An extraordinary Federal Supreme Court decision

A discussion with Professor Dr Rainer J. Schweizer

Current Concerns: Professor Schweizer, what do you think about the decision of the Federal Supreme Court to invalidate the referendum on the marriage penalty initiative?

Professor Rainer Schweizer: I would not allege the Federal Council of any intention, but if, on the basis of information from the administration, it provides such fundamentally false information that one gets the impression that it affects only a small part of the population, about 1%, then that is a fundamental mistake. Voting does not simply mean: It is decided. The decision must be based on the right foundations, on the correct information, it must be comprehensible in this sense. Since there was no clear majority in this vote, but only a small difference between yes and no votes, the Federal Supreme Court declared it invalid.
There were cases in the cantons – you probably know the famous example when Laufental voted on whether or not to remain with Berne after the canton of Jura was founded. [In 1978 the voters of three French-speaking districts of the Canton of Berne had voted to separate from Berne and found the new Canton of Jura, a decision confirmed by the Swiss sovereign in 1979]. At the time the Canton of Berne illegally advertised, and did so massively, and it did not disclose this. The Federal Supreme Court then overturned the Laufental vote. Then the voters in Laufental said: “We don’t want to stay with the Canton of Berne, which deceived us. I therefore believe that it is essential that we have such possibilities for correction in exceptional cases, in the case of grave, obvious mistakes.

Yes, I agree, and of course I do not agree if the Federal Council gives false information either. But this is not a matter of a cantonal vote, but of a federal vote, and according to the Federal Constitution the Federal Supreme Court is not competent to overrule federal votes.

That is not what the Federal Constitution says. If the vote is based on the wrong foundations or on serious misinformation, then it is possible.

However, the constitution states that acts of the Federal Assembly and the Federal Council may not be challenged before the Federal Supreme Court (Art. 189 par. 2 BV). This must apply all the more to referendums at the federal level. And up to now the Federal Supreme Court has never annulled a federal decision, it is for the first time.

But we also have the possibility to appeal against the voting booklet if something is misrepresented. What is written there is an act of the Federal Council following a decision by the Federal Assembly. Your argumentation does not work insofar as it is about protecting the interests of voters. It is not about the rights of Parliament or the Federal Council, it is about the constitutional rights of voters. The Federal Constitution does not say that voters have no right to protection at the federal level.

Yes, that is true.

Nor can this be derived from any provision of law. Once again, it is not a question of Parliament and the Federal Council, but of protecting a fundamental right, namely the free formation of will in a vote. This is guaranteed in the Federal Constitution, Article 34, par. 2.

Yes, the Federal Supreme Court bases its present decision on Article 34.

Article 34 is an expression of the fact that democracy has its root in fundamental right, in human right. Namely the free formation and expression of will in elections and votes. This can only be protected by the Federal Supreme Court. Otherwise the authorities could manipulate the voters. In my opinion, the forthcoming vote [on 19 May] on the tax bill and the OASI pension bill is also a manipulation because the voters are “bought”: Their approval of the tax advantages for companies, the effects of which are very uncertain, is made palatable by a contribution to the pension for all. Voters want to be convinced by arguments, not by advantages. It would be correct to say that two decisions are at issue which entail considerable costs for the confederation.

You think that a complaint could have been filed with the Federal Chancellery because two completely unrelated bills were combined here to form a single voting issue?

That would have been the question of whether one could not and should not have done this. Because the voters always have the last word on constitutional amendments – and because they have the last word on laws following a referendum request – this does not mean that the Federal Council and the Federal Assembly, which prepare these bills, are incontestable.

Yes, that is true, but it is written in the constitution. Then we have to change the constitution.

I am of the opinion that we have to change that anyway. In the confederation, business control and above all financial control are very well developed, but legal control is completely lacking. The Federal Administration, the Federal Council and the Federal Assembly know that they can violate the Federal Constitution with federal laws and that disregarding Switzerland’s obligations under international law hardly has any consequences, unless the Strasbourg Court or the EU institutions disapprove of this. The Federal Constitution lacks effective protection. Not least for this reason, there are many errors in federal law; they must actually be able to be corrected.

