by Dr iur. Marianne Wüthrich
The claim of being discriminated against, for example because of gender, is booming today. For example, a Swiss military conscript who hopes to bring down the constitutional requirement for Swiss men to perform military service with the help of the European Court of Human Rights (ECHR) in Strasbourg, invokes Article 8 of the Swiss Federal Constitution on equality of rights, especially its paragraph 3: “Men and women have equal rights. [...]”
The same Federal Constitution article, but from a different point of view, is the basis for the National Councillors and Councillors of States who, in the recently concluded winter session of parliament, opposed the increase in the Old-Age and Survivors’ Insurance (OASI) retirement age for women from 64 to 65 and thus the alignment with the retirement age for men.
These two different ways of obtaining legal justice will be briefly outlined and critically examined.
The militia army, as an expression of armed neutrality and as a civic duty in direct democracy, is one of the cornerstones of the Swiss state system. According to Article 59, paragraph 1 of the Federal Constitution, every Swiss man is required to do military service, i.e., in addition to his profession he must serve in the army, in alternative civilian service or, in some cases, in civil protection. For Swiss women, military or civilian service is voluntary (Federal Constitution, Article 59, paragraph 2). This regulation does not correspond to today’s common understanding of gender equality, but it is stated in the constitution as it has developed historically, and the vast majority of men do not feel “discriminated against” because of their compulsory service.
Walk the democratic path or going to Strasbourg?
If there is a desire to change this order, Swiss voters have the instrument of popular initiative at their disposal. This instrument was seized by the GSoA (Group Switzerland without an Army) in 1989 with its army abolition initiative. Almost two thirds of the voters rejected the initiative. Since then, the GSoA has been involved whenever an opportunity arose to further weaken the army, which is unfortunately already severely reduced. This is the case with the current initiative against the purchase of F-35 fighter jets from the USA – a real dilemma for supporters of the Swiss army who are at the same time opponents of ever closer integration into the US-dominated NATO. The GSoA is not my coffee house, but it uses its direct democratic rights.
The Swiss M. K., on the other hand, took the legal course to undermine compulsory military service. After he had been found unfit for service, he had to pay the annual military service exemption tax. He appealed unsuccessfully against the bill for 2014 (amounting to CHF 1662), then appealed to the cantonal administrative court and in the end to the Federal Supreme Court “with the request that he be exempted [...] from compulsory military service or the military service exemption tax”.1
The Federal Supreme Court agreed with M. K. “that compulsory military service restricted to men (and therefore also the related obligation to pay an exemption tax) is contrary to Art. 8, para. 2 and 3 of the Federal Constitution” (recital 3.3). Subsequently, though, the Swiss Supreme Court stated: “However, Art. 59, para. 1 and 2 of the Federal Constitution expressly and intentionally restricts compulsory military service to men [...], as does Art. 61, para. 3 of the Federal Constitution for compulsory civil protection. This constitutes an exception to Art. 8, para. 2 and 3 of the Federal Constitution, which is contained in the Constitution itself.” (Recital 3.4.)
The Swiss Supreme Court continues: “Whether this regulation is objectively reasonable or whether it should be changed is not for the Federal Supreme Court, but for the constitutional legislator to decide. It is therefore unnecessary to go into detail on the complainant’s arguments that the unequal treatment is not justified.” (Recital 3.4.; emphasis added) The court thus reminded the plaintiff (a lawyer!) that the supreme power in Switzerland belongs to the sovereign and dismissed his complaint.
Plaintiff M. K. criticises the Federal Supreme Court for having decided “according to political considerations”. This is precisely what it didn’t do! It adhered to the Federal Constitution, to the law. Anyway, for M. K., going to the Federal Supreme Court was only a preliminary matter. His goal is to obtain justice at the European Court of Human Rights (ECHR) in Strasbourg and thus bring down the constitutional regulation of compulsory military service. The “Neue Zürcher Zeitung” comments: “Compulsory military service also for women or a civil service for all: Küng has no precise ideas. ‘My only concern is that a court should find that the current regulation is legally wrong.’”2
Katharina Fontana, the long-time federal court correspondent of the “Neue Zürcher Zeitung”, puts it in a nutshell: “Now you can think what you like about compulsory military service for men. One may regard it as outdated and be surprised at how unresistingly men accept their legal discrimination to this day. Another question is whether going to an international court is the right way to bring about a change. Should this question really be decided by a panel of judges in Strasbourg and not in Switzerland by parliament and the people?” As a democracy-loving Swiss, one can only agree with this. It is to be hoped – but I wouldn't risk a bet! – that the ECHR will not interfere in something as historically grown as compulsory military service in individual states. Be that as it may, we Swiss voters will still have the last word when it comes to preserving our constitutional order.
