Has the minaret poll in Switzerland helped in creating an atmosphere against all things foreign and “different”? Minarets, headscarves, Jewish cemeteries, German professors, international law – judging from recent debate in Switzerland one might wonder if they are all contrary to Swiss values.
Who better to define and postulate what is quintessentially “Swiss” than the people themselves in a referendum, just like the one held on 29 November. But this argument brings a queasy feeling and reminds us that there are limits on popular sovereignty.
The “yes”’ to banning minarets has brought these limits to mind, causing a real shock and deep disappointment for many people. I cannot remember any referendum that has divided our country both politically and ethically in a similar manner.
In the widely held discussions after the event there were repeated suggestions that political parties had underestimated the fears some Swiss have that Muslims might segregate themselves and not respect Swiss customs and laws. Are such fears real or simply nothing more than a clever fabrication?
Obviously the responsibility for our political culture has fallen by the wayside. A solution has been found for a problem that our country is not faced with. The sad game of discrimination has once again been played successfully. And, just as in our national playwright and novelist Max Frisch’s play “The Fire Raisers,” normal citizens and “arsonists” have become one, this time through a plebiscite.
It is an undisputed fact that Swiss politics are closely linked to the will of the people than almost anywhere else. The fact that the Swiss are able to take an active role in deciding issues is a part of our national identity and is undeniably one of our country’s special qualities.
Democratically reached decisions reflect the will of the people in a given moment, though, not necessarily a superior wisdom or power. Democratic decisions can be wrong, unjust and impractical, violate the country’s constitution and even violate basic human rights. They can even relate to issues for which the democratic system is quite simply inadequate.
Ironically it was freedom-loving Switzerland,of all countries, that voted for a measure based on religious discrimination that violates both our own constitution and Swiss values and also breaches the European Convention on Human Rights. This is a country renowned for its role in the development of international law, a state whose neutrality has international roots, a nation that stands for tolerance and open-mindedness whose prosperity is based on the global economic network and is home to the International Red Cross!
The issue boils down to two different conceptions of democracy. Under an absolutist interpretation, the people decide, no ifs or buts. In a comparison from the world of art, (Brunnellesci), the central perspective converges in a point determining the order of the composition. Anything that may stand in the way of democracy is deemed suspect: judges, elected representatives, even international law.
In contrast, representatives of a liberal rule of law tend to set out from the interaction of various elements, as is visible – using the analogy of the arts once again – in the popular artist Alexander Calder’s mobiles. The parts are in a constant balance, jointly ensuring the stability of the whole (“checks and balances”). The democratic principle is essentially the basis for the decisions of democratically elected representatives and of the people in direct democracy decision making.
The principle of separation of powers, which forms the basis for judges’ decisions in individual cases, is just as important in a functioning democracy. Human rights and democracy, rule of law and popular sovereignty are not mutually exclusive but rather mutually dependent.
International law is also of equal importance. A more stringent formal and substantive examination of the content of referendums – be it through parliament, the Federal Council, the Federal Court or a special body – is in fact urgently needed.
Any argument that the European Court of Human Rights has no place assessing an issue decided directly by the Swiss people, ignores the role Switzerland played in developing the Court, and the fact that the court is part of the Council of Europe, a body that Switzerland currently chairs.
The debate about the limits of popular sovereignty will surely go on in Switzerland for some time to come. We need to make sure that the discussion is characterized by clarity of analysis, precision in drawing these borders and public education. An absolutized concept of democracy can threaten freedom and is susceptible to misuse. An enlightened people recognizes and acknowledges the limits of its sovereignty and knows that these limitations are what strengthen democracy and freedom.