That makes sense. – But I still have a question. My worry is that the Federal Supreme Court increasingly assumes a role towards restricting direct democracy. It has been doing that for some time now. Don’t you get the impression from this decision that it is going in this direction?

That is another problem. What you say is, of course, a serious issue. We really do have the problem of how far the quality of the Federal Supreme Court is guaranteed. I have recently seen a number of cases where the Federal Supreme Court has contradicted itself or rejected complaints, even though there have been considerable restrictions on democracy or fundamental rights. I am by no means enthusiastic about the inconsistent and fluctuating practice of the Federal Supreme Court.
There are many very earnest and highly qualified persons at the Federal Supreme Court, but there are repeatedly cases in which a political bias or the desire for quick settlement is discernible.

But in principle you are not of the opinion that the Federal Supreme Court does not have the power to overrule federal referenda.

No, I do not think so. It is a matter of protecting voters from false information and from errors in the voting procedure. That is crucial.

Thank you very much for your explanations, Professor Schweizer.    •

(Translation Current Concerns)

Open question: What next?

mw. Professor Schweizer’s position is clear: voters are entitled to correct information before a vote. How often have we not been outraged by the manipulative voting campaigns conducted by the Federal Administration with the generous use of our taxpayers’ money?
In our opinion, however, there is a serious objection to leaving the decision on the correctness of the Federal Council’s information to the Federal Supreme Court. In the case of a purely domestic political proposal such as the initiative against the marriage penalty, we could do this without hesitation. But as far as foreign policy issues are concerned, for example in connection with the EU, we have had bad experiences with the Federal Supreme Court in recent years. We have the impression that some Federal Judges secretly find direct democracy in foreign affairs just as annoying as their colleagues in the Federal Administration.
Let us come back to the example of the Federal Council’s explanations of the Framework Agreement. They were drafted within the Federal Administration, which is faithful to the EU, and which decisively triggers and steers the course in federal Berne. These explanations will later be found more or less identically in the voting booklet. If we were to give the Federal Supreme Court the competence to decide whether or not this “information” impairs the free decision-making of the citizens, we would not be able to count on an impartial judgement, and the free decision-making of the citizens would be even more undermined.
But also, many apparently domestic political proposals are linked to foreign policy goals. For example, the Tax and OASI (Old age and survivors’ insurance) bill, on which a vote will be taken on 19 May (see article by Dr Werner WŁthrich in this issue, “The crux with the black and grey lists …“) and whose connection to a single voting question is rightly criticised by Professor Rainer Schweizer.
Voting proposals of recent times, such as the three popular initiatives to promote sustainable and self-sufficient food production, have been cleverly handled by the Federal Council and its team in the Federal Administration because each of them would have prevented various planned free trade agreements.1 For example, those with Indonesia and Malaysia, fought by the Green Party because of the import of cheap palm oil contained therein, which is produced under incomparably worse working conditions than the more expensive Swiss rapeseed oil.2
What next? How can we protect free decision-making from the grip of administrative power and preserve our direct-democratic freedom of choice? This is a really urgent question that we must continue to address. Professor Schweizer’s committed statement makes this clear to us.

1     See “Produce regionally what can be produced in the region”. Press conference on food security and food sovereignty in Berne, by Dr iur. Marianne WŁthrich. In: Current Concerns No. 22/23 from 23.9.2017 and “Food security must be ensured. No to the counter-/contrary proposal “Food Security” by Dr iur. Marianne WŁthrich. In: Current Concerns No. 19 from 15.8.2017
2    see “Preservation of Swiss agriculture – neither nostalgic nor unworldly, but a requirement of time” by Dr iur. Marianne WŁthrich, with an interview with Maja Graf, National Councillor GP and organic farmer. Current Concerns No. 7 from 3.4.2018