The case of Switzerland: A uniquely malleable constitution

At the risk of applying simplistic labels that require subsequent nuancing,^[76] Switzerland follows a moderate form of monism^[77] and has an integrated Supreme Court (the Federal Supreme Court).

2.1 The institution of the popular initiative

On a purely positivist account, the procedure applicable to constitutional revision is a qualified one in Switzerland (as it is in Germany and Austria). Unlike what applies to the amendment of simple federal statutes, constitutional amendments require a compulsory referendum and a double majority - both of the voting electorate and of the 26 Cantons (States), which compose the Confederation (Art. 140(I)(a) FC).^[79] Therefore, if the absence of a qualified legislative procedure were decisive to consider a constitution as malleable as opposed to rigid, the Swiss constitution would not qualify. The reason why it is among the most frequently amended constitutions in the world, and why it contains relatively detailed norms with a comparatively high risk of being in conflict with international law, is a spe­cific tool of its direct democracy, the ‘popular initiative’. It allows citizens to gather 100,000 signatures for the purpose of a specific amendment (i.e.

One reason for this acceleration in amendments is that the mark of 100,000 sig­natures becomes ever easier to achieve with a growing citizenry^[84] and digital means to mobilise citizens. More important, however, is the fact that popular initiatives have evolved: from an instrument for fringe groups with allegedly popular political proposals but a lack of established support in the federal parliament to a campaign­ing and agenda-setting tool^[85] for well-established political parties, most notably the right-wing populist ‘People’s Party’, currently the strongest party in the country.

Some of these initiatives represented progressive causes. One of the successful popular initiatives made Switzerland a member of the UN in 2002. However, given their structure as extra-parliamentary means, popular initiatives tend to be populist,^[86] hostile towards established political processes, towards legal principles that mitigate effects of the dominance of the majority, like the principle of proportionality, and hostile towards the separation of powers, especially to the mitigating power of courts.^[87] Finally, yet importantly, they tend to be hostile to and in contradiction with international treaty law, most typically international human rights protection or the set of treaties that govern the complex relationship of the country with the EU.^[88] Out of the eleven popular initiatives adopted since 1999, at least six create tensions in their conformity with international human rights law or the bilateral treaties between Switzerland and the EU.^[89] One further popular initiative proved difficult to reconcile with other constitutional norms.^[90] There is only one substantive limit to the content of partial amendments to the constitution.

Activism as defence 49 confused with ‘binding’, in this context. What is meant by the term (although much about it remains unclear) is the short list of generally acknowledged norms of ius cogens, extended by a set of norms that are seen as regional ius cogens (such as the prohibition of the death penalty) and ‘ius cogens in the making’. To the degree that popular initiatives violate mandatory provisions of international law, they have to be declared inadmissible (Art. 139 III FC). This implies that mandatory provisions of international law enjoy supremacy over constitutional norms.^[91] [92] It also implies, however, that norms of interna­tional law other than mandatory provisions of international law do not rank higher than the constitution.^[93]

2.2 The Federal Court ratcheting-up the rank of treaties relative to the constitution

It is in this fraught institutional context that in 2012 the Federal Court had to decide on the expulsion of a one-time drug dealer, a citizen of Macedonia, who grew up in Switzerland and had not committed any crimes since his initial sentence. It was clear that on the one hand, his expulsion would have infringed his right to family life and private life under Art. 8 ECHR. On the other hand, a recent amendment to the constitution - the result of a recent popular initiative^[94] - demanded his automatic expulsion (Art 121. (III) FC). There was no way of mitigating the conflict through consistent interpretation of the constitutional norm. Although there would have been procedural ways for the Court to dodge the question and to invalidate the expulsion of the culprit and thereby to prevent a breach of international treaty law, the Court had to take a bold move. In an obiter dictum (a procedural way of judicial activism), it stated that even more recent constitutional amendments must give way to the ECHR.^[95]

Three years later, in a case that concerned a conflict between another popular initiative (that demanded that all immigration to Switzerland ought to be limited via immigration caps, Art.

again in an obiter dictum³''’ - on this specific treaty.^[97] [98] An earlier decision already stated that the fundamental liberties as guaranteed in the treaties with the EU override more recently enacted, conflicting statutory law.^[99]

This case law is important in two respects: first, because it departs from the ECHR-exceptionalism of earlier cases.^[100] The ECHR enjoys a special status in relation to the domestic law of many of its States parties,^[101] [102] including Austria and Germany. This is so because of its Court, its effective enforcement procedure and because the Convention requires ‘the High Contracting Parties [...] to abide by the final judgment of the Court in any case to which they are parties’ (Art. 46 I ECHR). This norm applies regardless of the legal tradition of a spe­cific member country. The ‘domestication of the supremacy of international law’^[103] is strongly predetermined by this rule. Secondly, this case law underlines the close relationship of popular initiatives and the pressure to assure the primacy of treaties over the constitution. Unlike the ECHR, which was ratified before a referendum for international treaties existed in Switzerland, the treaties linking the country to the European Union (dating from 1999) were affirmed in a (simple majority) popular referendum. This vested the Court with a new argu­ment: the democratic legitimacy of the treaty in question.^[104] This argument is, however, limited to more recent and more substantial treaties that already fell under the relatively young referenda for treaties.^[105] It therefore entails the risk of a subsequent jurisprudence that downgrades treaties that were ratified in accor­dance with the law applicable at the time, but not subject to a referendum.

