Swiss accept initiative to “Stop Mass Immigration”: Legal Implications (Part III)

The recent success of Switzerland’s popular initiative aimed at stopping “mass immigration” came as an irritating surprise and might have caused some confusion. A closer look at the newly adopted constitutional text (an English translation of the text is available here), however, shows that while its prose is ample, its legal reach is surprisingly narrow.

The present analysis is the third of three posts on this matter (the first introduced the domestic legal background of the vote, the second focussed on the bilateral relations between Switzerland and the European Union) and will first focus on the constitutional guarantee of direct-democratic participation-rights. Then it shall discuss how the process of interpretation and implementation has to be carried out, taking into account precisely the underlying rationale of those participation rights. Finally, we shall discuss the legal impact the new constitutional text actually has on the relationship between Switzerland and the EU.

I. Democratic participation defines its own limits

The political rights guaranteed by the Swiss Constitution (Article 34 paragraph 1 of the Federal Constitution of the Swiss Confederation) are defined as the freedom of the citizen to form an opinion and to give genuine expression to their political will (Article 34 paragraph 2). Any undue interference with the formation of a political opinion or distortion of its expression constitutes a violation of political rights.

The expression of political opinions can only be free and undistorted if the subject matter is unequivocal. Therefore, in rare cases, a draft initiative that already has summoned 100,000 signatures but appears to be incompatible with Article 34 paragraph 1 can be ruled void by the Federal Assembly. This may happen if the proposed partial amendment of the Constitution doesn’t respect the “unity of subject matter” – rule (which follows from Article 34(1) and is explicitly required by Article 139(3) and 194(2) of the Constitution). That rule basically requires that a popular initiative preserves some thematic unity and does not include confusing combinations. To force voters to either adopt or reject a proposal that combines unrelated and complex subjects could infringe upon their right to freely build and genuinely express their political opinion. Most importantly, it could jeopardize the proper subsequent interpretation and implementation process. A prudent (i.e. not politically motivated) application of the consistent-subject-rule is as sensitive as the rationale underlying it: To know what the majority wants is only possible if the question submitted to popular opinion is unambiguous. In contrast, to subject a constitutional amendment that is ambiguous and opaque to majority-vote is futile. The majority called upon to give its opinion would in reality lack any determined object to agree or disagree on.

Article 34 paragraph 1 and the consistent subject rule seldom lead to the invalidity of a voting proposal. This is partly so because of another rule, in dubio pro populo, which states that in cases of doubt a popular initiative should be subjected to popular opinion and not be ruled out as void. The consequence of this understandable leniency however is that voters often have to decide about complex and ambiguous matters, which in turn makes the whole interpretation-process more challenging.

II. Why is the interpretation of initiatives challenging?

The purpose of interpretation is to identify the legal reach of the new constitutional text and to determine what measures it prompts the legislator and the government to take.

The adopted initiative thereby has to be interpreted in a way that is as compatible as possible with all other constitutional norms. The four standard interpretation methods (grammatical, historical, systematic and teleological interpretation) do also apply, at least in theory. In practice there’s little room for a systematic interpretation and almost no room at all for the historical one. The reason: the process leading to the adoption of an initiative does not produce much legislative material that could help understand the purpose of the product.

So why not resort to the understanding of the initiative-committee when interpreting their new constitutional text? Simply: because it’s not theirs. All the intentions and desires of the initiative-committee which did not find unequivocal expression in the initiative itself are political in nature and thus legally irrelevant. A better way to grasp the constitutional meaning of the adopted initiative is to analyse it as if it were a contract. Which agreements (shared by at least 50 % of the voters!) does the “contract” contain? Which legal significance and which consequences did the heterogeneous majority reasonably have to expect, given the text they agreed to? When implementing the popular vote it might be most sensitive to have a closer look at those voters who first hesitated and later supported the proposal. They are the decisive ones; the majority-makers. Their positions tend to be comparatively moderate and that’s precisely why these positions are more likely to reflect the minimum-agreement covered by the whole majority.

