Direct democracy facing a practical test

by Dr iur. Marianne Wüthrich

A yes vote by Swiss voters to the self-determination initiative could be an encouraging sign for other peoples to opt for a more independent path. The fact that the counter campaign is so sharp and financially powerful shows once again that such insistence on sovereignty is not appreciated by certain circles at home and abroad.
Today it shall be stated that the initiative only indirectly opposes “foreign law and foreign judges”. First and foremost, it obliges its own parliament and judges to comply with the Federal Constitution in legislation and jurisprudence, instead of speaking out for foreign powers. The individual parts of the initiative text are scrutinised here.

“The supreme power in the Confederation is the Federal Assembly, subject to the rights of the people and the cantons; at least according to the applicable constitutional law and the conventional understanding of democracy. In reality, however, the supreme power tends to be shifted to the European Court of Human Rights (ECtHR) in Strasbourg – a creeping, little-noticed, partly deliberately veiled constitutional amendment without democratic legitimation, which is therefore excluded from critical discussion. (former Federal Judge Martin Schubarth, “Neue Zürcher Zeitung” of 13.5.2013)

Democracy or judicial state?

Irrespective of their party-political origin, the self-determination initiative addresses fundamental questions about the legitimacy of state action. It touches on issues of sovereignty, but also of the separation of powers. Actually, it does not demand anything fundamentally new or unusual. The principle according to which the constitution of a country should take precedence over international agreements was undisputed for a long time and still corresponds to the practice of many countries today.

Initiative text: Art. 5 para. 1
The basis and barrier of state action is the law. (hitherto) The Federal Constitution is the supreme source of law of the Swiss Confederation. (new)
Below are three voices of different provenance on this principle:

“The supreme power in the Confederation is the Federal Assembly, subject to the rights of the people and the cantons; at least according to the applicable constitutional law and the conventional understanding of democracy. In reality, however, the supreme power tends to be shifted to the European Court of Human Rights (ECtHR) in Strasbourg – a gradual, little-noticed, partly deliberately veiled constitutional amendment without democratic legitimation, which is therefore excluded from critical discussion.” (former Federal Judge Martin Schubarth, “Neue Zürcher Zeitung” from 13 May 2013)
“It [the self-determination initiative, mw] is about the legitimacy of political processes and the sovereignty of state action: the central problems of constitutional law. Are political decisions really taken by the citizens or their elected representatives, can they therefore claim to represent the will of the people? That is less and less the case today. National and international courts create a ‘judiciary law’ that has never been approved by a parliament or a vote [...]. Democratic legitimacy has undoubtedly suffered in recent years - and not only in Switzerland” (Eric Guyer, “Neue Zürcher Zeitung” from 13 October 2018, emphasis mw).
In an interview with Katharina Fontana, Hans Mathys, then President of the Criminal Division of the Federal Court – he resigned at the end of 2014 for age reasons - also commented on the relationship between the Federal Constitution and the ECtHR: “They are on the same level and contain practically the same content. Should contradictions arise, they must be resolved by means of interpretation. However, this is not always possible, the interpretation also has limits. In such a case the constitutional provision must nevertheless be applied.” To the question: Even if it collides with the ECtHR? “How to proceed in such cases must be decided by the politicians. This is not a legal question that should be clarified by the Federal Court. “(“Neue Zürcher Zeitung” from 22 December 2014).

Why should 5 judges decide more fairly than 5 million voters?

Here we read in black and white what everyone should have learnt in civics lessons. From a former SP federal judge, the “Neue Zürcher Zeitung” editor-in-chief (who, however, prefers the judge’s state), a former SVP federal criminal judge: in the Swiss state structure, the sovereign (people and cantons) is at the top of the list; it decides what is written in the federal constitution. The Swiss Federal Court is not a constitutional court that can overturn popular or parliamentary decisions. Why should 5 judges (or 3 against 2) decide more fairly than 246 parliamentarians or over 5 million voters? For us democratically certified Swiss, it is unacceptable for the Federal Court not to apply constitutional provisions adopted by the sovereign – only because a chamber of the ECtHR, whose members are foreign to the Swiss legal culture, decides or could decide differently. Former Federal Judge Schu­barth characterised this process as a “veiled constitutional amendment without democratic legitimation”.

