The argumentation against the popular initiative “Swiss law, not foreign judges” (Self-determination Initiative) has – once again before a referendum – reached an unspeakable degree of alarmist unobjectivity. The opponents of the initiative are conjuring up the downfall of Switzerland, its “encapsulation” and “isolation” in economic areas, the decline of legal certainty and even our moral decline in the area of human rights. Since the initiative was launched by the SVP (Swiss People’s Party), the ban on thinking “This comes from the SVP” should already have an effect on many people.
It is obviously no longer a question of facts, but of creating a mood among voters with arbitrarily inflated arguments. This is the real threat to democracy. Because democracy can function only honestly, if all bases of a decision are present objectively correct. Threats and scenarios of economic downfall are not part of it. Just one thought in advance: Switzerland already existed before 2012. As is well known, the reason for the initiative was a federal court decision in 2012, which turned the previously observed principle of the primacy of the constitution upside down and which the initiative is only intended to bring back. We were not doing too badly six years ago. The economy also was performing quite well back then.
The initiative demands that the Swiss federal constitution take precedence over non-binding international law. The prohibition of violence, the prohibition of torture, the provisions of international humanitarian law and procedural rights are therefore not affected by the initiative. However, the majority of international agreements are agreements that have nothing to do with such fundamental agreements: These include agreements on diplomatic relations, technical agreements and much more. But also more far-reaching agreements on trade relations. They are concluded by the “Federal Council, the departments, groups or federal offices”, like the Federal Council writes. Thus the Federal Council listed in its “Report on the international treaties concluded in 2016” to the federal assembly a total of 526 such international treaties for 2015 and 461 treaties for 2016. In addition, 346 treaty amendments are mentioned for 2015 and 352 for the following year (cf. BBI 2017, p. 4594f.). In addition, there are further agreements that the Federal Council does not have to list, as they are subject to ratification by parliament and are therefore known to it.
Why all this should be above the federal constitution is incomprehensible. The fact that the federal offices and the Federal Council want to seize a constitutional right that is contradictory to any separation of powers, over and above the legislative and sovereign, contradicts any basic democratic understanding.
In other countries, it is a matter of course that their own constitution takes precedence over international law. In most countries, international agreements first have to be converted into a national law and, as such, remain subordinate to the constitution, which always overrides legislation.
The “supplementary report of the Federal Council to its report of 5 March 2010 on the relationship between international law and federal state law of 30 March 2011” also states that the Federal Council assumes the primacy of more recent constitutional law – i.e. amendments to the federal constitution, for example by a popular initiative – and justifies this “with Article 190 of the federal constitution, which prevents the courts from substituting their own weighing of interests for the consideration of the legislature”. If the decisions of the legislature are already binding on the courts, this must apply all the more to the decisions of the constitutional legislature, which are democratically even more strongly legitimised”. (www.admin.ch/opc/de/federal-gazette/2011/3613.pdf (BBI p. 3658)
The lawyer Katharina Fontana, long-time federal court rapporteur for the “Neue Zürcher Zeitung”, today at Weltwoche, also points this out: In 2012, the federal office of justice was still quoted as saying: “In conflicts between a new constitutional provision and international law ‘in the view of the Federal Council the more recent constitutional provision prevails’, the office wrote. And he continues: ‘This means that [...] contradictory obligations under international law must be renegotiated whenever possible or, if necessary, terminated. That is exactly what the self-determination initiative demands and what for a long time was the dominant opinion.” (Fontana, Katharina. Tutoring from the director. Weltwoche from 26 September 2018)
As the Federal Council itself writes in 2011, it is unacceptable that the basis of our state coexistence should be determined by a few individual judges. Judges are in principle bound by the law – they should ensure that it is observed. Legislation, especially at the constitutional level, is reserved for a different power.
What the self-determination initiative demands was therefore customary practice in Switzerland until 2012. Until 2012, when five judges of the federal supreme court turned this previously valid order upside down with a majority of one vote – three to two – (see also René Roca’s article below).
The argumentation of the opponents, obviously relying only on scaremongering, is unobjective, because everyone knows what fact is: Switzerland has neither been isolated under international law nor economically endangered, nor has it been shunned because of legal uncertainty. On the contrary.
On the other hand, it should go without saying that international treaties can always be reconsidered. The world is developing, the problems are changing, the solutions must be adaptable accordingly.
