Safeguarding the Swiss state model

Safeguarding the Swiss state model

Popular initiative “Swiss law instead of foreign judges” (Self-Determination Initiative)

by Dr iur. Marianne Wüthrich

“The Constitution is the primay source of law of the Swiss Confederation.” […] It is above international law and takes precedence over it.” Thus is the core of the initiative. The rest of its content results from this principle. (initiative text see box).
Actually a matter of course in direct democratic Switzerland, where the people are the supreme lawmakers. And yet an outcry goes through politics, business and media: The initiative is an “attack on human rights”, was heard in Parliament; Switzerland would become an unreliable contracting partner.
What is the aim of the initiative and how are these objections to be classified? These two questions will be explained here.

The Self-Determination Initiative demands nothing revolutionary, but only wants to retrieve what is already enshrined in the Constitution.

Aim of the Self-Determination Initiative

Popular initiatives adopted at the polls by the people and the cantons, shall be incorporated into the Federal Constitution as new legal norms, to be transposed by the plenum into corresponding laws and applied by the courts and the administration. This implementation of the will of the people as sovereign, as the supreme state authority, is also being questioned with increasing severity in many media. The Self-Determination Initiative has been taken to commit the Swiss authorities to direct democracy as a cornerstone of the Swiss state structure again.
“International law”, to which the provisions of the Constitution are to be superordinate, refers to international agreements such as the Agreement on the Free Movement of Persons with the EU or the European Convention on Human rights (ECHR) and its excessive interpretation by the European Court on Human Rights (ECtHR). The Federal Council, Parliament and Federal Supreme Court should no longer be allowed to ignore constitutional articles set by the sovereign, such as the deportation of criminal foreigners or the control of immigration, simply because their application would not suit the judges in Strasbourg or the EU Commission. The initiative is also directed against the planned institutional framework agreement: its intention to make future EU law into Swiss law by bypassing the sovereign contradicts the basic principle of the directdemocratic Constitution. This would paralyse the right of initiative and referendum in many areas.

Why the massive counter campaign? Memories of the EEA No in 1992

It is amazing what terrible consequences the opponents paint on the wall if the Self-Determination Initiative were adopted. Do you remember the vote in 1992 when the Swiss people rejected accession to the EEA? The Swiss economy would collapse, warned the EU applicants (Federal Councillor Adolf Ogi had praised the EEA as a “training camp” for EU accession). The gloomy prophesies, however, did not come true. On the contrary, Switzerland is doing better than most European countries, not primarily because of the bilateral treaties, but because it is still much more independent in its sovereignty than others, despite many compromises on the sovereignty. This is due in particular to direct democracy – which does not suit everyone. Because the electorate disturbs the plans of the classe politique and the major international corporations, a constant propaganda carpet has been laid against all attempts to prevent Switzerland from opening up without borders and to preserve its sovereignty and direct democracy, since the EEA No.
One must have this history in mind if one is to read the misleading and sometimes monstrous statements of the opponents of the Self-Determination Initiative.
A spokeswoman in the National Council has no hesitation in demonstrating that she wants direct democracy to the Pepperland: The Swiss People’s Party (SVP) demands that its initiatives be implemented, even if they violate international and human rights norms. It’s like people’s dictatorship.” (Martina Munz, emphasises mw). And Cédric Wermuth even makes a comparison with Robbespierre’s terror, which he justified with the fact that “he is democratically legitimised by the majority of the population […] That’s exactly the spirit the Self-Determination Initiative breathes.” (Minutes of the National Council from 6 June 2018)
Let us be glad that such “representatives of the people” are not authorised to invalidate a popular initiative only because they have a different opinion than the initiators!
   The Federal Council expresses itself more moderately, but also aims to weaken direct democracy: “What is clear is that the initiative constantly calls into question Switzerland’s international obligations. As soon as there is a contradiction between a constitutional provision and an international treaty, Switzerland should negotiate the treaty and, if necessary, terminate it. Furthermore, the Self-Determination Initiative restricts the scope of action of the Federal Council and Parliament in the implementation of constitutional provisions that conflict with international law. Unlike in the past, the Federal Council and Parliament could no longer pragmatically seek broad-based solutions rights’ […].” (Federal Council press release from 6 July 2017)
The Federal Council thus turns the skewer by 180°. Yes, it has a duty to renegotiate treaties that contradict the Constitution (or, to put it less dramatically, to make a reservation, to propose an additional protocol). The initiative specifically turns against so-called “pragmatic solutions” against the will of the people, as the law on the constitutional article “Control of Immigration”, the Federal Council and Parliament have written after the dictate of the EU Commission. On the other hand, to accuse the initiators of wanting to question all treaties with foreign countries is downright absurd.

Self-Determination Initiative stops “opening of Switzerland” towards the EU

The initiative was economically hostile, was heard in Parliament (for example in the Council of States according to sda report from 13 March). Or more specifically on swissmem’s “European- political platform”: “Over 600 economic agreements would be endangered” – it couldn’t be more absurd! As if the initiators wanted to dismantle the economic location – where the voters as entrepreneurs and employees stand in the middle of the economy! Here it becomes crystal clear why the UE turbos are getting so nervous: The vote will be ground breaking for further European polls: Does Switzerland remain on the bilateral path [i.e. the conclusion of the planned anti-democratic framework agreement, addition mw] or is it turning away from Europe?” (swissmem)
As if any Swiss wanted to “turn away from Europe”! Our country lies in the middle of Europe and has always been economically and culturally connected with our neighbouring countries and the other peoples of Europe and the world. This is exactly what the Self-Determination Initiative demands: It does not want an “opening of Switzerland” at the expense of the political rights of citizens. It demands that the Federal Council does not forget which side of the table it sits on when negotiating with the EU, that the National Council and the Council of States do not let Brussels guide their legislation, and from the Federal Supreme Court, that it feels committed to the Federal Constitution in the first place and that it speaks law independently of Brussels and Strasbourg.

