The initiative “Swiss law, not foreign judges” (“Self-determination Initiative”) formulates a constitutional principle that makes sense to every democrat. The constitution of one’s own country is the foundation of the rule of law, both internally and externally. Acting as part of the sovereign, you do not conclude any international treaty that contradicts your own state constitution.
The reason for the initiative is that our Federal Supreme Court has for some time now no longer been willing to fully observe this principle.
Since the European Enlightenment, the separation of powers has been a central foundation of a democratic state under the rule of law, alongside popular sovereignty. In 2012, the Swiss Federal Supreme Court carried out a grave paradigm shift by declaring that in the future international law would take precedence over Swiss national law, i.e. the Federal Constitution. The Federal Supreme Court states: “If there is a genuine conflict of laws between federal and international law, Switzerland’s obligation under international law takes precedence; this even applies to agreements that do not concern human rights or fundamental freedoms”.1 Without discussion and federal vote, the Federal Supreme Court thus disregards the principle of the separation of powers and places itself autocratically above the people, parliament and government.
Former Federal Councillor Arnold Koller still describes the last total revision of the Federal Constitution of 1999 as a “mere tracking” to this day. However, shortly after the new Federal Constitution was adopted, distinguished lawyers predicted that “no stone will remain on the other” with regard to our political system. Article 5 of the current Federal Constitution states: “The Confederation and the Cantons shall respect international law”. Nowhere is there a qualification of exactly what is meant by “international law”; there has never been a clarification about the relationship of the Federal Constitution to international law nor a debate on it. The clique of judges now wants to autocratically tell us how Article 5 of the Constitution should be interpreted. The aim is to subject Switzerland to international standards, some of which are ideologically determined. And all of this is just “tracking”…?
The fact that the self-determination initiative endangers human rights is absurd. On the contrary, the initiative restores the legitimate relationship between national law and international law. This discussion is necessary and finally concretizes the aforementioned Article 5 of our Federal Constitution.
The whole development towards a Swiss federal state would not have been possible without the observance and implementation of human rights, even if not everything was perfect from the outset and the women’s right to vote was introduced far too late. Until the last total revision of the Federal Constitution in 1999, human rights were at best mentioned individually, but not in their entirety. This did not mean that they were not the basis of the state, they were “implicitly” part of the constitution. The constitutional lawyers knew this at the time, and the Federal Supreme Court interpreted the constitution and laws accordingly.
Without human rights, Switzerland would not have developed such a unique and impressive model of state in the 19th century, especially with direct democracy, that is unparalleled anywhere in the world. Switzerland’s model is admired abroad by all political camps precisely because of its co-determination rights, and the Swiss Confederation regularly serves as a role model when a country struggles for more participation.
That the self-determination initiative negates international law is equally absurd. Switzerland continues to make decisive advances in international law, for which there is no need for an article in the Federal Constitution. It has established international humanitarian law (Red Cross, ICRC) and is still a signatory state and thus guardian of the Geneva Conventions. As a neutral state, Switzerland has a vested interest in ensuring that countries adhere to general international law (e.g. the UN Charter) and humanitarian law, but this is repeatedly sacrificed to power politics. However, Switzerland is not involved in this.
Direct democracy also serves to uncover and, if possible, remedy wrongs and shortcomings. This includes raising awareness of state policy principles such as the requirement that national law – i.e. the constitution – be above international treaties.
The events surrounding the “Mass Immigration Initiative” and the sellout in the form of “Priority for Swiss Nationals Light” have made it clear that the disregard for the will of the people is taken into consideration by a part of our political elite. This example clearly showed that certain politicians now act in accordance with the Federal Supreme Court and give greater weight to international law (in this case the free movement of persons) than to the Federal Constitution and thus to a referendum.
Such processes must in future be prevented with the adoption of the initiative, as otherwise our direct democracy and the will of the people will be laid to rest. •
1 Federal Court decisions 2012, judgement 2C_828/2011 of 12.10.2012 (www.servat.unibe.ch/dfr/dfr_bger2012.html)
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