Human rights are not affected by the initiative, because the provisions of the ECHR are fully contained in the federal constitution. Luzius Theiler (GPB-DA), a long-time Green politician, writes in Europa-Magazin, which sees itself as critical of the EU, ecological and social: “Incidentally, it is a fact that not only all the principles of the ECHR are also contained in the catalogue of fundamental rights of the Swiss federal constitution, but that the constitution goes beyond them in important respects.” (Theiler, Luzius. Switzerland and international law. Europa Magazin from 9 October 2017)
It is also a fact that fundamental human rights, such as equal participation in decisions on coexistence that directly affect everyone, have been realized to an extent that is unparalleled in direct democracy in Switzerland. It is precisely this freedom that constitutes human dignity.
This right also justifies majority decision-making. The fact that majorities can also be wrong is not an argument against it. “As an argument against majority decisions, this objection only makes sense if one is of the opinion that there is a minority that cannot be mistaken. That is obviously nonsense. […] Majority decisions are quite simply the result of the human right to equal participation in decision-making processes. Majority decisions take into account the opinion of more people than decisions by minorities.” (Ruppen, Paul. Democracy and international legal order. Europa-Magazin from 9 October 2017) With direct democracy and the primacy of the constitution above all the possible, the population nevertheless has the opportunity to become active itself and to correct any undesirable developments. Abolishing this corrective cannot serve the common good.
Above all, it is the representatives of certain economic interests – by no means “the” economy, which also includes numerous local companies such as SMEs, etc. – who loudly argue with the danger of a loss of legal certainty in international affairs. It would disadvantage Swiss companies who wanted to plan for the long term and who would no longer be able to guarantee compliance with international treaties if the initiative were adopted. There was even a threat that more than 600 contracts would have to be renegotiated. After specific questioning and repeated digging deeper in an interview with a journalist, Federal Councillor Simonetta Sommaruga finally referred to the moratorium on genetic engineering, which would be incompatible with the WTO rules of international free trade agreements (see “Basler-Zeitung” from 2 October 2018). – The moratorium is supported by broad sections of the population; it has been in force since 2005 and was only extended again in 2017 (!).
This is, after all, a clear indication of what it is really about. Free trade at any price cannot, in any case, be the motto. From a point of view oriented towards the common good, there are certainly reasons to restrict international trade. Incidentally, this would be a concern that is not SVP-specific at all. Paul Ruppen, president of the Forum for Direct Democracy, who has already been quoted, continues: “Most opponents of the initiative are less concerned with human rights than with being able to conduct their international business as unhindered as possible by democratic influences and to be able to shape the corresponding international rules according to their own interests as far as possible without too much democratic interference”.
These concerns not only come from the “left” side, but are also shared by liberals and business personalities such as Rolf Dörig, president of the Swiss Insurance Association and chairman of the boards of directors of the Adecco Group and Swiss Life. In 2002, for example, in the “Neue Zürcher Zeitung”, he expressed the same opinion about “many, too many business leaders”: “Uncontrolled globalisation, the neo-liberal market and competition as the only valid maxims were their desired objectives”. And in a text based on a speech at the EDA Ambassadors’ Conference on 2 May 2018 he warned in connection with a framework agreement: “It’s not just about the economy and market access, it’s about our society and thus about the foundations of our country. It is about central values such as freedom, independence, direct democracy and federalism. In these sensitive areas we not only have a few thin red lines, but double red security lines. […] We all know that we enjoy two advantages in this nation of will: more personal freedom and more political participation and self-determination.” (cf. guest commentary in the “Neue Zürcher Zeitung” from 18 May 2018)
The tendency to curb the influence of the citizens of the states and restrict basic democratic rights in favour of control over the financial power of transnational corporations and the financial “industry” is a development in the wrong direction. The economy should serve the people – not the profit maximization of a few. Nor is it intended to use financial power to steer votes. The fact that economiesuisse is now distributing 2.2 million voting newspapers throughout Switzerland, i.e. in practically every household, is something it can of course do. At least, it is clear which interests are really involved here. But ultimately it is not necessary or sensible for the majority of the Swiss economy either.
Contrary to all objections to this initiative, we actually know: It is the realisation of the self-determination of our community that comes closest to respect for fundamental human rights and human dignity. And it is precisely for this reason that direct democracy has given our country a degree of inner peace and legal security that many envy. Let us take care of it. •
ev. With all due understanding for the concerns of the economy, the developments of recent years and decades are indeed heading in a direction that is neither conducive to life nor compatible with the common good. The 2018 distribution report of the Swiss Federation of Trade Unions lets you pause and ask yourself: Is that supposed to be Switzerland’s way? It lists, for example, how Switzerland’s wealth has developed in recent years, and unfortunately it is following the global trend towards concentration of wealth in fewer and fewer hands. According to this report, the richest one per cent of taxpayers in Switzerland had more than 41.9% of private net assets in 2014. Ten years earlier, the figure was still around 35%. Shouldn’t developement tend in the opposite direction?
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