A “Yes” vote in the “Enforcement Initiative” would upset the delicate balance of democracy and the rule of law - because the initiative aims to anchor the detailed rules for the deportation of foreigners in the constitution itself, denying judges the possibility to exercise the principle of proportionality in individual cases. In practice, this would weaken the protection of minorities (those foreigners living in Switzerland) and also undermine the power of judges and of parliament.
“The Enforcement Initiative forces the Swiss political system, with its strong elements of direct democracy, up against the limits of the rule of law”, says Bruno Kaufmann, member of the board of the NGO Democracy International, and himself a Swiss citizen. According to Kaufmann, “In a modern representative democracy with strong direct-democratic popular rights, there is still a need for a parliament which has the task of converting constitutional principles into legislation, and we also need a judiciary which exercises an important role in grounding those laws in legal practice. The Enforcement Initiative challenges this separation of powers and seeks to confer absolutist powers on referendum decisions”.
The SVP launched the citizens’ initiative “For the enforcement of the deportation of foreign criminals” (the “Enforcement Initiative”) in 2012, after a majority (52.9%) of Swiss voters had approved the earlier SVP “Deportation of Foreign Criminals Initiative” on 28 November 2010. That initiative committed the Swiss Parliament to implementing the new constitutional provisions (requiring an amendment to the existing laws) within a time frame of five years. But the right-wing SVP didn’t want to wait so long and launched the “Enforcement Initiative” while the parliament was still debating the implementation of the “Deportation Initiative”. The new initiative seeks to have the deportation provisions inscribed directly into the constitution. Switzerland is home to two million foreigners who could potentially be affected by the Enforcement Initiative - many of whom were born and have grown up in the country.
Other popular votes
Swiss voters will have three other issues to vote on on 28 February. The “For marriage and the family - against the penalty of marriage” initiative launched by the Christian Democrats states that marriage should not be disadvantaged by comparison with other forms of cohabitation and seeks to have the definition of marriage in the constitution restricted to partnerships between heterosexuals. The “No speculation on food” initiative launched by the Young Socialists is demanding a ban on financial speculation in Switzerland in respect of agricultural raw materials and foodstuffs. Finally, there is an issue which has been occupying the Swiss for decades - the proposed upgrading of the road transit provisions through the Gotthard, already approved by Parliament, but requiring popular approval because it would require an amendment to the Swiss national constitution. The plans have been opposed by the “Alps Initiative” NGO and by environmental groups, which collected 50,000 signatures against the parliamentary decision.
What do we mean by “the rule of law” - or by the concept of a state “based on the rule of law”? And what is the relationship between democracy and the rule of law? When is it possible to say that in a specific country with a system based on the rule of law its ‘rule-of-law’ basis is threatened? Democracy International has shed some light on these questions in a background paper. The paper also includes questions aimed at facilitating an empirical assessment of a given “rule of law” state. The paper can be downloaded here and attached to this press release.