The assessment of the validity of popular initiatives being a matter of the Parliament

Interview with State Councillor Thomas Minder (no party affiliation, SH)

Current Concerns: In the panel discussion, a «impartial» Constitutional Court was mentioned which should assess the validity of popular initiatives instead of the Federal Court. Can you imagine that?

State Councillor Thomas Minder: I am opposed to the Constitutional Court. We, the Parliament, must take on the task of evaluating people‘s initiatives. This involves a legal consideration. It bothers me for example – although I myself have not supported the inheritance tax initiative – that in the Council of States 13 votes were for invalidity of this initiative because of the retroactivity. [The initiative envisaged that donations retroactively should be attributed to the estate from 1st January 2012.] That may not happen. Even if we personally do not like an initiative, the legal assessment is something different. Apparently, some members of Parliament cannot drop their party colours and restrict to a purely legal analysis.
There are three reasons for the invalidity of popular initiatives in the Federal Constitution of the Swiss Confederation [FC], which are clear. [Violation of the unity of form, the unit of matter or mandatory provisions of international law, FC Article 139 paragraph 3] In fact there is a fourth, the infeasibility but the retroactivity is no reason for invalidity. The inheritance tax initiative had to be declared valid, and that proved positive in the voting fight: the bourgeois parties were able to use the retroactivity clause as an argument against it.
In Parliament, we do not apply always the same standards we apply to popular initiatives. We have already decided laws in Berne with retroactive validity – that is also unpleasant. But can you declare an initiative void for that? Of course we members of Parliament are elected by the people and have our tasks, but we must do them carefully. To declare an initiative void for which 100,000 or more signatures have been collected with an invalid reason which is not in the Federal Constitution – then we have fulfilled our job in federal Berne very badly.

Collecting signatures is not getting any easier

Apparently, the elite not only resists against the people‘s rights since recently. Today, we have heard from Professor Kley that this was also the case in the early days of the state.

I cannot tell exactly, but today we have a dangerous movement. In the National Council we have Martin Landolt (BDP GL), Martin Candinas (CVP GR), Karl Vogler (CSP OW), in the Council of States for example Filippo Lombardi (CVP TI) and Hans Stöckli (SP BE) which want to limit the people’s rights.

One of the proposals is to increase the signature number for popular initiatives by a minimum percentage of the population and to enshrine it in the Constitution. What do you say to this?

The proposed percentage would result in an increase of 100,000 signatures on up to 250,000. I don‘t like these trends. In the popular vote, such a proposal has no chances of course. It needs the majority of the population and of the states. The ideas are on the table, several motions to the restriction of people’s rights have been filed in the Parliament. A motion by National Councilor Ruedi Lustenberger – for the inadmissibility of retroactivity clauses in popular initiatives – has been adopted in the National Council and has also sympathies in the Council of States. It will fail at the ballot box.

Doesn’t National Councillor Landolt endanger his re-election by increasing the number of signatures so much?

Yes, it’s quite brave if he wants to stipulate 200,000 or 250,000 signatures. I understand the idea that today in Switzerland we are more inhabitants than in the past. But one forgets that we previously could be in front of the polling station to collect; all went to the polls to vote [today a high percentage of votes are by mail], and we knew that all voters were from the same commune. The collection was even easier than it is today. If you collect today, for example in Zurich on the road, then 30 percent are foreigners and for the others you must take every time a new sheet, because they live in the Canton of Aargau or in Schaffhausen or Solothurn. It is not getting any easier to bring the signatures together.

I still like to collect near the polling stations because you get there three times as many signatures as elsewhere. But of course I agree with you: Anyone who has ever collected, knows that it takes as much time to bring together ten signatures, whether Switzerland has more or less inhabitants.

Therefore, there are now parties that pay the collectors a bit per signature. The FDP not even accomplished their first federal initiative concerning the stop of bureaucracy. So the number of signatures is not too low.

For differentiated substantive debates we need well formulated initiative texts

On the podium, the issue of “development” of the people’s right of initiative has been raised, respectively its content restriction.
Isn’t it in the end with proposals such as that of Professor Markus Müller (to abolish the initiative in the form of a specific draft, that means the literal formulation of the desired constitutional text by the initiators, and to permit only initiatives in the form of a general proposal) about that the people hampers – for example on the march into the EU?

For this purpose the right of the people’s initiative has been launched in 1891, it is in deed a disturbing factor in the political operation. Each initiative includes a certain disenchantment, so to say a public dissatisfaction with the policy of the authorities. Even with Brexit one has felt it. But to blame the British people, they would not know what they are voting or what the EU is – so you cannot deal with the citizens! I feel in the contrary, that the people has an incredibly good sensorium, is very well informed. If you look into the blogs, you realise how citizens are informed also about difficult issues.
I clearly do not represent the position of Mr Müller. The possibility of fully formulated initiative texts is necessary because we can only then discuss contentwise on a theme. Because in the direct democracy in Switzerland, the yes or no at the ballot box is although a substantial portion – but much more important for the development of people‘s rights is the whole debate in the country, which takes place down the pubs, with panel discussions, in disputes in the media, in reader’s letters. If we could vote only on general suggestions, everything would be somewhere in a cloud, so that we could not discuss effectively. If I had had to formulate my initiative1 in the form of a general proposal, then the people would perhaps today not even know what a corporation is or what “listed entitiy” means.

Your initiative “against rip-off salaries” for example, was contentwise very demanding …

But even in this case, someone may decide entirely according to instinct – we are only humans. Some analyse such a question and read the ballot booklet with the right hemisphere, but it is also legitimate to say Yes or No according to instinct. In interpersonal relationships, the inner voice is often stronger than the rational level, where you play off everything against each other.
The inner voice, the “sentiment” that one can say Yes or No from sympathy or antipathy for a submission, I accept in a democracy also. Concerning Professor Müller I had a little the impression that he does not approve it.

Mr Minder, thank you for the interview. •

(Interview Marianne Wüthrich)

1    The so-called initiative “against rip-off salaries”, which was adopted in the referendum of 3 March 2013 and with which the entrepreneur Thomas Minder got so well known and by virtue of which he was so very much appreciated that he was in autumn 2015 – although not belonging to any political party! – elected by the Schaffhausen people from the stand into the Council of States.