Swiss Review 5/2018

Swiss Review / September 2018 / No.5 11 tional law was stirred not least by a ruling of the Federal Supreme Court which gave the Agreement on the Free Movement of Persons (FMP) precedence over federal law: “The Self-Determination Initiative nowwants to ensure that such rulings are no longer possible in future, promising a simple solution at first glance. The initiative, however, nei- ther rids the world of the free movement of persons, un- popular with the SVP, nor does it provide legal clarity: the FMP was subject to referendum within the framework of the Bilateral Agreements I and therefore remains – as per thewording of the Self-Determination Initiative – binding for the Federal Supreme Court. In the event of conflict, it is the judges in Lausanne who decide.” Focus on human rights issues However, if the initiative is accepted, the European Con- vention onHumanRights (ECHR) would no longer be bind- ing for the Federal Supreme Court, according to KathrinAl- der. “At the time it was ratified, key international agreementswere not yet subject to referendum. Its conflict- ing constitutional law would take legal precedence in fu- ture, with uncertain legal consequences.” The NZZ corre- spondent writes that the initiators “kick the dog, butmean the master: our ‘own’ judges in Lausanne are more annoy- ing to the initiators than the ‘foreign’ judges in Strasbourg. Because it was the Federal Supreme Court that decided that ECHR and FMP take precedence over federal law. The SVP purport to want to strengthen direct democracy with the Self-Determination Initiative. In truth theywant toweaken judicial power, namely the Federal Supreme Court of Swit- zerland. The initiative creates no conclusive hierarchy be- tween national law and international law, rather first and foremost, legal uncertainty.” The human rights issue is likely to play a key role in the referendum campaign. The Federal Council is warning, in the event that the initiative is accepted, of an “undermin- ing of international human rights protection, particularly the guarantees of the ECHR”. That could lead to Switzer- land no longer being able to apply provisions of the ECHR. “In the long term even Switzerland’s expulsion from the Council of Europe is not ruled out, whichwould amount to a termination of the ECHR.” The Council of Europe and ECHR, however, are of “vital concern” to Switzerland for the stabilisation of the constitutional state, democracy, se- curity and peace throughout Europe, the Federal Council- says. In parliament too SDI opponents accused the initia- tors of wanting to override fundamental rights. This would bring with it the threat of arbitrary rule by the ma- jority. A Yes for the initiative would result in the termina- tion of the ECHR, it was said. But the ECHR gave citizens the opportunity to defend themselves against the state, if necessary. For Hans-Ueli Vogt, professor of law in Zurich, SVP Na- tional Councillor and ‘father’ of the SDI, none of that mat- ters. In an interview with the “Weltwoche” when asked if he was undermining human rights, he said, “No. The pro- tection of human rights in Switzerland does not depend on a foreign court. Human rights are already protected in our Constitution.” The organisation Schutzfaktor M, that stands for pro- tecting human rights, in contrastmaintains: “We need the ECHR even if fundamental rights are guaranteed in our Constitution. For these fundamental rights are not set in stone. Amajority of the people and the cantons can change the Constitution. In this manner the fundamental rights guaranteed in the Constitution can be amended or even abolished based on a popular initiative, for example.” Schutzfaktor Mhas been fighting for years against the SVP initiative, together with more than 100 other Swiss organ- isations. The referendum campaign will be very tough . The par- liamentary debate offered a foretaste of this. SVP parlia- mentary group head Thomas Aeschi spoke of a “coup d’état” by the initiative opponents who wanted to revoke voters’ self-determination. Another jab was thrown in by SVP Na- tional Councillor Roger Köppel: “What is taking place here is the stone-cold disempowerment of the people. It is a sei- zure of power, a type of putsch by an elite political class nei- ther willing nor able to protect the political rights of the people, to which they have made a solemn oath.” The “po- litical elite, intoxicated by power, is fiercely determined to usurp popular sovereignty”. Köppel described all his polit- ical opponents in the National Council as “non-democrats whowrongly call themselves representatives of the people because other countries are closer to them than Switzer- land.” Do cow horns belong in the Constitution? On 25 November 2018 Switzerland will also vote on the “Horned Cow Initiative”. Its aim is to give agricultural livestock their dignity back and to lay down in the Constitution that horned cows and goats receive compulsory subsidisation. At the centre of the initiative committee is mountain farmer Armin Capaul. Opponents of the initiative argue that the animals are de-horned to prevent accidents. Also, it is a business decision as to whether one wishes to keep farm animals with horns or without. Initiators and a Left-Green minority in parliament found, however, that for the animals, the cauterising of their horns is linked to anxiety and pain and contradicts the animal welfare act. The Federal Council and the majority of parliament members rejected the initiative. (JM)