Swiss voters overwhelmingly approved a ban on construction of minarets on 29 November 2009. This is a blow to the multicultural image of a country where some 400,000 Muslims — representing some 4,3 per cent of the population (see box) — are well integrated and can be considerate as moderate, in any case miles away from any fundamentalist cliché. Most of these residents came from the Balkans in the 1990s and only a minority are practising. True, they are mostly new incomers; not all master the political and cultural codes of their new country. This may explain why thsee moderate and tolerant Muslims experienced such difficulty in presenting themselves as a positive force and making themselves politically visible, as Tariq Ramadan has recommende they do. They have had less influence than they should have had on this result.
The adopted constitutional change — clearly discriminating one religious group — is undoubtedly against the international law; indeed the European Human Rights Convention (ECHR) plainly forbids discrimination in the protection of fundamental rights. Thus, the Strasbourg-based court could rule against this unexpected but unequivocal manifestation of Swiss xenophobic populism. This would bring Switzerland — currently in the chair of the Council of Europe, and party to the ECHR as well as to the UN Covenant on Civil and Political Rights (UN Covenant II) — into murky legal waters.
The country’s authorities would then have to defend the constitutional amendment that was opposed by the both the Parliament and the Federal council (the Swiss government) — which emphasised on 27 August 2008 how the initiative violates religious freedom and the discrimination ban, contradicts the core values of the Federal constitution, endangers peace between religions, and hinders integration. The same document further explicitly states that the initiative is “irreconcilable with the various human rights that are guaranteed by the European Convention on Human Rights (ECHR) and by the UN Covenant on Civil and Political Rights (UN Covenant II).” With the minarets ban now included it its constitution, Switzerland becomes a nonsense Wonderland.
It is high time the Swiss authorities seriously consider the contradictions and conflicts between national and international law. As for today, the Swiss constitution prohibits referenda that conflict with the core values of international law (droit international impératif); but this doesn’t apply to referenda that violate any general dimension of international law (droit international général). The Minaret ban forces the Swiss authorities to review this tricky issue. Eventually, the newly adopted constitutional change may be impossible to implement due to thiscontradiction. For sure, the Swiss constitution should rule out referenda that violate the ECHR. An appropriate professional institution such as the Swiss Federal Court should be made responsible for scrutinising consistency with the ECHR, as it already is for scrutinising consistency with the Swiss constitution.
Despite the fact that the referendum focuses on Minarets and not Mosques — the country has some 400 mosques but only 4 Minarets; that the vote was neither against the Muslim community nor against Islam as such, many Muslims consider the Swiss people voted not against minarets but against Muslims and the collateral damages are obviously huge. The image of a tolerant country, in which people of different religious faith lives together in harmony is seriously compromised. Now more than before, religious and political dialogue is needed in order to reconstruct a proactive and modern freedom of religion.
The country, long considering itself a model of tolerance, is becoming a desperate Adventureland — with no idea where the journey will end. The political elite proved totally unable to foresee the outcome of this referendum. Worse, the absence of any leadership paves the way for other moves — we may for example well imagine a ban on the Burka — orchestrated by the ultraconservative Swiss People’s Party (SVP/UDC) which has become in the past years the confederation’s biggest political party.
The reaction of civil society (itself very weak) reminds one of the sense of emptiness experienced on November 6th 1992, when the Swiss population rejected by referendum the Treaty establishing the European Economic Area. Since then, the Swiss membership to the European Union has been blocked, and there are no signs of hope on the horizon. Here again, the political and intellectual elites had proven themselves unable to initiate a constructive process of bringing the country closer to the EU. Damage control seems the only possible reaction of a political class increasingly loosing control of the situation.
A politics of change will need much more than courage. An out-dated political class must resign and give space to a new generation motivated and able to reconstruct the Swiss model of democracy and tolerance, and to face the challenge of integrating the country to the Union.
As for now, the tales circulating in this Fantasyland are perilous ones. Bosnia and Herzegovina sometimes dreams of becoming the Switzerland of the Balkans. But now it is Switzerland that experiences the nightmare of moving closer to the fate of a divided country.