(first published on the Blog of the International Journal of Constitutional Law and ConstitutionMaking.org)
On 28 February 2016, Swiss citizens will go to polls again, this time to exercise their direct democratic rights on a wide range of issues, including taxation, prohibition of speculation on commodities, whether or not to have a second tunnel to the Gotthard and finally, on the expulsion of foreigners (the “Implementation Initiative” or “Durchsetzungsinitiative”). The latter is clearly the most controversial item, not only because of its xenophobic character but also for its implications for the Swiss polity as a whole. This post will deal with the background and the main challenges raised by this popular initiative.
The Expulsion Initiative
The “Implementation Initiative” has its origins in the “Expulsion Initiative” which as the title states, was aimed at the automatic expulsion of “criminal” foreigners. This popular initiative was accepted in November 2010, and required automatic expulsion of foreigners for certain crimes as well as misuse of social security benefits. The Expulsion Initiative was opposed by civil society groups for its harsh treatment of foreigners and by the Federal Council (the Executive), which found it to be in violation of many provisions of the European Convention on Human Rights (ECHR).
The Swiss Federal Supreme Court in a landmark decision of 2012 refused to apply the constitutional amendment without the corresponding implementation legislation by Parliament, thus holding that the provision was not directly applicable. The Court also cautioned that in enacting the legislation, Parliament must be attentive to the ECHR and Swiss constitutional law; thus the principle of proportionality would have to be applied in individual cases.
Subsequently, the implementation provisions were passed into law (as part of the Criminal Code) by Parliament, within the stipulated time-frame. However, these provisions included, after extensive discussions, an exception – the so-called “hardship clause” which would require courts to evaluate whether expelling the person would be disproportionate.
Even while the discussions on the implementation of the “Expulsion Initiative” were underway in Parliament, the right-wing Swiss Peoples Party (SVP) was already launching the “Implementation Initiative” to ensure that the “Expulsion Initiative” would be implemented as the initiators of the initiative originally intended. In other words, they aimed to ensure that discussions in parliament would not “water down” the tough language of the initiative. Rather than work within the folds of the Federal Council and parliament, the SVP chose to follow a populist mode of politics, which is unusual in light of Switzerland’s historical consensus democracy.
Swiss Society: From a multi-linguistic to a multicultural, multi-ethnic society?
Switzerland, formed in its modern variation in 1848, is a country with four national languages, several dialects, two main denominations (Christian Catholic and Protestant) and an increasingly immigrant society. Over 20% of the Swiss population consists of foreign nationals. Due to restrictive naturalisation practices, many children born in Switzerland of foreign parents do not hold Swiss citizenship. Swiss society has adapted to migration due to economic necessity (migration after WWII of Italians), political necessity (providing refuge to people from communist Eastern Europe) and humanitarian considerations (refugees from former Yugoslavia, Tamils from Sri Lanka). Integration of foreigners is seen as an important task and a major challenge and it can be said that Switzerland has been quite successful in this respect, evidenced by low unemployment rates and lack of ghettoes. Yet, time and again, the spectre of the foreigner as a threat has been used by the SVP in several campaigns in recent years, from banning minarets, to opposing easier naturalisation for second-generation immigrants, and to limiting immigration.
Main challenges raised by the “Implementation Initiative”
Given the low barriers to constitutional amendments by popular initiative (the only limits are violation of jus cogens norms), the “Implementation Initiative” was waived through by parliament, despite its disturbing content. The initiative not only expands the catalogue of crimes which its predecessor listed would be subject to automatic expulsion, it also creates new crimes with tougher penalties, which are expressly directly applicable and thus will have no need for subsequent incorporation into a legislation. The three main challenges raised by the initiative are that it: 1. Limits judicial review; 2. Conflicts with human and fundamental rights; 3. Erodes the separation of powers
- Limits scope of judicial review: As pointed out by a large group of Swiss law professors in an open appeal to the public, the aim of the initiative is to remove judicial discretion in this area of migration law. Specifically, the judges will be prevented from reviewing proportionality to assess whether the severity of the crime, the concerned person, his or her personal circumstances and even the punishment handed down warrants the expulsion. Automatic expulsion thus means doing away with the proportionality principle, a fundamental pillar of Swiss constitutional law.
- Conflicts with human and fundamental rights: The initiative stands in conflict with international obligations (the ECHR and Treaty on Free Movement of Persons with the European Union). It also conflicts with constitutionally guaranteed fundamental rights, which all levels of the state are bound by. Removing judicial review would mean removing the power of courts to apply fundamental rights.
- Erodes the separation of powers: As with all democratic orders, Switzerland has three separate branches of government, the legislative, executive and the judiciary. The people as constitution-makers hover above all three, but once an initiative has been introduced into the constitution and where this requires implementation into law, it is the task of the parliament to do so. The people retain the right to launch a referendum against any new implementing laws. However, the SVP began with the premise that the implementing law would contradict the original intent of the people, and thus did not even wait until the law was passed to initiate a referendum. Further, by removing judicial discretion, the initiative erodes the separation of powers by intruding into the judicial function.
If one were to go by opinion polls, the initiative seems to enjoy high popularity, yet more and more people are coming out and voicing their opinions against it. These include public prosecutors, who from an economic perspective have pointed out that the costs of compliance would be so high that it would be impossible to implement and would only increase legal costs at all levels.
More importantly, the initiative as it stands not only emphasises the differences between citizens and non-citizens, but also reinforces prejudices against the latter. For several reasons, this initiative stands for the battle between a liberal, human-rights oriented version of democracy and the rule of law and one based on democracy as a tyranny of the majority. The results will be ever so important in the current environment in Europe, where the refugee crisis seems to be bringing out the best and the worst in all societies.
 Many thanks to Prof. Eva Maria Belser, Prof. Anne van Aaken, Nina Massüger and Yvonne Heiter for helpful comments. All errors remain my own.
 BGE 139 I 16
 Art 121, para. 3 ff. Swiss Federal Constitution (Amendment of 28 November 2010).
 For example, a catch-all term of “social security misuse” applicable to all without regard to nationality, which includes undefined and open terms and creates a new “crime” in the constitutional text.