A clear no to the enforcement initiative, a distinct yes to the rule of law
On 28 February 2016, 58.9% of Swiss citizens voted against the so-called enforcement initiative launched by the Swiss People's Party (SVP). The extremist popular initiative was given a surprisingly clear rebuff thanks to a widespread and exceptionally strong mobilisation of various civil society coalitions. Great relief and satisfaction could be felt among anyone working to guarantee fundamental human rights and the principles of the rule of law.
- Ein Sieg der Mutbürger
Article in TagesAnzeiger, 28 February 2016 (in German)
- "Wir haben genug von eurer Angstmacherei"
Interview with Flavia Kleiner, Operation Libero, in TagesAnzeiger, 28 February 2016 (in German)
- Durchmarsch der Zivilgesellschaft
Article in NZZ, 28 February 2016 (in German)
- Ein wichtiger Sieg, aber nur ein Etappensieg
Media release by the NGO coalition against the enforcement initiative, 28 February 2016 (in German)
- Demokratische Schweiz stoppt Wutbürger
Commentary by Schutzfaktor M, 29 February 2016 (in German)
What was the initial situation?
The enforcement initiative wanted to include into the Federal Constitution a long list of directly applicable, detailed provisions on the deportation of foreigners who have committed crimes. According to the SVP, this initiative was aimed at enforcing approval of the deportation initiative voted on in November 2010 and the deportation article in the Federal Constitution (Art. 121, para. 3-6) in force since 2010. Although parliament had since then introduced detailed legislation on the same article overlapping heavily with the enforcement initiative, the SVP had refused to withdraw it and insisted on a vote. Why was this enforcement initiative so dangerous to Switzerland’s status as a constitutional state?
What were the aims of the enforcement initiative?
In many places, the enforcement initiative went way beyond the stipulations defined in the deportation initiative adopted on 28 November 2010. The following provisions of the enforcement initiative were not directly derived from the deportation initiative and were particularly disturbing:
Catalogue of offences extended to the limit
Not only did the initiative include a list of offences punishable by deprivation of liberty for more than a year which would automatically lead to deportation, but in Para. I.2, a second list of minor offences was presented that would lead to automatic deportation if the offender had been sentenced (legally binding) to any fine or imprisonment […] over the past ten years», i.e. should he/she have committed any first offence, irrespective of the sentence.
In reality, this means that if someone living in Switzerland without a Swiss passport receives a fine for verbal abuse and is sentenced (e.g. for menacing an official) within the next 10 years, the enforcement initiative would have called for the person to be automatically deported to the country of origin of his/her parents or grandparents. The «added value» of the enforcement initiative would have been to expel second generation immigrants and other foreigners from Switzerland after just two petty/minor offences.
Repeal the ECHR
Section IV of the enforcement initiative called for its provisions to take priority over non-binding international law.
The Federal Parliament annulled the definition of binding international law that was attached to Section IV of the initiative. But since most guarantees listed in the ECHR were not part of binding international law anyways, they would have lost their legal effectiveness. In particular this would have applied to Art. 8 of the ECHR, the right to respect for private and family life, home, and correspondences. This was the precise human right that was at stake. The initiative would have ignored this and other human rights guaranteed by the ECHR in deportation cases.
Arguments against the initiative
The arguments against the enforcement initiative were of great political importance. The initiative would have destabilised several pillars of Switzerland’s rule of law. What’s more, it would have sent a devastating message about integration.
Negation of the principle of proportionality
The enforcement initiative would have resulted in automatic deportations for many offences, negating the principle of proportionality and legal case-to-case assessment when human rights are restricted. This would have been a major violation of our legal system which is based on justice in individual cases.
Unprecedented disregard of human rights
For the first time, the constitution would have included an article stating that all ECHR guarantees that are not binding international law could be overridden by certain constitutional provisions. In particular, the right to family defined in Art. 8 of ECHR would no longer have applied in deportation cases.
Even the principle of non-refoulement (a binding international law preventing deportation, if the persecuted person might be subject to torture, inhumane treatment or punishment) would have been unlawfully restricted since the cantonal courts would have been given the final ruling on such complaints.
