by Thomas Fleiner
This is analysis of the decisions of the Swiss sovereign on three constitutional amendments and on a legislative referendum that took place on February 28, 20161 . The turnout is usually lower than 40%. This time, however, it was very high with 62% mainly thanks to the initiative of the UDC2 .
With regard to the first popular initiative, the Swiss people and the cantons had to decide whether they accept a new constitutional Article 14 par 2, which would declare the marriage as a community between a man and a woman arranged for continuity. The initiating committee argued that tax legislation should not discriminate against this economic community. The Christian Democratic Party launched this initiative against marriage penalty because the fiscal legislation and the legislation of old age survivors’ discriminates between married peoples and couples living in a concubinage. The party supported this initiative because actually some 80’000 couples and many retired couples pay in comparison to non-married couples more taxes and receive less payment according to the Old-Age insurance legislation. The Federal council proposed the parliament to accept this initiative3. Both chambers of the Parliament discussed a constitutional counterproposal, which the chambers finally rejected. Thus, the Parliament rejected the positive proposal of the Federal council with the main argument that this initiative would constitutionally fix the marriage as the communion between men and women and discriminate against all other possible same or different sex types of communion. In addition, the initiative would exclude a system of individual taxes. As Article 148 of the Constitution determines subject to the rights of the peoples and the cantons the Federal Assembly as supreme authority of the Confederation, the authorities of the Confederation propose to the peoples and to the cantons to reject this initiative4. The majority of the people rejected this constitutional initiative with only 49.2% against 50.8%. However, 16.5 cantons have adopted it. Less populated cantons adopted the initiative but they could not outweigh the small majority of the peoples of most populated cantons. Any constitutional provision requires a double majority of the people and the cantons5. This one received the majority of the cantons but lacked the majority of the people.
Decision of the Swiss on the Initiative for the implementation of the constitution with regard to foreign criminal offenders: 58,8% of the voters rejected and only 4.5 cantons accepted this popular initiative. The controversy on this popular initiative divided the Swiss population in two different emotional camps. After interventions of embittered railway user, the federal railway company (SBB) removed a poster from the railway station in Zurich and Geneva with a Swiss cross-turned into a Swastika (fylfot) sign. The sign promotes voting against the initiative reminding the Nazi history of Germany. Germany and Austria prohibit the use of such signs, which is punishable with three to ten years of imprisonment. In 2010, the Swiss sovereign adopted with almost 53%, against a counterproposal of the parliament, the popular initiative to expel convicted criminals from Switzerland6 and introduced the new Article 121 of the Constitution par 3 to 67. For the first time in the last 125 years, the right wing union democratic party of the center mistrusted the Swiss legislature, which had the mandate to implement the adopted constitutional decision on the expulsion of foreign delinquents, although the legislature adopted the constitutional provision. The right wing Union Democratic Party of the Center (UDC) collected signatures even before the federal council submitted to Parliament its legislative proposal. The Parliament elaborated a law to implement the new article 121 of the Constitution8. Nevertheless, the UDC submitted a popular initiative with a detailed constitutional, almost legislative, text concerning the transitional provisions of the Constitution (Article 197) to oblige the courts to expulse convicted foreign criminals automatically without any discretion. Accordingly, courts would even have the obligation to expulse foreigners born in Switzerland, who committed twice a petty offence. This detailed initiative was even unclear with regard to the special legislation of Switzerland for young offenders under 18 years old. The UDC opposes the legislation to implement Article 121 of the Constitution, which would enable courts not to apply the expulsion in exceptional cases of hardship, that do not damage the Swiss interests. The party mistrusts the courts. It argues that in most cases courts would in fact rather protect delinquent actors and not victims. Exceptionally 11 former federal councils opposed the initiative. Constitutionalists fear that this initiative would destroy the balance of powers between the different governmental branches and in addition, the guarantee of the rule of law, namely the Swiss and continental principle of proportionality. Opponents of this initiative argue that it would degrade the courts to robot automats without any possibility to look into the specific situation of the defendant. Cantonal prosecutors pretend that a constitutional obligation of the cantons to expel delinquent foreigners would increase enormously the procedural costs of the Cantons. In addition, the cantons pretend that they are not able to implement this constitutional provision as provided in the wording of the initiative on the day after the sovereign has adopted it. As a consequence of this verdict of the people and the cantons, the elaborated legislation to implement Article 121 of the constitution will now enter into force9.
The third popular initiative fights against speculation of trade on food and agricultural commodities. The great majority of the people (some 58.9%) and only 1.5% cantons accepted it. This initiative requires that the confederation enacts legislation to control and prohibit speculation with food and agricultural commodities. Because of drought, cold weather and overproduction the prices for wheat, rise, coffee, cotton and other agricultural commodities essential to survive fluctuate enormously on the world market. The respective trade takes place in the US, in the EU and in Asia. Any prohibition of such trade can only be legally efficient within Switzerland and has no effect on firms dealing with such products and trade abroad. People initiating this proposal argue that today some 800 million and during the food crises an additional million people are starving and hungry. One of the reasons for these crises is overpricing (60 and 70 percentage). The laws of many industrial states have curtailed such prices. Switzerland did not follow these states. Both chambers and the federal council oppose the initiative because the initiative does not honor the word it promises. In addition, it would damage the actual economic position of Switzerland.
In addition to these constitutional amendments, some 125’000 Swiss required a referendum (Article 141 of the Constitution requires only 50’000 for a non-mandatory referendum) against a statute on the transit road traffic over the Alps. For the acceptance of a referendum against a piece of legislation, the constitution requires only the majority of the people not of the cantons . Actually, the tunnel through the Gotthard links the car traffic between the north and the south of Switzerland. This tunnel needs substantial improvement. In this mentioned statute, the legislature provides the possibility to construct a new tunnel. However, Article 84 of the Constitution obliges the Confederation to protect the Alpine region from negative effects of the transit traffic. Therefore, this implementing law prohibits the enlargement of the capacity of the tunnels. Many Swiss anticipate that, mainly under the pressure of the European Union Switzerland, will have to open the shortest roadway of Northern and Southern Europe. Therefore, they are convinced that the Parliament and the sovereign will change in some future this constitutional provision including this law protecting the Alpine region and open both tunnels for road traffic. On the other hand, the majority of the two Chambers is convinced that the need for security in the tunnels and the road link to the Tessin and its minority population outweigh this fear and some 57% of the voters accepted the decision of the Parliament.
1. See the explanations to the different relevant issues from the Federal Council for the voters in French: https://www.admin.ch/gov/fr/accueil/documentation/votations/20160228.html.
2. See http://www.bfs.admin.ch/bfs/portal/fr/index/themen/17/03/blank/key/stimmbeteiligung.html.
3. French edition of the announcement of the Federal Council: https://www.admin.ch/opc/fr/federal-gazette/2013/7623.pdf.
4. See also article 10a of federal law on political rights in the French edition: http://www.lexfind.ch/dta/18192/FR/.
5. See Article 195 of the Constitution.
6. See the official publication of the federal chancellery in French: https://www.admin.ch/ch/f/pore/vi/vis357.html.
7. For the English Version of the Swiss Constitution see https://www.admin.ch/opc/en/classified-compilation/19995395/201506140000/101.pdf.
8. See the text in French: https://www.admin.ch/opc/fr/federal-gazette/2015/2521.pdf in particular Article 66 par 2. 9. See https://www.admin.ch/opc/fr/federal-gazette/2015/2521.pdf.