“Land law before international law? Other countries have been doing it for a long time” (swissinfo)

As the following statements show, Switzerland would by no means be a “special case” if the supremacy of the Federal Constitution over non-binding international law were considered.

Initiative text: Art. 5 para. 4
Confederation and cantons observe international law. (hitherto) The Federal Constitution takes precedence over international law, subject to the mandatory provisions of international law. (new)

“The self-determination initiative wants to establish that the Federal Constitution takes precedence over non-binding international law. This is the way it is regulated in most countries.” (Dominik Feusi, “Basler Zeitung” from 10 October 2018, emphasis mw)
In a report, the Federal Council has presented a comparison with the laws of other countries.1 Swissinfo from 30 May 2018 summarises the results of the Federal Council.2

  • “Germany: Own constitution stands over ECHR.”
          “International treaties, which regulate the political relations of Germany or refer to objects of federal legislation, require a ‘consent law’. As a result, these agreements do not have priority, but are on the same level as an ordinary German law. This also applies to the European Convention on Human Rights (ECHR). The law of the European Communities, however – the European law in the narrower sense - takes precedence over German law”.
  • France: International agreements have “a higher legal force than French laws – provided that the other contracting parties also adhere to the contract”. […] Exception: EU law takes precedence over French law: if it violates the French Constitution, the Constitution must be revised.
  • Great Britain: “International law applies only in the form of national laws”.
          International treaties are transformed into a national law and have the same status as ‘normal’ laws. Only Community law (EU law) takes precedence over other laws”. [However, this is not for much longer the case in Great Britain.]
  • Sweden: Treaties under international law must be transformed into a national law, “including the ECHR. The treaty will then have the status of an ordinary law [...]”.
           “The EU law takes precedence over the Swedish laws. On the other hand, the relationship between Community law and the Swedish constitution is controversial. It is, however, “unlikely that Swedish courts would deny application of Community law because it is unconstitutional”.
  • “United States of America: national law above all else.”
          “The American Constitution cannot be supplemented in any way by international law, nor can it be amended or restricted. [...] According to jurisdiction, parliament can validly pass a law that is contrary to international law - this then takes precedence.”    “The courts repeatedly refused to apply international law with reference to national or even federal law. The Supreme Court does not consider the judgements of an International Court of Justice to be binding.” Comment: But to reproach other countries for shortcomings in the rule of law ...

In this sense, the Federal Council stated:

“As far as the question of priority is concerned, none of the constitutional systems examined admits to a primacy of international law that can be applied mechanically, as it were; weighing processes always play a central role in one form or another […]. The central values and principles of national constitutional systems, for example in the area of fundamental rights, must also be included in the weighing up process.”  (Federal Gazette 2010, p. 2300) We can only follow this.

Conclusion: Two clear results of the 2010 Federal Council report:

  • The ECHR is at the level of a national law.
          In the European states examined, the ECHR has the legal status of an ordinary law, except in France — if the contracting party complies with the treaty, which would have to be denied with regard to the excessive jurisdiction of the ECtHR.
          In this sense also Federal Criminal Judge Hans Mathys: Federal Constitution and ECHR “stand on the same level and contain practically the same contents”. How to proceed in the event of a contradiction “must be decided by the policy. This is not a legal question to be clarified by the Federal Supreme Court. The difficulty, however, is not with the ECHR itself, but with the Strasbourg Court of Justice. “(“Neue Zürcher Zeitung” from 22 December 2014)
  • EU law is above national law for all member states and severely restricts their state sovereignty. The only remedy is a Brexit or Grexit or Öxit.

Consequence for Switzerland: Let us beware of a framework agreement with Brussels!