That said, all parts of the initiative that are unambiguous can be assumed to be part of the shared consent of the majority. On the other hand, everything expressed in an ambiguous or even contradictory way is likely not to be part of the majority’s common expectations. The constitutional guarantee of political rights described above demands that we treat ambiguous parts of an initiative as what they actually are: unanswered questions and thus gaps. Such gaps can only be filled by resorting to some norm external to the initiative itself. A good place to search for an external answer is the constitution itself. Another proper place is the ballot box: Ask again – but in a specific, unequivocal way.

III. Measuring the mandate: What the Swiss decided

We shall now consider those parts of the popular mandate that may affect the bilateral relationship between Switzerland and the EU. What did the majority actually agree to?

The majority did clearly agree to renegotiate and adjust treaties, which conflict with the intended new immigration policy. The only treaty clearly concerned is the Free Movement Agreement. The government will thus have to seriously try to renegotiate it. The crucial question however is: does the adopted initiative provide for a subsidiary obligation to withdraw from the whole Free Movement Agreement in case the renegotiation fails?

Certainly not! For a variety of reasons: First, the initiative-committee itself argued that it did not want to withdraw from the treaty (see p. 42 of the voting-brochure). Second, there isn’t any passage in the adopted constitutional text that could be understood as requiring it. If a decision of such major importance doesn’t figure in the constitutional text explicitly it most likely hasn’t been agreed to at all. To assume that the majority had agreed to a measure of such a dimension implicitly could well amount to a serious distortion of the majority’s expressed opinion.

Let’s nevertheless insist: Hasn’t the majority expressed its principal disagreement with the status quo of the Free Movement Agreement? Yes it has. This however doesn’t at all signify that the majority agreed to withdraw from the treaty if necessary! It didn’t. To deduce a willingness to cancel a treaty simply because voters have on one occasion expressed a willingness to adjust it would be grotesque. So far Switzerland’s voters have expressed their desire to have something that is neither the Agreement’s status quo nor its cancellation. After all, they have backed that very same treaty on three prior occasions. Probably it’s fair enough to assume that the voters didn’t ponder the crucial question at all and thus left it undecided. It’s a gap.

Let’s object to that interpretation one more time: Didn’t the voters agree on clear-cut measures (quotas, maximum numbers, preferential treatment of Swiss nationals, etc.) that necessarily run counter the Free Movement Agreement? Shouldn’t the endorsement of such measures at least signify that the voters agreed to provoke the cancellation of the treaty by the EU?

That’s the best question so far and yet again, the answer is negative. Provoking the cancellation or withdrawing from the treaty by one’s own initiative amounts to the same. The voters did not give a mandate to cancel or jeopardize a treaty which they have backed repeatedly. They have a reasonable and legitimate expectation that the treaty as a whole (and all the connected bilateral agreements) will persist. That expectation has even been fuelled by the campaign of the supporters who argued that the bilateral agreements weren’t at any risk and that the initiative simply aimed at one treaty’s renegotiation.

We must conclude that while the voters have endorsed measures that might conflict with the treaty they didn’t aim to agree to bring that treaty down with those measures. The critical provisions of the adopted initiative must therefore be implemented with extraordinary prudence. Can the legislator nevertheless at least partly live up to the desires of the adopted initiative? That too is an open question. Fortunately the wording of the initiative allows for some flexibility. It is not wrong to use it in a creative way.

IV. Conclusion

The recent vote isn’t as apocalyptical as it appeared to be at first sight.

Switzerland did not decide to withdraw from any bilateral agreement it has with the EU. Its voters didn’t even express such a desire implicitly. A serious attempt to renegotiate the Free Movement Agreement is all that has been decided about, but there’s no subsidiary obligation to cancel the treaty in case the negotiations fail. Conversely, there’s an obligation not to provoke the EU’s cancellation by issuing aggressive legislation. The Swiss voters’ decision to withdraw from this or any other major treaty should only be assumed if expressed explicitly.

It is my hope that the presented understanding of the democratic process will help resist the temptation to throw one of the babies out with the bathwater: In spite of all criticism, direct democracy as well as the Free Trade Agreement are both worth sticking to.

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