Seven ways to circumvent the will of the Swiss people

Curtailing immigration, protecting the Alps, paid maternity leave: in Switzerland, successful referendums may lose out during the implementation stage. Government, parliament, courts and official agencies often find creative ways of getting around the will of the people, when it does not suit them.

This content was published on September 28, 2018 - 11:00 summarises the main tricks elected politicians resort to in order to fend off undesired, problem-creating and contradictory decisions by the voters.

Trick 1: Water it down

On February 9, 2014 the voters said yes to the “limiting mass immigration initiativeExternal link", which demanded (among other things), that Switzerland limit the number of residence permits to foreigners from the EU area each year by means of caps and quotas.

That created a problem for the parliament. On the one hand, the initiative had to be implemented by February 2017, because the wording of the initiative specified that period of time. On the other hand the introduction of caps and quotas went against the agreement on free movement of people with the European Union. Lawmakers did not want to cancel this agreement with the EU – the initiative didn’t require it either, just renegotiation. However, the EU was not amenable to budging on the issue.

The solution to this dilemma was: instead of imposing quotas on immigration, as the initiative intended, parliament required all vacant jobs to be reported to the government job-finding agencies for the unemployed, and then regarded the initiative as implemented.

Immigration quotas and requirements to report vacant jobs have little to do with each other, as Swiss media wrily noted. With the strategy "water down till unrecognisable", parliament acts as if it had implemented a troublesome initiative without really implementing it at all.

Trick 2: Wait it out

If a popular vote is disliked, politicians can just sit on their hands.That happened with paid maternity leave: since 1945 (!) there had been a constitutional amendment, approved by the country’s (male) voters, to bring in a maternity insurance scheme. Only in 2005 was maternity leave introduced, when the people voted for a change to the legislation on income-replacement benefits. Because of this experience, the recent paternity-leave initiative came with a deadline for implementation.

Trick 3: Act up

In 2004, the people voted for the idea of indefinite detention for very dangerous violent and sexual offenders who are not likely to be cured by therapy ("indefinite detention initiativeExternal link"). Parliament had trouble with implementing this, due to concerns about human rights.

The law committee of the House of Representatives called for there to be no decision to implement at all. Parliament did not actually follow this tactic of refusal. Legislation on the matter came into force in 2008.

The initiative was finally sabotaged by the courts, especially the Federal Supreme Court, which has set aside all determinations by lower courts in the matter of preventive detention. The nation’s highest judges decided in 2013 that indefinite detention would only apply to someone who was unlikely to be responsive to therapy for their whole life. Since court-appointed psychiatrists find themselves unable to predict if someone will be unresponsive to treatment for the rest of their life, preventive detention remains a dead letter. So far, only a single case of preventive detention has been upheld – because the offender had accepted this sentence from the court that tried him.

Trick 4: Repackage

In 2008, the nation’s voters turned down a people’s initiative to legalise cannabis. Yet consumption of the drug has since become possible in various ways: since 2013 possession of less than 10g of cannabis is punished onlyExternal link with a summary fine, as decided by Parliament. That means that if the user pays the CHF 100 fine, they are neither charged nor tried. In 2017, the city courts in Zurich and Winterthur and the Zurich cantonal police decided, on the basis of a Federal Court ruling, that possession of less than 10g would not be penalised at all. So anyone buying and using small amounts has nothing further to worry about.

Since  2011, sale and consumption of hemp with less than 1% THC has been legal. There is now a boom in sales of "CBD cannabis" in shops and kiosks. Projects are also under consideration to distribute cannabis in a controlled way to addicts, or as part of scientific studies. Distribution for medicinal purposes is also allowed, say as a pain killer for cancer patients.

Trick 5: Criticise

The initiative is scarcely put forward before there is criticism of the effects and a different solution is proposed. That is what happened in the case of the people’s initiative for "protection from street racers". For gross violations of speed limits on public thoroughfares it proposed a minimum sentence of a year in jail along with a long period of ineligibility to hold a licence and confiscation of the vehicle. When a new lawExternal link implemented this proposal in 2013, the campaigners withdrew their initiative.

Only five years after the introduction of the draconian law, however, it is set to be softened. Parliament wants to delete the specified minimum jail term, as they find it too severe and it allows judges no discretion in sentencing.

Trick 6: Keep maneuvering

In 1994 the people voted for the "Alps protection initiative", which required truck traffic across the Alps to be transferred to rail within ten years. Since in the view of government the initiative conflicted with international agreements, it tried to meet the goals of the initiative with a long list of measures which would involve no trouble with the EU. The initiative has never been fully implemented to this day.

Trick 7: Look the other way

Sometimes government just looks the other way. One example is in canton Bern, where lakes must have a shoreline trail accessible to the public since an initiative to that effect was adopted in 1982. Many local goverments failed to act for 30 years, however, until the canton forced them to do so. Since the canton lacks the money to enforce the measure, the Bern government says it may take another 30 or 40 years till there is a complete network of lake and river shoreline paths in Bern.

'The people are not the boss’

In Switzerland, the nation’s voters can amend the constitution with a people’s initiative.

Then parliament has to act: it must create legislation or a new article in the constitution to implement the initiative.

The lawmakers have some leeway here. The two chambers may decide to implement the initiative in a softer form than was proposed in the original wording of the initiative.

Politicians still have to be careful. If parliament gets too creative with the leeway it has, campaigners will accuse it of "watering down" or "ignoring the people’s will".

The leeway enjoyed by parliament is intentional and is supposed to maintain the balance between the political forces. "The people are not the boss, but one player among several", notes Markus Müller, professor of constitutional law at the University of Bern.

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