This would give the EU carte blanche for the repeal of Swiss law in wide areas of law. The process surrounding the EU Weapons Directive is an alarm signal: Who among the voters who approved the Schengen Treaty at the ballot box 13 years ago thought then of such excesses of the “continuation of Schengen law”? Further large-scale interventions are planned in the negotiations on the framework agreement, even if the negotiations are currently suspended: Adoption of the Citizens of the Union Directive (unforeseeable immigration that cannot be controlled by Switzerland, with access to social benefits and the long-term objective of political rights for foreigners), the Posting of Workers Directive (instead of tailor-made accompanying measures to the FMPA), prohibition of state subsidies (e.g. support for hydropower stations, state guarantee for cantonal banks, cantonal building insurance). These are only the tips of the iceberg - the rest is still hidden below sea level. We’re not buying a pig in a poke!

Implement Swiss law and apply or: The sudden change in Federal Court practice

Initiative text: Art. 56a Obligations under international law

1 The Confederation and the cantons shall not enter into any obligations under international law that will contradict the Federal Constitution.
2 In case of contradiction, they agree to amend those obligations to international law to fit the premises of the Federal Constitution, if necessary by means of cancelling the respective treaties.
3 The mandatory provisions of international law remain reserved.

One reason for the self-determination initiative was the refusal of the National Council and the Council of States to implement the mass immigration initiative from 9 February 2014 (now Art. 121a of the Federal Constitution). On the other hand, the initiators took the sudden change in practice of the Federal Court after the adoption of the deportation initiative by the people and the cantons on 28 November 2010 (now Art. 121 para. 3-6) as an aim.
Until a few years ago, the Federal Court adhered to the Schubert practice, as it did under the 1874 constitution: a new federal law applies even if it contradicts older international law, if the parliament expressly wants it. The court also followed this principle in its jurisdiction when taking account of the ECHR. The precedence of the consciously set newer norm would have to apply all the more if it is a question of a constitutional provision.
However, with the controversial judgement on the deportation initiative (BGE 139 I 16) from 12 October 2012, the Federal Court deviated from this long-standing practice by postulating that the ECHR takes precedence over the Federal Constitution. In a nutshell, the II. Public Law Division of the Federal Court protected by 3 votes to 2 (!) the complaint of a foreigner convicted of qualified drug trafficking, who was subsequently deprived of his permanent residence permit by the Thurgau Administrative Court. Reason given by the Federal Court: “Paras. 3-6 of Art. 121 incorporated into the Federal Constitution by the deportation initiative on 28 November 2010 are not directly applicable […] but require implementation by the legislator; they do not take precedence over the fundamental rights or the guarantees of the ECHR” [emphasis mw]. The new constitutional article would only be taken into account to the extent “that it does not lead to any contradiction […] in the margin of discretion which the ECHR grants to the individual Convention states in implementing their immigration and foreigners policies”. Instead of relying on the constitution, the court relied on Article 63 of the Foreign nationals Act, according to which permanent residency may be revoked in the case of more serious offences. This measure must, however, be “like any government action – proportionate”.
In plain language: The Swiss people could have saved themselves the trouble of collecting signatures for the deportation initiative if three gravediggers of direct democracy in the Federal Court were of the opinion that they did not need to abide by the constitution. The deportation article does not mention the principle of proportionality. In order to circumvent this fact, the court simply declares the expulsion of a criminal foreigner as “not proportionate” (elastic term), because harmony with the Strasbourg court is more important to him than compliance with the will of the people.
Federal Criminal Judge Mathys commented: The principle of proportionality is not a fixed size, but must be concretised in individual cases. “If the electorate now accepts a popular initiative, then the regulation made there is just proportionate from his point of view. I have difficulties when you say that political decisions that don’t suit you are not proportionate and need to be corrected.” (“Neue Zürcher Zeitung” from 22 December 2014)

The more Switzerland opposes something, the less it “will have to swallow”.

