The Not So Hidden Agenda of the ˈInitiative for Self-Determinationˈ

The initiative ‘Swiss Law instead of Foreign Judges (Initiative for Self-Determination)’ is the last in a long series of initiatives launched by the SVP with the aim to reverse the philosophy of the new Swiss Constitution to assure fundamental rights protections to all residents, including minorities. The intention is to overcome the separation of powers.

It was apparently the 2012 decision of the Federal Tribunal (Supreme Court) in Lausanne (“If there is a genuine conflict of laws between federal and international law, Switzerland’s obligation under international law takes precedence…” – BGE 139 I 16 S. 28) that triggered the Swiss People’s Party (SVP) decision to launch the initiative ‘Swiss Law instead of Foreign Judges (Initiative for Self-Determination)’. This is the last in a long series of initiatives following the strategy to reverse the philosophy of the new Swiss Constitution approved in 1999 to assure and secure fundamental rights and human rights protections to all residents. This target is present in different initiatives: It started 2008 with the ˈInitiative for Democratic Naturalizationsˈ that intended to abolish constitutional guarantees for citizenship applicants, reinstalling arbitrary procedures at the level of municipalities that were eliminated in a Federal Tribunal rule of 2003. The project was turned down by the people with a 63,8% majority. But the SVP succeeded one year later, 2009, with the ˈMinaret Initiativeˈ to ban the construction of minarets on Swiss soil. The people approved the amendment (65%), even so a large majority of the cantons, not caring about the freedom of religion and cult inscribed in the Constitution. This success was repeated 2010 with the ˈInitiative on Deportation of Criminal Foreignersˈ. Aliens that committed certain listed offenses should be expulsed from the country independently of their residence status. This amendment found only a narrow majority of 52,3%, but three quarter of the cantons also said yes, abating the constitutional guarantees of proportionality and introducing an automatic deportation.

Bilateral Agreements into Question

Although the Bilateral Agreements including the free circulation of persons were approved by the people since 2002 in three votes, the ˈInitiative against Mass-Immigrationˈ was also successful: In 2014, 50,3% of the people and more than 15 cantons accepted an amendment that has put since then the Bilateral Agreements with the European Union into question. The ˈEnforcement Initiativeˈ of 2016 was a SVP-reaction on the Parliament’s decision to allow a hardship clause after the implementation of the ˈDeportation Initiativeˈ. According to the SVP, after a criminal offense no judicial assessment should be applied. The ˈEnforcement Initiativeˈ found harsh last minute opposition by civil society to stop the elimination of constitutional guarantees and did not pass, only 41,1% approval and 3 cantons (see Gross et al. 2018). The series of initiatives show one thing: the check and balances of the constitutional states should be levered out. Immigrants and the relation to the EU are necessary culprits to denigrate the own institutions and to address a sense of frustration with a world so interlinked as it is in Switzerland of our times.

Intention to Overcome the Separation of Powers

The intention is to overcome the separation of powers, essential for the building of the modern liberal constitutional state through the sovereign. This idea reveals a circular understanding of sovereignty, in which self-determination, including its identity connotations gets an exclusive connotation. It was just this connotation of sovereignty that Hannah Arendt criticized in her notion of politics, favoring a political process that is imbedded in a plural, liberal setting protected by the rule of law (“rights to have rights”). And it is just that totalitarian notion defended by Carl Schmitt against the liberal legal doctrine, attacking the modern constitutional state and insisting on the sovereign that should overcome restrictions given by the rule of positive judicial norms (Raimondi 2014:21). The protection of minorities – in Carl Schmitt’s view – is able to reverse the sense of democracies and the essence of majoritarian rule. Such a system – he ridiculed – wouldn’t be a democracy, but liberalism protecting itself from democracy.

The permanent mobilization through direct democracy understood as unfiltered majority rule wants to reshape the Federal State and its society in the sense of a counter-cultural revolution. The objective is to roll the country back before the despised “1968”, the metaphor for the expansion of rights that is inflicting harm to communitarian beliefs. Though this is not an easy task, considering the complexities in a postmodern plural society as the Swiss one. But the agenda is permanently revitalized by a series of propositions of new amendments to limit the division of powers foreseen by the constitution.

Migration Issues as a Tool for Political Mobilization

As a side effect, it is conditioning the other parties to react to the permanent politicization and succeeding in influencing their stand, particularly when it comes to the EU and immigrants. Therefore, the SVP is slowly moving the political focus of Swiss society to the right. Cultural hegemony is tamed today largely by the categories produced by the SVP as a radical right populist organization. Particularly astonishing are the concessions other parties have been willing to make. The orientation that supports including rather than excluding SVP argumentation is all the more remarkable since migration, globalization and its attendant consequences cannot be wished out of the world. As a result, migration issues can always be used if not misused for the purpose of political mobilization (D’Amato and Ruedin 2019).

Migration processes have forced nation states and their societies to rethink their ideas about social cohesion. Switzerland seems to have taken a path in which it wants to shelter itself from the migration policy challenges that globalization confronts it with, nourished by history and myth, for a supposed “special role” for Switzerland. But it is questionable whether burdening national semantics in such a manner can be maintained over the longer term, given continuing societal differentiation. It is astonishing how fearful and spineless other established Swiss parties have been, faced with the voter, and how few alternative ideas are forthcoming, let alone a willingness to craft a migration and European policy for the future. If they nevertheless decide to do so, they will not be able to get around the problem of having to compete with a new and yet seasoned opponent that functions on a populist level.

One should not fall prey to the illusion that one can have a direct democracy that lacks populist aspects. Far more decisive is that democrats in a democratic system are ready to commit themselves to open discussions and to acknowledge realities, including that of immigration. The opposition to misuse democracy through initiatives like the one for ˈSelf-Determinationˈ have been in the recent past fierce and have taken their successes, too. And in good democracies, as we know, the game is never over.

A longer version of the article is being published in “Europe at the Cross-roads: Confronting populist, nationalist and global challenges”, edited by Pieter Bevelander and Ruth Wodak (2019)

References

D’Amato, Gianni and Didier Ruedin (2019) Immigration and populist political strategies. The Swiss Case in European Perspective, in: Gregor Fitzi, Juergen Mackert, Bryan S. Turner (2019) Populism and the crisis of democracy. London : Routledge, 48-65

Gross, Andreas, Fredi Krebs, Martin Stohler, Cédric Wermuth (2018) Freiheit und Menschenrechte. Nein zur Anti-EMRK-Initative. St- Ursanne : Edition le Doubs

Raimondi, Francesca (2014) Die Zeit der Demokratie. Politische Freiheit nach Carl Schmitt und Hannah Arendt. Konstanz University Press, 2014