News from Federal Berne

Alternative draft to the “Rasa-Initiative”: legislative process by consultation is in progress

by Dr iur Marianne Wüthrich

The three-year deadline regulated in the Federal Constitution for the implementation of an autonomous management of immigration expired on 9 February 2017. Neither the Federal Council nor parliament has fulfilled the constitutional mandate.
    As a reminder, for almost three years the Federal Council did not bring off negotiations with Brussels on the adjustment of the free movement agreement, which had been decided by the Swiss sovereign. In their winter session of 2016, the Swiss National Council and the Council of States approved a ‘light version of the right for nationals’, which was admittedly well received in Brussels, but did not in any way respect or enforce the people’s will. The next act is now the National Initiative “Let’s get out of the dead-end” (“Raus aus der Sackgasse”: Rasa-Initiative), which wants to delete the immigration article from the Constitution.1 The initiators want to teach their indepence-seeking fellow citizens in which direction they think the journey should go: Brussels onwe-way!
    In order to somewhat mask the expected clear ‘No’ of the Swiss people to Rasa, and so to the violation of the constitution on the part of government and parliament, the Federal Council has plunged into activism and produced a direct counter-draft in two versions. This was sent in for consultation on 2 February. One of the two versions is to come to the vote together with the Rasa-initiative, unless they are clearly rejected by the consultation partners. This is much to be hoped.

By means of a consultation process, the Federal Council obtains statements of the cantonal governments, political parties, as well as umbrella organisations of towns, cities, mountain regions, and the business community, as well as of other interested parties, before developing and then submitting its message to the National Council and the Council of States. Usually, the consultation procedure takes three to six months, so that the addressees have enough time to form their opinion and to formulate it.

Period of consultation from 2 February to 1 March 2017 – somewhat scant, is not it?

In the present case, according to the Federal Council the consultation begins on 1 February 2017, but the letter to the addressees of the consultation is dated from 2 February. Thus, the period from the receipt of the dossier2 to the latest possible moment for the submission of a statement is not even four weeks. Let us spare the reader an explanation of how the Federal Council justifies this short deadline in its additional letter – the fact is that the addressees are allowed hardly enough time for a well-founded answer.

The Federal Council declares: the constitutional obligation has not yet been implemented

As the Federal Council rightly states in its “explanatory report”, the articles of the constitution adopted by the people comprised “… two mandates: firstly, the adjustment of the aliens act […] and secondly, negotiations about the adaptation of treaties under international law which do not comply with these provisions.”3 The Federal Council openly admits that it has fulfilled neither of the sovereign’s mandates.
About the first mandate: Parliament has essentially only introduced a ‘light version of the right of priority for nationals’ into the aliens act, which is compatible with the free movement agreement with the EU (FZA). However, this regulation “generally waives setting maximum numbers and quotas for inhabitants of EU and EFTA member states, and thus does not completely replace Article 121a BV.”4 This is just spin. In reality, Article 121a is not implemented at all.
On the second mandate: How weakly and submissively the Federal Council has behaved towards the EU-powers has already been explained in detail in Current Concerns.5 The Federal Council also confirms in the “explanatory report” the frequent but unsuccessful “consultation sessions” with Mr Juncker as well as in the “Mixed Commission” and concludes with the pessimistic remark: “After the UK vote for the withdrawal from the EU (Brexit), it has become clear that a successful negotiation with the EU on adaptation of the FZA is hardly possible in the foreseeable future.”6 Unsurprisingly our subcontractors bring nothing else to pass!

Rasa-Initiative: after the Federal Council’s fancy

With regard to the Rasa initiative – which really represents nothing more than the “rampage” of a bad loser – the Federal Council does not conceal the fact that it would welcome their acceptance, i.e. the removal of the “control of immigration” decided by the sovereign:  “By repealing Articles 121a and 197 (11) BV by the people and the estates, the difference between the Federal Constitution and the FZA would be eliminated. At the same time, the order to control and limit immigration, which was given by the people and estates, would be omitted.” That would like our “servants of the people”, would it not? Even so, the Federal Council bethinks the “democratic-political reasons”, which are against the idea of rescinding a popular decision after such a short time.7 But it would be easier for the class politique in Berne to reach the desired closer embrace with the Brussels elite, if it were not forever to struggle with the electorate and its urge to decide for itself … For this purpose the Federal Council has fabricated a counter-draft with two variants, which both would make it easier for them to “govern” untroubledly.