Switzerland may be a small country, but its word has weight – if it is said to be so. Switzerland can also be more self-confident towards the EU. Many EU states would be interested in a reorganisation of Schengen/Dublin and the free movement of persons, and for reasons of constitutional law Switzerland must never enter into an institutional framework agreement with Brussels. The obligation to adopt current and future EU law with unknown content and scope is incompatible with Switzerland’s direct-democratic state structure. Against unlawful reprisals from Brussels, such as the threat to abolish stock exchange equivalence, Parliament, for example, has the 1.3 billion cohesion funds in its back. Instead of positioning herself accordingly, Doris Leuthard now wants to submit a totally liberalised Electricity Act for consultation shortly before her resignation from the Federal Council in order to pave the way for an electricity agreement with the EU. Before the referendum on the new energy strategy she did not reveal this planned step.
By voting yes to the self-determination initiative, the citizens of Switzerland are helping to get the Federal Council, the Federal Assembly and the Federal Court back on the Swiss track.     •

1    “The relationship between International Law and National Law” Report by the Federal Council from 5 March 2010, Federal Gazette 2010, pp. 2290-2301
2    “National law before International Law? Other countries have been doing it for a long time”. SWI swissinfo.ch  from 30 May 2018, by Sibilla Bondolfi

Mandatory international law is clearly defined

mw. Today every treaty between two or more states runs on  “international law” for example for the joint organisation of cultural events or for police cooperation between two neighbouring states. People’s heads are confused by pushing every trivial treaty into “international law”. The fact is that the vast majority of international treaties do not contain any binding international law and can therefore be terminated, for example the bilateral treaties between Switzerland and the EU.
If a popular initiative doesn’t suit your needs, you will quickly claim that it violates “international law” or “human rights”. In fact, however, a popular initiative in Switzerland is only invalid if it violates mandatory international law. Until now, this has only been the case with a single federal popular initiative.

Mandatory international law(ius cogens) according to acompilation of the Federal Council

In 2010 the Federal Council designated the following norms as mandatory international law:
“According to the practice of the federal authorities, the term ‘mandatory provisions of international law’ currently includes the prohibition of violence, torture (Art. 3 ECHR; Art. 7 UN Covenant II), genocide, slavery, servitude and forced labour (Art. 4 (1) ECHR; Art. 8 (1) and (2) ECHR), the prohibition of arbitrary killing (Art. 2 (1) ECHR; Art. 6 (1) UN Covenant II), the principles ‘nulla poena sine lege’ [no punishment without law, mw] and “ne bis in idem” [prohibition of double punishment for the same offence, mw] (Art. 7 ECHR, Art. 15 UN Covenant II), the internal freedom of religion (i.e. the right to develop one’s own religious opinion in freedom and to free oneself from it again; protection of the so-called ‘forum internum’ [freedom of faith and conscience, mw], Art. 18 (3) UN Covenant II e contrario) and the main features of international humanitarian law (Art. 3 of the Geneva Conventions of 1949). […].”(Report of the Federal Council of 5 March 2010, Federal Gazette 2010, p. 2314/2315).1

Validity of popular initiatives

The Federal Assembly declares popular initiatives invalid, in whole or in part, if they “violate the unity of form, the unity of substance or mandatory provisions of international law” (Article 139(3) of the Federal Constitution).
With regard to the validity of popular initiatives, Parliament has always shown itself to be democracy resistant. Since the introduction of the federal popular initiative in 1891, out of 333 initiatives, only four have been declared invalid by the National Council and the Council of States, three of which due to a lack of unity in the matter (mixing of a number of unrelated issues in a single vote). Only a single initiative was declared invalid by Parliament in 1996 for violation of mandatory international law.

1 UN Covenant II: International Covenant on Civil and Political Rights of 16 December 1966, entered into force for Switzerland, 18 September 1992
(Translation Current Concerns)

“If Switzerland were to adopt the EU’s working conditions and wages through a framework agreement, this would be dangerous for the protection of our employees. Swiss law provides better protection than European law. I am firmly opposed to European law governing all relations between Switzerland and the EU.”

Micheline Calmy-Rey, former Federal Councillor, Sonntags-Blick vom 12.8.2018