Activism as defence 51 international law and its rank within domestic law.^[106] [107] Such treaties are, therefore, another example of the growing need of the ‘domestication of the supremacy of international law’.

As things stand currently in Switzerland, its apex court grants an exceptionally elevated rank to treaty law (at least to those treaties with which its constitution so far conflicted): treaties (at least some treaties) trump constitutional legal norms that were enacted after its ratification. That said, it is important to keep in mind that the rele­vant passages in both decisions are found in obiter dicta, and that not just one chamber, but the Court as a whole, would have to decide if this question could not be addressed in an obiter dicta but would be the one that decides the outcome of a case.^[108] The federal administration, in any case, is of the view that the Federal Supreme Court has not settled the issue definitively so far.^[109] Subsequent decisions by different chambers of the Federal Supreme Court went to great lengths to dodge the question of the relationship between the Treaty on the Free Movement of Persons with the EU and domestic law (in this case federal statutory law)^[110] in the context of the expulsion of EU citizens who committed criminal offences in Switzerland.^[111] The court’s activism, therefore, is but a provisional, tentative and defensive one, met with fierce (if so far unsuccessful) resistance by the defenders of a supremacy of the people over the courts and over international treaty law.

2.3 The change of position of the government and the administration

One of the arguments of those proponents of a strong popular sovereignty is that this case law, as it stands now, is at odds with previously stated opinions of the govern­ment, which favours a primacy of constitutional norms over treaties.^[112] When a popular initiative that clearly violated an international treaty was successful, the government was for a long time willing to interpret such an event as the popular demand, and as a constitutional mandate to withdraw from said treaties as an ultima ratio^[113] However,

this position was relatively new itself. In a report published in 1989, the two relevant bodies of the administration concluded that international law should be granted pri­macy over domestic law.^[114] That the administration then changed its opinion is all the more astonishing in the light of the initiative to ban minarets, an amendment that most probably conflicts with the ECHR^[115] and would, according to this doctrine, entail an obligation to withdraw from the Convention. The government was therefore quick to point out that it seems impossible, either for legal or poli­tical reasons, to withdraw from some treaties, among them the ECHR, the ICCPR and the WTO agreement.^[116] On top of that, it considered the possibi­lity of a new hierarchy between the constitutional law and treaties, along the line of either their democratic legitimacy or their political importance.^[117]

This relatively young change of view by the government has since been reversed anew. In statements that occurred after the successful initiative ‘against mass immigration’ (Art. 121a FC, voted on in 2014), the federal government has avoided repeating the view that a successful popular initiative in obvious contra­diction with a treaty must be interpreted as an obligation to withdraw from said treaty. The initiative would, after the theory formerly held by government, force Switzerland to withdraw from the most substantial sets of treaties that links it to the EU. In those statements, the withdrawal obligation is no longer mentioned, as it was in previous reports on the matter.^[118] In a later report on the ultimately unsuccessful popular initiative ‘against foreign judges’ (on which citizens voted in 2018), the government went a step further: it rejected - this time explicitly - the idea that a constitutional amendment in contradiction with international treaties involves a mandate for the government to withdraw from said treaty. This change

Activism as defence 53 of position is justified with reference to recent manoeuvres, both by the Federal Parliament and the Federal Supreme Court to avoid conflicts between more recent constitutional norms and treaty law.^[119] With that clarification, the government cir­cled back to a position it held at the end of the 1980s, before the surge in treaty­threatening popular initiatives occurred. The government resisted that change of mind (with regard to law making) for a long time after the apex court of the country had taken that step (with regard to the application of law). This hesitation supports the view that court activism in this instance was an act of defence, a necessary move to avoid a conflict that the government, for a long time, was reluctant to avoid.

2.4 The role of constitutional review

There is - aside from the malleability of the constitution - a second factor at play that nudged the Federal Supreme Court towards creating for itself^[120] a competence that enhances the visibility and the rank of treaty law, namely that of the ECHR. This factor consists of the duty to apply federal statute law, even when the Court finds it in breach of the constitution (Art. 190 FC).^[121] In some cases, however, a federal statute is not only in breach of the constitution, but also of an international treaty vested with a court of its own judgments of which are predictable and binding (as in the case of the ECHR). In such cases, the Federal Supreme Court considered it futile to send a defendant to Strasbourg first, only for Switzerland to be condemned by the ECtHR. It therefore held that Art. 190 FC does not oblige it to apply federal statutory law if a statute breaches the ECHR.^[122] This contrasts with the case law concerning the more general question of the hierarchy of inter­national law and federal statutory law, the so-called Schubert Praxis. The Schubert jurisprudence granted (and still grants) the parliament the possibility to override treaties, provided that it is done consciously and by means of statutory law.^[123] With the so-called PKK judgment,^[124] the ECHR was exempted from this jurisprudence. This exception placed the Convention above statutory law long before the ques­tion of its rank relative to the constitution arose. While it does not, in itself, place the ECHR above the constitution, it nevertheless emphasises the importance of the Convention through the Courts’ activism. The Convention is instrumentalised

to widen the Court’s elbow room that the constitution severely restricts, namely the space of constitutional review.^[125]

3