A potential termination of the ECHR would have been accepted
Implementating the initiative would have resulted in Switzerland frequently and systematically violating the ECHR. As a result, Switzerland would also have been more frequently sentenced by the European Court of Human Rights. Since corrective measures would have failed to show, the Council of Europe would have put pressure on Switzerland to implement the initiative in agreement with the ECHR. In the long term Switzerland would even have risked ending the ECHR. Some SVP representatives had admitted before the vote that if the initiative were adopted, a possible termination of the ECHR would be accepted. The SVP was therefore jeopardising this principal instrument of international human rights protection.
Planned violation of international law
This would have been the first time that the precedence of state law over international law (a key part of SVP ideology over the past few years) could have been written into the Constitution. This would have result in a breach of international law.
The enforcement initiative would also have violated the EU freedom of movement agreement, since EU citizens living in Switzerland could have been deported even after minor offences. This additional breach of contract would have considerably weakened the Swiss position in the renegotiation of the free movement of persons treaty.
Destructive message to second generation foreigners
If the enforcement initiative would have been adopted, it would have had the biggest effect on the many people with a foreign passport living in Switzerland all their lives. At any time, they could have been wrested from their familiar settings and be sent into a new environment completely foreign to them. This sword of Damocles hanging above their heads woould have had an extremely negative effect on the integration capacity of the second generation foreign nationals living in Switzerland. The adoption of the initiative would have facilitated a permanent uprooting of this part of the population.
Misuse of the popular initiative as a political instrument
The enforcement initiative represents a misuse of the popular initiative as a political instrument because it would have written a detailed legal provision into the Federal Constitution. Legislation is the task of Parliament.
The enforcement initiative ignored the Parliament’s role to decide on laws in principle, and on a factual level after it has done its work. This was all the more problematic since Parliament wrote the respective legislation on time. The enforcement initiative was subversive because it purposefully undermined the legislative competences of Parliament and public confidence in the work of Parliament.
Weakening the Federal Supreme Court
The adoption of the enforcement initiative would have put Parliament and the Federal Supreme Court in a very unpleasant position. According to its prevailing case law, it would have still stuck to the ECHR human rights guidelines irrespective of new regulations (cf. Supreme Court judgement BGE 139 I 16 E. 5, (in German)).
If it upheld this position, there would have been a populist campaign against the Supreme Federal Court and the court’s public reputation would have been seriously damaged if it did not change tack, which it is unlikely to do.
If the Supreme Federal Court gave in to political pressure and upended its jurisdiction on this key issue, it would lose credibility and authority for a wider public, especially in legal circles. No matter how the Supreme Federal Court reacted, its high reputation would be tarnished.
On the deportation initiative
- Deportation article in the Federal Constitution: Art.121 Para. 3-6
- Implementation of Art.121 Para. 3-6 of the Federal Constitution on the deportation of criminal foreigners
Adopted by Federal Parliament on 20 March 2015 (pdf, 16 pages in German)
- Implementation of the deportation initiative includes hardship clause
Article on humanrights.ch, 6 March 2015
On the enforcement initiative
- Wortlaut der Durchsetzungsinitiative
Federal decree, 20 March 2015 (pdf, 5 pages in German)
- Zur Durchsetzung der Ausschaffung krimineller Ausländer (Durchsetzungsinitiative)
Documentation on parlament.ch (in German)
- SVP-Durchsetzungsinitiative: Der Schweizer Rechtsstaat am Scheideweg
Media release by humanrights.ch, 7 October 2015 (pdf, 1 page in German)
- Durchsetzungsinitiative - was bedeutet das «zwingende Völkerrecht»?
Article on humanrights.ch, 23. November 2013 (in German)
- Appelle, Argumentarien und Materialien gegen die Durchsetzungsinitiative
Collection of articles in German on humanrights.ch
On the initiative against foreign judges
- Gegen die Fremde-Richter-Initiative der SVP, für unsere Rechte
Article on humanrights.ch, 11 March 2015 (in German)