The great and wise among the elites who govern Switzerland are unhappy with direct democracy, and disapprove of popular referenda that have “gone too far”. Needless to say, recent initiatives banning minarets and restricting minarets are among the ballot items that should never have been allowed, from their point of view.

Many thanks to JLH for translating this article from Schweiz am Sonntag:

A Controversial Plan: Higher Hurdles for Initiatives

by Alan Cassidy
October 4, 2014

The Council of States is rolling out comprehensive plans: More initiatives could be null and void

Too detailed, too rigid and problematic — Many folk initiatives go too far for the National Policy Commission of the Council of States. Now it is making controversial suggestions.

The National Policy Commission (SPK) is not exactly known as a treasure trove of revolutionary ideas. That could soon change. Its members see the state as being in peril from a piling up of folk initiatives that is harming the constitutional system. So they are now developing the basics for preventing awkward initiatives from even getting to a vote.

We now know what specific ideas the councilors are testing. They are in the report to the Economic Commission (WAK) which the SPK authored for assessment of inheritance tax initiatives. Schweiz am Sonntag has a copy. The proposals are comprehensive. If they were already operative, Parliament would have had the power to stop many referenda in recent years. They concern not only initiatives, but even their interpretation by Parliament.

The SPK intends to expand the criteria under which a referendum can be declared invalid by the Parliament. Presently, that is only possible if a referendum violates unity of form or subject matter or violates mandatory international law. Parliament has declared a referendum invalid on these grounds only four times.

This latitude is too narrow for the SPK. In accord with its recommendations, the Federal Assembly should also be able to intercede if a referendum violates other principles. Specifically, it names the discrimination ban, the principle of proportionality and the prohibition on retrospective legislation.

The first two proposals, especially, are potentially explosive, because they can be very broadly interpreted. Referenda are regularly called “disproportionate.” Is it proportional if a 22-year-old apprentice trainer who is having consensual sex with his 17-year-old girlfriend is no longer allowed to train apprentices? That is what the pedophilia referendum required, which was passed in May of this year. According to this interpretation, it would have had to be declared invalid.

The accusation that a referendum is discriminatory — according to how this is read — applies to several referenda of past years — above all, the minaret initiative of 2009. Its opponents argued in the campaign that a ban on minarets discriminates against Muslims.

The councilors are also irritated that many referenda are formulated at too great length and with too much detail. Therefore, according to the report, the SPK is thinking of “ensuring a sensible division of labor.” Referenda should be confined to “regulation of basic principles” and not be able to override Parliament’s latitude to interpret.

The proposal is controversial because its effect would be to make many referenda vulnerable. At present, a non-partisan group is collecting signatures for a speed limit of 140 kilometers on the autobahn. Is that a “basic principle”? How does that comport with the “welfare scamming” referendum which is the constitutional entry point for detailed criminal sanctions?

The councilors intend to expand the interpretation of mandatory international law. This should include the principle of proportionality. In practice this proposal would mean that any referendum which provided for automatic restriction of a[n internationally proclaimed] human right could be declared invalid. This includes, for example, the SVP’s deportation referendum and enforcement referendum but also the statute of limitations referendum.

The SPK wants to get into not only the question of validity of referenda, but also their implementation. Accordingly, the Parliament could be required to produce a “harmonizing interpretation.” That is, implementation must not only be based on the wording of the referendum, but must also “comprehensively” take the federal constitution into account.

This proposal also has hidden potential for conflict. It is essentially true today that the existing stipulations of the constitution remain in force if a new article is added after a referendum is passed. However, if the balance of present law versus new law is too strongly shifted, that has to do with the substance of direct democracy. That is Parliament could then theoretically argue against the implementing of a referendum by citing human rights. Perhaps the ban on termination pay, as required by the welfare scammer referendum, cuts too much into economic freedom?

These plans for reform also mean that the question of constitutional jurisdiction is being put back on the table. Parliament alone deciding the validity of referenda is less realistic, especially if the criteria are expanded. In the SPK’s view, the federal court could have a say in the questions of the validity of referenda, or could even decide them.

The SPK intends to enlarge upon its proposals with legal experts in the coming months and to have them in order before the middle of next year. Its members are aware of the controversial nature: “We have checked out the field,” says the commission president, Verena Diener (GLP — Zurich Canon GreenLiberals). The content of referenda, she said, has changed drastically in the past years. “Trial floating of implementation initiatives, for instance, is a completely new wrinkle.” Therefore, it is a good idea to thoroughly reflect on the referendum law.

Law professors have diverse reactions to the proposals. The Basel constitutional law expert Markus Schefer is skeptical of invalidity regulations; “A strength of our referendum law is that even questions with no possibility of a majority make it to a vote.”

International law expert, Daniel Thürer, would approve new obstacles. The vaguer the principle, so much more important is the question of who will decide on the validity of initiatives, he believes. “It would be sensible to have a commission made up of parliamentarians, recognized experts and representatives of civil society, who would form a sort of council of the wise,” says Thürer. This commission should have the authority to decide the validity of a referendum before the collection of signatures. This decision could be challenged before the federal court.