Alternative Draft Variant 1: Do Contracts with the EU prevail the Federal Constitution?

Ostensibly Article 121a would largely remain (paragraph 1-3: Switzerland shall control the immigration of foreign nationals autonomously by annual quantitative limits and quota, giving priority to Swiss citizens). Only paragraph 4 and 5 are supposed to be changed,  also the transitional provision in article 197 point 11 would be deleted.

Wording version 18:
Article 121a, 4 When controlling the immigration, treaties under international law which are of great importance for the position of Switzerland in Europe are observed.
Former wording in point 5 is deleted.
Article 197 point 11 FC,  transitional provision concerning
Article 121a (immigration control) is repealed

In plain language: The Federal Council wants to introduce a material (contentual) restriction of the right to a popular initiative under the counter and at the same time to relativise the existing constitutional provision FC 121a. The sovereign control of immigration by Switzerland shall be allowed only to the point were “international agreements […] of momentousness oppose the position of Switzerland in Europe”. In its explanations the Federal Council assigns to this ambiguous clause explicitly the Free Movement of People Act with the EU, that he, in an illegal way, sees in the same range as the ECHR, the UN conventions and the Geneva Convention on refugees.9 May be, this way it is less striking? Such a colourful mix of voluntarily agreed, terminable contracts (Freedom of Movement of Person Agreement [FMP] between Switzerland and the EU) with mandatory provisions of the international law (Geneva Convention) is prohibited from legal point of view. We as citizens, in turn reframe from agreeing to such a jamboree bag, in which our “representatives” in Berne can put depending on their mood, what seems to them just opportune to declare people’s initiatives invalid and to derate constitutional law.

In 2014 the sovereign decided the opposite of Variant 1

Article 121a (paragraph 1-3: autonomous control of immigration, annual quantitive limits and quotas, priority to swiss citizens)
4 international agreements must not be concluded, which violate this article.
5 the legislative act regulates the details. Article 197 point 11 FC transitional provisions to Article 121a (immigration control)
1 international treaties, in contradiction to article 121a, are to be renegotiated and adopt within three years after its acceptance by the people and the cantons.
2 […]

In 2014 the voters wanted to be able to regulate the barely manageable number of migrants who since the conclusion of the bilateral agreements I came from EU Member States into our country, by applying annual quantitative limits and quota, for example, in particularly affected industries or regions. For this purpose precisely the FMP agreement would have to be renegotiated, which the Federal Council with Variant 1 of his alternative wants to uprate over the today’s regime of article 121a. Because immigration from non-EU and EFTA countries is already under control of Switzerland, we need no new constitutional provision.

Rule by the Executive instead by people and parliament?

Concerning the provisions the Federal Council wants to withdraw from the Constitution: Paragraph 5 of article 121a he obviously sees no longer as needed inside Variant 1. It means, it doesn’t need any implementation in a law, or otherwise said: the Federal Council would unmolested by the parliament, and without fear of facing a referendum, decide which contracts with foreign States are in his opinion «of great significance for the position of Switzerland in Europe». In this case the transitional provision in article 197 would therefore no longer be necessary: Nothing new must be negotiated, because the FMP and other contracts are so sacrosanct, and there is also no time limit of three years any more, which the Federal Council must comply with.
Now it becomes clear, what the alternative aims to: a further strengthening of EU-compatible rule of the Executive, combined with a weakening of direct democracy. As we have noted before: these two government models are different as fire and water.

An alternative draft variant 2: Shifting indefinitely

This variant is quickly explained. Article 121a FC should remain unchanged, but the provision with the three-year transitional period for the legal and contractual arrangements to become implemented would be withdrawn. That means Federal Council and Parliament would have time to fix the immigration or just not to regulate with no time limit: “The mission however remains to take further steps for the implementation of article 121a FC, if the situation should change in the future in the EU with regard to the FMP.”10 As said: if and whenever the gentlemen in Berne want to apply it. The direct democracy is suffering, we as citizens are supposed to be left out.

