Defending popular rights – by limiting them?

What about the small print? Collecting signatures for a people's initiative Christian Flierl

Switzerland's system of direct democracy has won it praise in the past, but a vote to ban minarets has led many to question the much vaunted ideal.

Much of the feedback swissinfo.ch received on the vote has focused on this aspect of the Swiss political system, which means that ordinary people have the right to shape laws.

But the history of direct democracy over the past 150 years is one of slow evolution and adaptation, and the result of the minaret vote has resulted in calls for change.

In the opinion of many lawyers, the decision to ban minarets is a clear infringement of articles of the European Convention on Human Rights (ECHR), to which Switzerland is a signatory.

The problem is that there is currently nothing to stop an initiative being submitted to a popular vote which cannot legally be implemented if it is accepted.

At the moment the only grounds on which an initiative can be declared invalid before a vote is held is if it violates “peremptory norms”, in other words norms which are obligatory under international law. These include such things as the prohibition of crimes against humanity, genocide, slavery and torture.

The provisions of the ECHR are not regarded as peremptory norms – but Switzerland is nevertheless obliged to follow them.

Two years ago Daniel Vischer, a Green Party member of the commission on political institutions of the House of Representatives, submitted a parliamentary motion to make popular initiatives invalid if they violate fundamental rights.

Vischer wanted to avoid situations where voters are invited to make changes to the constitution which cannot be implemented.

His proposal is currently making its way through Switzerland’s complex parliamentary system.

Incompatible demands

Vischer is not the only person to be concerned about the anomaly in the law governing direct democracy.

“We must find how we can prevent people from launching initiatives that directly violate internationally guaranteed human rights,” Andreas Auer, professor of constitutional law at Zurich university and director of the centre for democracy in Aarau, told swissinfo.ch.

Such a move would not call direct democracy into question, he stressed.

“We defend it to the last, and it’s precisely because we defend it that we must recognise that there are some limits to it.”

He pointed out that popular votes at cantonal level have for years had to be compatible with federal law and with human rights requirements. The same should apply at federal level, he believes.

How exactly this is to be done is something that still has to be worked out but needs to be discussed, he added.

Auer thinks that the government and parliament could examine proposals that are put forward, but that they should not have the final say on whether a vote can be submitted to the people or not.

“It must end up in a court. This is my conviction. These questions cannot be decided by political bodies like parliament or the government, but by judges. Human rights questions are delicate questions.”

No contradiction

But for Ulrich Schlüer, member of parliament for the rightwing Swiss People’s Party and a member of the committee which proposed the anti-minaret initiative, there is no contradiction between human rights and direct democracy. The opposite is true, he assured swissinfo.ch.

“Not only human rights, but rights and democracy are twins, in my view. Rights which come out of the decision-making process in direct democracy are the most stable and most recognised law,” he said.

For him, asking courts to decide on the legitimacy of people’s initiatives would be the end of direct democracy.

He accused the “establishment” of wanting to change the system because they had lost the vote. “But in a democracy, and a direct democracy, the people are allowed to decide the opposite of what the government wants.”

Bruno Kaufmann, the president of the Initiative and Referendum Institute Europe, told swissinfo.ch that direct democracy had evolved. In the “pre-modern kind” the people could decide everything, he explained, but the world has changed.

The current case of the minaret ban raises the question of where exactly the limits are for direct democracy, he explained.

“A modern direct democracy has to consider the limits of its own powers, which all other institutions in a modern democracy also have to do.”

Basic principles

Auer says that the debate now sparked about the issue is in fact a reminder of fundamental principles.

“We are not pushing human rights above direct democracy,” he said. “Everyone agrees they are there. The people have never had the right to violate human rights. We just want to remind those who have provoked this decision that human rights are something we must not fail to respect.”

Despite Schlüer’s conviction that the minaret ban does not infringe the rights of Muslims, numerous legal experts expect appeals against it to be lodged with the European Court of Human Rights.

That is something that Auer hopes can be avoided in the future at least. Any amendment to the current system would have to be voted on by the people – but he hopes they would accept.

“It’s a patriotic measure to say we want to do this at home. These are our problems, it’s our direct democracy, and we should have the procedures that allow us to solve these problems before a court because there is no other solution.”

Julia Slater swissinfo.ch

In brief

Switzerland has become the first European country to ban the construction of minarets.

The proposal was launched by members of the rightwing Swiss People’s Party and the ultra conservative Federal Democratic Union.

The initiative came in response to opposition by conservative groups at a local level against applications to build a minaret next to a mosque.

Direct democracy

Direct democracy in Switzerland means that new laws enjoy general acceptance, but on the other hand it slows down the political process.

Supporters of the direct democracy system say it forces members of parliament to seek compromise when debating a bill. They will not insist on controversial points because this could mean the entire measure being lost.

It also gives members of opposition groups or minorities the chance to provoke discussion on issues that might otherwise be ignored.

Critics of the system point out that it is slow and cumbersome. Five years can pass before a popular initiative becomes law. Referendums can also be used to delay social or political change. One example is the adoption of women’s suffrage, which was approved by parliament in 1959, but then rejected by the (entirely male) electorate in a subsequent referendum. Men only agreed to accept the project in 1971.

Critics also point out that the “double majority” rule gives an unfair advantage to the smaller cantons – which tend to be conservative.

The anomaly was clearly pointed up in 1992, when the Swiss were asked whether the country should join the European Economic Area. The popular vote was split almost exactly down the middle, but the cantonal vote was a hefty 16 to 7 against.

Ironically, any move to reform the system would need the approval of these small cantons – who are not eager to give up their voting power.