initiatives should be restricted one way or another. Because unlike the right to have referendums, in which decisions of the parliament may be confirmed or vetoed, the popular initiative is a tool of active participation with almost no restriction to the wishes or ideas of the citizens to introduce constitutional amendments into the political process – in most instances against the will of the current parliament. For example, at the moment signatures are being collected concerning nine popular initiatives under titles such as “More affordable housing”, “For more transparency in political financing (Transparency Initiative)”, “For a reasonable paternity leave – for the sake of the whole family” or the initiative “Swiss law instead of foreign judges (Sovereignty initiative)” which has recently been commented on in this journal.
Considering, how deeply rooted the strong political rights of Swiss citizens are within the people, some comments that were voiced in addition to the overwhelmingly positive responses in the Aarau panel discussion were astonishing. Law professor Markus Müller, for instance, opined that the Swiss people were just one player among many others: “Democracy interpreted correctly is, in my opinion, the art to direct the people into the role which they can actually fulfill. Which is the role of a controlling body, a source of inspiration […].”
Such a “definition” of the citizens’ right to referendums and initiatives, however, may not be found in the Federal Constitution – rather, the Swiss people is the supreme authority in the Swiss confederation. The law professor from Berne was rather embarrassed when his colleague Andreas Glaser confronted him with a quotation from our neighbouring country, which is not so well-trained in democracy: “ The German president Gauck said after the Brexit vote, the elites were actually not the problem, but the populations. Markus Müller, this is probably your point of view, too, isn’t it? So, the people are the problem?”
Markus Müller responded: “ It is the elites’ fault if the people become the problem. – When I read through the official leaflets, all those well-intended ballot orientation guides, I get the feeling the authors think that the Swiss people consist only of clerks or above. But this is not so: I know a domestic cleaner in the nuclear power plant Gösgen, his mindset is different, this man needs to be guided differently.”
Since when has the Swiss population been divided into two different kinds of citizens – elite and domestics? In what way is the cleaner’s mindset different? Is he possibly unwilling to have himself carried right into the EU, on the tracks provided and oiled by some wannabe elites? This reminds me of a former colleague, like me a teacher at the vocational business school, but an ardent supporter of Switzerland joining the EU. One day she stormed into the teachers’ room and raged: “ Never again will I discuss the EU with my pupils [electrical engineer apprentices], they are all against it!” Those self-appointed “experts” will find it hard to brainwash those young workers from their healthy identification with their country into turbospeed EU joining enthusiasm – and thank goodness for that!
Such an unheard of classification of the citizens met criticism also from a member of the audience, who emphasized: “Mr Müller, you basically deny the plain people’s capability to make decisions. I think the opposite is true. Quite often it is specifically the non-lawyers and other ‘plain people’ who have a more balanced view of the factual issues. In preparation of every referendum there is indeed a broad in intensive debate where practically all arguments of all sides are voiced, so that in this process it becomes quite clear what the referendum is about. So in my opinion the decisions of all citizens should be taken seriously.”

Fundamental contradiction to the idea of the enlightened, responsible, independent citizen

Another member of the audience, Councillor of states Hansueli Vogt, who is a law professor himself, uncovered a principal contradiction in the ideology of some “progressive circles”: “I find it extremely elitist to deny the cleaner from Gösgen his or her ability to come to conclusions about the questions posed to them in a referendum. And at the same time the very individual rights, which your circles claim to champion, be it freedom of opinion, personal freedom, economic freedom and so on, all have the enlightened, responsible, independent citizens as their precondition. It is impossible to cheer individual rights, place the individual in the centre, as we do in our enlightened society, and then seconds later deny this individual’s ability to make decisions concerning the common good. This is a fundamental contradiction.”

Bossing the sovereign

Müller’s proposal how to guide the electorate appropriately corresponds to this: He wants to get rid of the popular initiative as an elaborated draft, i.e. the wording to be included into the constitution as desired by the initiators, and replace it by a mere right to make unspecific suggestions.
Quite clear what this would amount to: If the citizens could only give suggestions concerning overall directions of development in a popular initiative they would no longer be able to “disturb” the law-making activities of the parliament. The majority members of parliament would be free to alter laws in ways as to make them compatible with what they understand by “international law”, mainly the bilateral EU treaties.
The most relevant example of today’s Swiss politics was commented on by a member of the audience in Aarau, who put Müller’s proposal into a perspective of state law: “The proposal of Professor Müller to restrict popular initiatives to mere ‹unspecific suggestions’ would amount to an abolition of the right to initiate constitutional amendments. Basically this would be nothing more than a petition. The discussions around the Mass Immigration Initiative for example are rooted in the very fact that the initiative contains elaborated phrases to be included into the constitution – specifically the current article 121a of the Federal Constitution. This article rules about concrete measures such as ‘contingents’ and ‘maximum numbers’ for a sovereign governance of immigration into Switzerland. Officials in Berne and Brussels claim that this would be in breach of the freedom of movement and residence principle and complain about the Swiss electorate. Should the people have their right restricted and be allowed to propose some unspecific wishes only, such as: Please, dear parliament, would you mind considering that not too many people keep pouring into our country⁶ – then this might suit federal Berne better, but it would effectively be nothing more than a right to petition.”
Who would want to collect signatures in the streets, in rain and snow, all for some toothless petition?
Councillor of States Thomas Minder argues in a similar way in his interview: “The right to propose elaborated initiative texts is essential for having a proper factual debate. Because in direct democracy the Yes or No at the ballot may be an integral issue, but the overall debates throughout the country – at the regulars’ tables, in panel discussions, in media discussions or letters to the editor – are much more important to move us forward in terms of peoples’ rights.”

