Who’s in charge in this country?

by Dr iur Marianne Wüthrich

The people, the sovereign is in charge in direct democratic Switzerland, so State Councillor Ivo Bischofberger and many other State and National Councillors say when it came to the question whether a Swiss Constitutional Court should be set above the sovereign. With this justification Parliament has clearly refused the introduction of a constitutional jurisdiction at federal level in 2012 as the people has in earlier times.
The sovereign as supreme state violence – this fundamental pillar of Swiss state structure – is being questioned for several years by certain circles in politics and justice with increasing sharpness.
To commit the Swiss courts and administrative authorities again on this cornerstone the “Self-determination initiative” has been launched wherefore the signatures are currently being collected (deadline for collection: 10 Sept. 2016). From this consideration, the initiative requires that for the law-applying authorities the Federal Constitution is prior to international law, of course with the exception of the mandatory provisions of international law. “International law” means international agreements as for example the bilateral agreements with the EU or the ECHR (European Convention on Human Rights) which would have to be renegotiated so that the law set by the sovereign may be applicated.
The initiative is said to be a «frontal attack on our fundamental rights» and leads to “Switzerland’s incapacity to act”, so the frontal attack of the opponents.
You must know the initiative’s background to be able to classify politically the insubstantiality of these claims.
About ECHR: As National Councillor Lukas Reimann declared in the interview the ECtHR (European Court of Human Rights) was founded after the horrors of the Second World War and the ECHR at the time denounced war crimes and very basic human rights’ violations. Switzerland signed in 1974. At that time the Parliament discussed if the ECHR should be subordinated to an optional referendum and decided against it because all fundamental rights which are part in this important international treaty were already enshrined in the Federal Constitution and have been applied in Switzerland for a long time. Today, the Court has expanded its jurisdiction on anything and everything, so Lukas Reimann, and interferes in unsustainable manner into the national legislation and case-law. No Swiss, neither the initiators want to cancel the ECHR, because its content corresponds also with the Swiss legal opinion. The Self-determination initiative just wants to stop the excessive case-law of the European Court of Human Rights with the help of a additional protocol to be negotiated and probably several other States will gladly join.
About the bilateral treaties with the EU: The initiative requires that Switzerland should not enter into international commitments that are against the Federal Constitution. In case of a conflict for example, Switzerland should no longer as previously follow new EU law and the current case-law of the CJEU (Court of Justice of the European Union, Supreme Court of the EU), but adapt the bilateral agreements to the Federal Constitution. This would not lead to “Switzerland’s incapacity to act” as the opponents of the initiative say – quite the contrary: Switzerland would finally again really able to act as a self-determinant, sovereign state. On the basis of direct democracy. But if the bewailed “incapacity” means that the Swiss electorate can continually prevent the ever-closer integration and finally the accession to the EU then nothing is wrong with it.
With the “Self-determination initiative”, the skew bars of the Swiss House will be restored to a solid foundation. We citizens are called to obligate our authorities and courts again to their constitutional tasks.