Just say no to Swexit

A year and some after Switzerland’s plucky protofascist poster art collective cum Trumpist political party, the SVP (Swiss People’s Party), screamed Verfassungsbruch! (lit. “Constitution break!”; fig., accusative: “you’re breaking the Constitution!“) on the floor of Parliament at the admitted non-implementation of their unimplementable vandalism of the Swiss constitution in the name of nativism, they’re back at it again with the almost-reasonable-sounding Selbstbestimmungsinitiative (lit. “self-determination initiative”; SBI if you’re into hashtags). One has to read the details to see how broken it is. Let’s have a look.

In Article 5 “Principles of the Rule of Law”, text in italics would be added (translations mine):

  • (1): The actions of the state are based on and limited by the law. The Federal Constitution is the highest source of law in the Swiss Confederation.
  • (4): The Swiss Confederation and the cantons observe international law. The Federal Constitution is above international law, subject to the mandatory provisions of international law.

Par for the course for SVP initiatives, the text in clause 4 now appears to contradict itself. How can the Swiss Confederation observe international law (in the sense of being bound by it, implied by beachten in the German text) if the Federal Constitution is above it? How can the Federal Constitution be above it if it is “subject to the mandatory provisions” thereof? The addition to Article 5 Clause 1 further seems to be superfluous, due to Article 3 (my translation):

  • The cantons are sovereign, as long as their sovereignty is not limited by the Federal Constitution. They exercise all rights not assigned to the Confederation (implied: by the Federal Constitution, ed.).

Three, as my daughter would insistently correct you since she was two, comes before five, so anyone who has read the constitution in the customary order should already know this. The authors seem to want to make a statement about sovereignty here, without having read the document which anchors the concept in Swiss constitutional law.

Okay, so far so confused, next:

Article 56a “Obligations under International Law” would be added in full, to follow Article 56 “Foreign Relations of the Cantons” (translations mine):

  • (1) The Confederation and the cantons will not enter into any obligations under international law that contradict the Federal Constitution.
  • (2) In case of contradiction, they will adapt their obligations under international law to the requirements of the Federal Constituion, if necessary by abrogating the relevant international treaties.
  • (3) The mandatory provisions of international law shall remain reserved (i.e., are not subject to clauses 1 and 2)

On first reading, this article looks like a no-op, aside from that pesky abrogation bit. And that’s the knife-edge of the initiative: it takes the job of balancing the will of the people (as reflected in changes to the constitution by referendum) and obligations prior and future the state has entered on behalf of the people away from the judiciary, and sticks it in the constitution. The outcome of that is not clear to anyone, really, which is why the Ja and Nein campaigns don’t even really seem to agree on the facts, a relative novelty in Swiss politics.

To understand why the SVP wants this text in the Constitution (for reasons other than sheer vandalism), you have to go back and look at the SVP’s entire policy platform has been for at least the past decade I’ve been paying attention to it.

First of all, the SVP hates foreigners, which becomes relevant in the following paragraphs.

Second, the SVP hates the EU, and in this context the SBI is best interpreted as a mild step toward Swexit, the end of the bilateral agreements that meant that, even prior to Brexit, should it come to pass, Switzerland is de facto more subject to European regulation than the UK. Much of the policy platform that hasn’t been directed toward protecting Switzerland from evil foreigners is directed toward driving a wedge between Switzerland and the EU. While the EU doesn’t really like the exceptional nature of its relationship with Switzerland’s relationship, change is not really on the agenda, and the status quo is relatively stable. Neither an end to the bilateral agreements (let’s call that “hard Swexit”) nor full membership (let’s call this “accession” because “Swentrance” is hard to say) is capable of getting a majority in a referendum in Switzerland. It’s not clear why the SVP remains obsessed with staying out of Europe, beyond the obvious issue that Europe is full of foreigners, together with a fundamental misunderstanding of physics.

Third, the SVP is not a big fan of judges or the legislature, largely because judges and the legislature have not really been all that helpful in the SVP’s quest to rid Switzerland of foreigners and the EU, and most recent SVP proposals feature some automation-of-law, removing judicial oversight from individual cases. The last time the SVP endangered the bilateral agreements with the Masseneinwanderungsinitiative, which featured all three of the themes above, parliament simply failed to implement it (hence “Verfassungsbruch!”), more or less since implementing it would force abrogation, which nobody aside from the SVP wanted to do. In this light, the SBI is best understood as an attempt to keep Parliament from doing that again. It is not at all clear from the confused content of the initiative that it would.

That is reason enough to reject the initiative: regardless of what one’s actual aims are, it’s not really well-written enough to know what it will achieve, though we do know what its authors want, and in any case mucking about in the circuitry of international relations without knowing what you’re doing is potentially dangerous stuff.

Compounding this, the SVP also seems to be rejecting its calling as a protofascist poster art collective. For this campaign, they’ve given up the 1930’s red-white-black color scheme and are trying out a softer What-The-SVP-Thinks-Average-Swiss-People-Look-Like-Saying-Yes motif:

poster on a truck

(Side question, asked earnestly: how many of those international treaties the SVP wants to be able to automatically abrogate does it take for a Swiss person to safely drive that truck in one of the rallyes it was clearly built to run?)

Now this campaign doesn’t do that much for me, because I know what it’s trying to sell me, but I’m afraid the low-on-facts, high-on-the-Swiss-equivalent-of-motherhood-and-apple-pie angle might resonate with enough of my fellow citizens to let this one accidentally squeak by. This continuation of the SVP’s program of the Americanization of Swiss politics, assault on the foundations of the pluralistic, democratic rule of law enjoyed by Switzerland is worth opposing vigorously even if current polling gives it very little chance. At least 50.1% No is necessary to keep this initiative from damaging Switzerland’s international relations, intentionally or no. A more thumping repudiation (say 71% No, as we saw with the NoBillag attempt to lay the groundwork for a Fox-Newsification of Swiss media) won’t make the SVP go away, but it would make it clear, again, that Switzerland isn’t interested in yesterday’s solutions to nonexistent problems.

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Brian Trammell
Curmudgeonly Pseudoacademic