Democratic struggle for retirement age of 65 for women as well
In its recently concluded winter session, parliament passed the latest reform of the Old-Age and Survivors’ Insurance (OASI reform 21). The main topic of numerous intensive debates in the National Council and the Council of States since the spring session was the long pending increase of the retirement age for women from 64 to 65 years and thus the alignment with the retirement age for men.
In this respect, Swiss men were previously at a disadvantage: since the introduction of the OASI in 1948, they had to be 65 years old to receive a full pension, while women received their pension at 62 until 1997. Then women’s pension age was gradually raised to 63 by 2001 and to 64 by 2005. The next OASI reform proposals of the parliament as well as popular initiatives failed at the ballot box, most recently on 24 September 2017 an overly crammed package that, in addition to the women’s pension age of 65 in the OASI (the state pension), also wanted to re-regulate the pension fund (the occupational pension), combined with an increase in value added tax (VAT).
As with all pension reform proposals, the Social Democrats and the Greens, with regard to the OASI 21 reform, cited what they considered to be the de facto still existing disadvantage of women in the workplace and especially in wages to fight or at least fully cushion the pension age of 65. In doing so, they rely on Art. 8, para. 3 of the Federal Constitution: “Men and women have equal rights. The law shall ensure their equality, both in law and in practice, most particularly in the family, in education, and in the workplace. Man and woman have the right to equal pay for work of equal value.” How far this cushioning should go and how it should be financed was the subject of discussions in the two councils and led to quite a few differences between them, which were carefully argued out in numerous meetings. On 15 December, both Councils approved the proposal of the conciliation conference (compromise proposal), against the will of the Social Democrats and the Greens, who voted unanimously against and, together with the Swiss Federation of Trade Unions (SGB), have already announced a referendum against the amendment of the OASI Act.
Key points of the OASI 21 reform
It can be assumed that the referendum will take place. In 2022, we will therefore vote on a relatively lean OASI reform, the main purpose of which is to secure pensions for the next few years (the OASI will need an additional CHF 26 billion by 2030). The most important things in the parliamentary bill are the following:
In conclusion, this is an overall balanced proposal that brings the retirement age of women in line with that of men and at the same time tries to do justice to the financial needs of the AHV, but also to the claims of the affected women’s cohorts to an adequate pension. However, according to the Social Democratic Party, the Greens and the trade unions, the “planned compensations for women of the transitional generation are absolutely insufficient”.3 The referendum campaign is likely to be interesting. •
1 Federal Supreme Court. II. Public Law Division. Judgment 2C_1051/2016 of 24 August 2017
2 Fontana, Katharina. “Diskriminierte Männer: Ein Schweizer sucht sein Recht in Strassburg” [Discriminated Men: A Swiss Seeks His Rights in Strasbourg]; in: “Neue Zürcher Zeitung” of 6 December 2021
3 “SP unterstützt Referendum gegen OASI 21” [SP supports referendum against OASI 21]. Media release by the Social Democratic Party of Switzerland of 15 December 2021
From an interview with Federal Councillor Viola Amherd, Head of the Department of Defence, Civil Protection and Sport DDPS
On the so-called “vaccination controversy” in some parts of the population: “We have to be aware of how good we have it in our country. I think that we are simply spoiled. In the last decades we have always had it good. That is why we are not used to enduring such a crisis. Now is the moment to become aware of it.”
On the concept of “freedom” in the pandemic: “My freedom ends where the freedom of another begins. There is no such thing as absolute autonomy, i.e. no consideration for one’s fellow human beings. Especially those who advocate a strong concept of freedom would probably not be happy themselves if their counterpart claimed the same.”
On the principle of subsidiarity: The Federal Council is currently providing up to 2,500 members of the armed forces to support the cantons at their request. When asked why this deployment was decided only now, Viola Amherd replies: “The army is always there when it is needed. But it does not simply march in; it only becomes active upon request.”
On the militia principle: “I think the militia principle is proving itself very well in the crisis.” The paramedics with nursing training could do nursing work in the hospitals, so that the staff there had capacity for the serious cases. Soldiers with other professions could be deployed where helpers are needed. “For me, this crisis shows how excellent our model of a militia army is.”
Source: Birrer, Raphaela; Stäuble, Mario. “Schauen Sie ‘Tschugger’! Dann wissen Sie, warum es hier so viele Walliser hat”. Interview with Federal Councillor Viola Amherd
in Tages-Anzeiger of 20 December2021
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