Legal certainty for whom?

The initiative shows a viable way to preserve not only direct democracy but also stability and legal security. It is astonishing that some people still believe that submission to EU law brings more legal certainty – even though we have already seen several times that Brussels has taken completely arbitrary sanctions against Switzerland, contrary to the bilateral treaties, if we only say out loud that we want to negotiate another regulation.
Or do the managements of the internationally oriented large corporations – which are often little familiar with the directdemocratic Swiss Constitution – think of another “legal certainty”? Closer integration into a legal system dictated by the US, OECD and EU? Among equal partners – and Switzerland would do well to act on an equal footing with other states or groups of states – it must be possible to be active in international relations while still preserving one’s own legal system. This is what the initiative wants to bring back.

No attack on the European Convention of Human Rights (ECHR)…

The propaganda in the two councils was downright grotesque, the initiative would question the guarantee of human rights. In the National Council it was even renamed the “Anti-Human Rights Initiative” (sda report from 30 May). Already a year ago, the Federal Council had claimed that the adoption of the initiative could lead to a situation where Switzerland could “permanently and systematically no longer apply” the provisions of the European Convention on Human Rights (ECHR), and that it could therefore be excluded from the Council of Europe (media release from 6 July 2017).
One might think that before the ratification of the EMRK by Switzerland in 1974, human rights would have been unknown here. The initiators oppose this: Switzerland has long guaranteed human and fundamental rights in its Constitution. The initiative has nothing to do with an attack on them, on the contrary. The aim of the Self-Determination Initiative is to protect them by Swiss judges who, in contrast to the judges from Strasbourg and Luxembourg, are familiar with Swiss conditions and know the value of our democratic order. It is easy to forget that all human rights enshrined in international law are enshrined in the Swiss Federal Constitution under the designation ‘fundamental rights’ […].” (Argumentarium popular initiative Swiss law instead of foreign judges, “Self-Determination Initiative” from 10 March 2015).
After the horrors of the Second World War, the ECHR was issued as a link between the former war states and to guarantee each other the most basic human rights, which had been so terribly disregarded. For Switzerland, guaranteeing the fundamental rights mentioned in the ECHR was so self-evident that accession was seen more as an expression of solidarity with the other European states and was therefore not subject to a referendum. Furthermore there were and are no Swiss who object the ECHR. Also the initiators do not strive for a denunciation of the ECHR, because they have nothing to object about its basic rights catalogue. They only want to discuss a reservation in the form of a further additional protocol (there are already numerous amendments, reservations and additional protocols to the ECHR). Other states would probably gladly follow suit.

…but a lance against the interference of the ECtHR

In 1998 – also without the right to a referendum – the right of appeal of states was extended to each individual person against a member state, and the “European Court of Human Rights ECtHR” was created in Strasbourg as a permanent court. Since then, cases have increased exponentially. Tens of thousands of pending cases are awaiting today, and the interpretation of the individual rights of the ECHR by a chamber of judges from different European states without knowledge of the defendant state and its legal culture, leads time and again to most questionable results. The crucifix decision against Italy is well remembered, according to which it should be prohibited in all Italian schools to hang a crucifix on the wall, in order to allegedly protect freedom of religion (Art. 9 ECHR). After a storm of protest in Catholic Italy and the refusal of the government in Rome to enforce the verdict, the court had to back-out.
There are also a number of decisions against Switzerland that are far removed from reality. The fact that one of the 47 judges is a Swiss, is of little use to us because she often takes the side of the “victim”. As a rule, even if a complaint is rejected, Switzerland has to pay the court and lawyer’s fees if the complainant is destitute or an asylum seeker. Some judgements concern the expulsion of foreign criminals, whose right to respect for private and family life (Art. 8 ECHR) is protected by the court even if they do not lead a regulated family life in Switzerland and live on social welfare (e.g. judgment from 16 April 2013). When the ECtHR condemned Switzerland for violating the freedom of association, even the Swiss federal judges expressed their incomprehension: The Geneva authorities had dissolved an association with the illegal purpose of occupying houses. This strict measure, with far-reaching financial consequences for the squatters, is supposedly affecting the freedom of association in its substance (verdict from 11 October 2011). In the opinion of the “Human rights” Court in Strasbourg, the following also belongs to the protection of private life, namely the citizen’s right to a clear state regulation on suicide assistance (judgment from 14 May 2013). A particularly dubious decision: A protection of the fundamental rights, which deserves its name, must protect life in the first place, not dying!
Enough of the examples of jurisprudence that have lost touch. The own state courts (not only in Switzerland!) are in a much better position to judge where the protection of the human rights of a citizen vis-à-vis the state is to be guaranteed and where it is not adequate. Finally, it is interesting to note that the EU has been opposing accession to the ECHR for years, because it would violate the autonomy of Union law if the Court of Justice in Strasbourg were to rule over the supreme court of the EU, the ECJ, and review its judgments: (<link https: typo3 juris external-link seite:> This is precisely the standpoint of the Self-Determination Initiative: It violates the autonomy of Swiss law if a foreign court judges the federal judgments with binding effect.    •

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

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.

Art. 197 subparagraph 124

12    Transitional provision to Art. 5 para. 1 and 4 (Principles of rule of law), Art. 56a (Obligations under international law) and Art. 190 (Applicable Law)
    Upon their adoption by the people and the cantons, Articles 5(1) and (4), 56a and 190 shall apply to all existing and future provisions of the Federal Constitution and to all existing and future obligations of the Confederation and the cantons under international law.

(Translation Current Concerns)

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