Popular initiatives, the Magna charta libertatum of the Swiss people

By the way, 125 years ago quite similar arguments against elaborated popular initiative texts had already been put forward: “Members of parliament and government warn vividly against the danger of an ‘unlimited confusion and faulty legislation’. The new instrument would lead to demagogy, it was claimed, the new initiative were ‘anarchic’ in that it allowed to ‘get to the people behind the backs of the officials’.” (Katharina Fontana⁷)
Nevertheless, the government approved the elaborated popular initiative in 1890, but only after the Councillor of States had supported it. Professor Andreas Kley endorsed the statement of one of the catholic-conservative MPs who won their battle for the peoples law-making initiative against a liberal parlamentarian majority:
“It is still entirely true today what Councillor of States Theodor Wirz, a crucial proponent of the popular initiative, had argued in 1890. Wirz had critizised the ‘egomaniacal’ parliament, especially the federal one, and posed the rhetorical question: ‘Is there any right of the people today which had not at some point been regarded as dangerous and revolutionary by previous curators of the people? Who is supposed to be the King and ruler in this country?’ Wirz and a majority of the Councillor of States rejected the restriction to a right to make merely unspecific suggestions. They emphasized that it was ‹a point of honour for the Councillor of States that it placed the Magna charta libertatum into the hands of the Swiss people much more approvingly than the federal government.’”⁸
For 125 years the “Magna Charta” of political freedom of the Swiss people has enabled the people to debate in political parties, associations and numerous other kinds of groups of citizens about political and social questions, and to make their minds up for or against hundreds of popular initiatives. This way the electorate contributes to the development of the Swiss model in its own activity and ensures its highest possible acceptance throughout the population.    •

1    cf. Roca, René. Wenn die Volkssouveränität wirklich eine Wahrheit werden soll … Die schweizerische direkte Demokratie in Theorie und Praxis. Das Beispiel des Kantons Luzern, “Schriften zur Demokratieforschung”, Vol. 6, Zurich-Basel-Genva 2012
2    chair in public law, history of the constitution as well as philosophy of state and law, Zürich University
3    chair of state and administrative law as well as public law, Berne University
4    chair of state, administrative and European law, with special regard of questions of democracy, Zurich University
5    Fontana, Katharina. “125 Jahre Volksinitiative. Keine Zähmung nötig”, in: “Neue Zürcher Zeitung” from 9.7.2016
6    There are currently about 1.4 million EU citizens living in Switzerland, while in the whole union only 15.3 million EU citizens were living in a country other than their native one in 2015. This is even more remarkable considering that Switzerland is about 60 times smaller than the Union with just 8 million inhabitants.
7    Fontana, Katharina. “125 Jahre Volksinitiative. Keine Zähmung nötig”, in: “Neue Zürcher Zeitung” from 9.7.2016
8    Kley, Andreas Kley. “125 Jahre eidgenössische Volksinitiative. Die Magna charta libertatum des Schweizervolkes”, www.news.uzh.ch/de/articles/2016/125-Jahre-Volksinitiative.html

The question posed by the host in the beginning: ”Is the Swiss popular initiative a success story?“ was answered positively by all participants of the panel.

“I would look after the peoples initiative, and very carefully so”

“For me the popular initiative is the most important success factor of the Swiss model, the one factor guaranteeing stability of the country. There are exponents who challenge this right, I think this would be misleading. I would rather enhance democratic rights in Switzerland. I would change nothing in the system of direct democracy. I would look after the popular initiative, and very carefully so.“ (Councillor of States Thomas Minder, entrepreneur, no party affiliation, SH)

What has proven to be beneficial at the communal and cantonal levels will work at the federal level, too

”Of-course the popular initiative is a success. It Is absolutely constructive for our legal and political system, for our consensus based democracy. What has proven to be beneficial at the communal and cantonal levels will work at the federal level, too. It has a huge impact, not only if it succeeds at the ballot, but also as a foundation for further work.“ (Councillor of States Hans Stöckli, proponent, SP BE)

It provides an instrument for us not to be at the mercy of the officials

“For me, too, the popular initiative is the pearl of direct democracy in Switzerland. Why is it so important? Because it provides an instrument for us not to be at the mercy of the officials. It protects us against real or imagined feelings of powerlessness or loss of control. This is psychologically very important. Because we know, if we want to, we can make ourselves heard at some point, this keeps us calm.“
(Prof Dr Markus Müller)