One of the pillars of governance in the Swiss Confederation is direct democracy by referendum. The system that puts contentious issues to a national vote is well-established, and binding upon the government of the Confederation.
Or so it has been up until now. In 2014 the Swiss people voted to restrict mass immigration by imposing quotas. Now the government is balking at the implementation of what the people voted for, because it conflicts with Switzerland’s treaty obligations with the EU and violates “international law”.
The Swiss controversy over immigration highlights an issue that has come to the fore throughout the West: Who shall be sovereign, the State or the People?
Citizens of Western democracies overwhelmingly oppose more mass immigration. But the entrenched ruling elites disagree, and want to impose immigration upon the people against their will — for their own good, mind you. Because the bien-pensants who govern us know better than we do about what promotes the general welfare. It is We the Peasants rather than We the People. And everyone knows that peasants must not be allowed to manage their own affairs, otherwise they will make a mess of things.
The following essay discusses the situation in Switzerland, which is approaching the deadline for the implementation of the referendum on immigration. Many thanks to Ava Lon for translating this op-ed from the Swiss Daily Le Temps:
Mass immigration: Is popular fear a good counselor?
by Etienne Grisel
November 28, 2016
Constitutionalist Etienne Grisel is an honorary professor at the University of Lausanne.
If the Council of States joins the National Council this week on the issue of the implementation of the initiative voted on 9 February 2014 [in a national referendum], the popular vote will be deprived of effect, in an unprecedented violation of the Constitution, according to the constitutionalist Etienne Grisel.
The Brexit will take place; Mr. Trump will take office: the decision of the people is respected, whether it’s liked it or not. But if the Council of States joins the National Council, the vote of 9 February will be deprived of effect, in an unprecedented violation of the Constitution.
Repeated appeals to respect the popular will are heard by one elected official as “constitutional quibbles”. Yet it is not a matter of form, but of the functioning of institutions, and especially of the right of initiative, which is our essential freedom.
Without worrying about the opinion of voters
The majority of citizens and cantons have chosen to subject immigration to autonomous management. The so-called “law of application” of Article 121a prepared by the Chambers means precisely the opposite. It is true that the proceedings are not over, and that neither its duration nor its outcome is known.
For the time being, it appears that MPs consider that they alone are empowered to identify the general interest, regardless of the opinion of their constituents. In a democracy it is not a matter of knowing who is right or wrong about the substance, a subjective and always debatable question. But it is important to determine who, the people or the representatives, has the last word.
The Federal Council lacked coherence
The Federal Council has certainly lacked coherence and cohesion. It had to either quickly introduce a bill to meet the deadline or wait for the outcome of the negotiations. Both attitudes had their defenders. But the Federal Council did not take either route. It preferred to start and then interrupt talks to introduce a late bill that could not enter into force within the deadline of February 9, 2017, given the right of referendum.
This proposal was rejected by the National Council, which replaced it with a very different version. The representative of the Federal Council had immediately and openly approved the proposal for a “light” implementation. She could hardly defend the government’s position, as collegiality made it her duty.
Political line all the less legible
Moreover, it seems strange that a file of such scope should be entrusted to three different heads of department, without the division of responsibilities being clearly established and made public. The political line seems all the less readable.
The refusal to apply the new Article 121a is based on pseudo-legal arguments. According to some, the initiative would be unworkable, whereas it merely implies a return to the legal situation in force until 2009: it is therefore practicable, despite its disadvantages.
For others, it would be contrary to international law, a manifestly erroneous proposition. The free movement agreement binds Switzerland, but not for eternity, and each party to a bilateral convention may ask to renegotiate, and legally terminate the treaty if the process fails.
The authorities deceive the people
As soon as the initiative “Against Mass Immigration” was filed, everyone knew that it was incompatible with the LAC and that it challenged relations with the EU. But neither the Federal Council nor the Chambers have questioned the validity of popular demand. No proposals have been submitted to Parliament for its annulment. When the authorities validate an initiative and then claim that it is inapplicable, they deceive the people.
The national advisers wasted their time discussing whether international law prevails over the federal constitution or vice versa. But the problem does not arise, since Article 121a does not in any way violate international rules on the law of treaties.
This is called a coup d’état
Some still claim that the Alps initiative would not have been carried out and that there would be a precedent. They forget that the Confederation has, in order to realize the transfer from road to rail, built the longest base tunnel in the world and spent about 20 billion francs.
It is also said that the people were — or would have been — deceived, and that they would have changed their minds. In this case, the RASA initiative should be submitted without delay by ballot. But they [the government] refuse, judging a new vote “dangerous”. It is therefore a question of thwarting the popular will. This was undoubtedly exercised badly, but this is partly the fault of its opponents and the Federal Council, which carried out a notoriously insufficient campaign. However, is the fear of the people a good counselor?
The mandatory nature of a vote is so self-evident that it is not even included in the Constitution. But its effectiveness depends on the good faith of the legislator. If they can in fact evade their duty, for want of a judge to compel them, sovereignty of We the People is confiscated, democracy is no longer semi-direct, and the system becomes representative.
When a power abuses its position of force to impose its views, in defiance of the institutions, it is called a coup d’état.