Suggestion: Option 3 with an extension of the deadline and an unilateral safeguard clause

A possible variant, which could have a chance in a referendum, would be an extension of the deadline for implementation  by a certain time, so Switzerland for example could engage, when Great Britain has taken a provision concerning immigration with the EU. But we can’t wait until the EU institutions offer a possibility to change the FMP agreement; Therefore, in the meantime, Switzerland must introduce an unilateral safeguard clause as it was already discussed and recommended even by EU politicians
Possible (still to be refined) wording:

FC article 121a, 1–4 unchanged
5 as  long as the freedom of movement of people act is not finally agreed with the EU, Switzerland will introduce an unilateral safeguard clause with autonomous control of immigration, annual quantitive limits and quotas and with priority to swiss citizens. The safeguard clause can be restricted to individual regions or industries.
6 A law regulates the details.
FC article 197 point. 11 transitional provision:
1 international treaties, contradicting articles 121a, are to be renegotiated within three or five years after the approval of the counterproposal variant 3 by people and the cantons and to adapt.
2 repealed

Some EU Member States will join Britain and Switzerland and will even regulate their immigration acts – and maybe other areas –, Why not? A federation of peoples, which can be held together only with coercion and pressure, is not resistant to tearing. Only acting with voluntarily allied, you can move mountains.     •

1    Cf. “Don’t sacrifice the Swiss state under the rule of law and democracy to the EU integration mania” in: Current Concerns No 1 from 14 Januar 2017
2    Current Consultations. EJPD. Direct alternative on the National Initiative “Let’s get out of the dead-end” (“Raus aus der Sackgasse”: Rasa-Initiative) Cancellation on the reintroduction of the immigration quotas.”. https://www.admin.ch/ch/d/gg/pc/pendent.html#EJPD
3    Explanatory Report for the direct alternative of the Federal Council on the National Initiative “Let’s get out of the dead-end” (“Raus aus der Sackgasse”: Rasa-Initiative) Cancellation on the reintroduction of the immigration quotas.” from 1 Frebruary 2017 [below quoted as; Explanatory Report] p.9
4    Explanatory Report, p.10
5    Cf. “Don’t sacrifice the Swiss state under the rule of law and democracy to the EU integration mania” in: Current Concerns No 1 from 14 Januar 2017
6    Explanatory Report, p. 11
7    Explanatory Report, p. 13
8    Explanatory Report p. 14/15
9    Explanatory Report, p. 15
10    Explanatory Report, p. 16

Erasmus+: Autonomous participation works better and is cheaper

One argument of the Rasa initiates is that Switzerland would be excluded from Horizon 2020 and Erasmus+ in case of a full implementation of immigration control.1 As was already explained in Current Concerns, the temporary exclusion had a positive side-effect for Switzerland. For it turned out that we are doing better with the autonomous participation in these programmes.2
It was then announced in the daily press that on 7 September 2016 the Federal Council had decided to prolong the “transitional solution”, i.e. the autonomous organisation of EU mobility and cooperation projects for Swiss students by the State Secretariat for Education, Research and Innovation (SERI), until the end of 2017.3
In the meantime, Berne has secretly and quietly decided that the SERI will retain the current regulation as “Swiss implementation of Erasmus+” till the end of 2020. Obviously, the EU Commission wanted more money from Switzerland than it was willing to pay.4 However, if Switzerland itself remains in control of the expenditure, the Federal Council will have enough money to cover not only “outgoing mobility” but also “incoming mobility”. What is enciphered here in the purest Newspeak means: Switzerland – as the only European country by the way – is paying not only for study stays of Swiss students in EU countries but also for those of foreign students in Switzerland.
And yet, the expenses will be lower than if they flow through the money pots of the EU Commission ... This just as a little thing to think about for all those Swiss who believe that with closer ties to the EU, we would be better off in certain ways than on our own as a sovereign state.

1     Explanatory report, p. 8
2     “Swiss Research and Education Cen-tre and EU Bureaucracy”. In: Current Concerns No 26/27 from 5.12.2016
3     Media release from 7.9.2016. Federal Council extends the transitional solution for Erasmus+ till end of 2017
4     See “Wiler Zeitung” from 4.2.2017