Fifteen Eighty Four

Switzerland is the country where the popular referendum is by far most widely used in the world.

Citizens are called four times a year to decide on many issues at the federal, cantonal, and communal level. Does this mean that all the power is with the people? February 28, 2016 was an interesting test case for this question.

The right wing Swiss People’s Party had launched a popular initiative that would have severely violated the national constitution and international human rights in requesting that foreigners would be automatically expelled, if they committed crimes even of a minor nature like shoplifting. Parliament and the courts would have no say. What the people decided would have been the ultimate verdict.

The supporters of this initiative argued that parliament and the courts were too lenient with criminal foreigners, so that the people itself had to step in and put things in order. Those opposed to the initiative expressed great concern that all residents of Switzerland including foreign residents had the right to be heard by a court before such a severe measure was executed. The opponents further strongly argued that such a severe measure would violate international human rights.

So the big question in the referendum campaign was whether in Switzerland the people is always right, or whether it has to share its power with parliament and the courts. After a very emotional campaign the Swiss people voted with 59% against 41% clearly against the popular initiative, setting limits to the absolute power of the people.

In my view, this was a wise decision because in a good democracy power should not only be with the people but also with the courts and parliaments. Now the bill decided by parliament can be enacted, according to which most criminal foreigners will still be expelled, but in cases of great hardship the courts can make an exception and not expel a criminal foreigner.

There are also referendum decisions in Switzerland, where the people indeed monopolized its power and violated constitutional rights and international law.

The best known case which was also negatively noted abroad, was the decision of the Swiss people not allow any further constructions of minarets. This decision clearly violated the right of religious freedom of the Swiss constitution and also international law. Switzerland has no constitutional court that could declare popular initiatives as unconstitutional. Swiss parliament is also extremely reluctant to declare a popular initiative as invalid. In the political culture of Switzerland there is a strong notion that the ultimate decisions should be made by ordinary citizens in popular referenda.

As the case of the minaret shows, this can lead to very negative situations from a democratic perspective, where the people decides things that are against its own constitution and international law. The power of the people always need to be balanced by the power of parliament and the courts.

In many countries there is an increasing trend to refer important decisions to referenda. Switzerland offers the warning that the use of the referendum can also be problematic.