Answers to (1) questions on Legal rulings on the Swiss referendum, and, (2) the referendum as a form of democratic government.
(A) “Legal dispute
Minaret at the mosque of the local Turkish cultural association in Wangen bei Olten, the initial motivation for the popular initiative.
The Swiss minaret controversy began in a small municipality in the northern part of Switzerland in 2005. The contention involved the Turkish cultural association in Wangen bei Olten, which applied for a construction permit to erect a 6-metre-high minaret on the roof of its Islamic community centre. The project faced opposition from surrounding residents, who had formed a group to prevent the tower’s erection. The Turkish association claimed that the building authorities improperly and arbitrarily delayed its building application. They also believed that the members of the local opposition group were motivated by religious bias. The Communal Building and Planning Commission rejected the association’s application. The applicants appealed to the Building and Justice Department, which reverted the decision and remanded. As a consequence of that decision, local residents (who were members of the group mentioned) and the commune of Wangen brought the case before the Administrative Court of the Canton of Solothurn, but failed with their claims. On appeal the Federal Supreme Court affirmed the decision of the lower court. The 6-metre (20 ft)-high minaret was eventually erected in July 2009.”
“Main article: Swiss referendum, November 2009
“The results of the November 2009 referendum by canton. Red indicates opposition to the ban of minarets, green support of the ban.
In a referendum on 29 November 2009, the amendment, which needed a double majority to pass, was approved by 57.5% (1 534 054 citizens) of the voters and by 19½ cantons out of 23. Geneva, Vaud and Neuchatel, all of which are French speaking cantons, voted against the ban (59.7%, 53.1% and 50.9% respectively). The canton of Basel-City, which has half a cantonal vote and the largest Muslim community of Switzerland, also rejected the ban by 51.6%. The voter turnout was 53.4%.
“At the discrict level, the initiative failed to find a majority in 16 districts (not including Basle-City and Geneva which are not divided into districts): canton of Vaud: Lausanne, Ouest lausannois, Lavaux-Oron, Nyon, Morges, Riviera-Pays-d’Enhaut; canton of Neuchatel: Neuchatel, Boudry, La Chaux-de-Fonds; canton of Fribourg: Sarine; canton of Jura: Delémont, Franches-Montagnes; canton of Zurich: Zurich, Meilen; canton of Berne: Berne; canton of Solothurn: Solothurn.
“The cities of Zurich and Berne along with Geneva and Basel also showed a slight majority opposed to the ban, uniting the four largest Swiss cities in rejecting the initiative. The canton of Zurich as a whole, however, voted 52% yes. The highest percentage of votes in favour of the ban were counted in Appenzell Innerrhoden (71%) followed by Glarus (69%), Ticino (68%) and Thurgau (68%).
The Swiss Green Party have declared that in their opinion, the ban introduces a contradiction into the Swiss constitution, which also contains a paragraph which guarantees freedom of religion and they have announced their intention to appeal to the European Court on Human Rights on the matter.”
(C) “Implementation and the Langenthal minaret
“The ban on new minarets may be put to the test in the case of a pending project of building a minaret for a mosque in Langenthal, canton of Berne. The Islamic community of Langenthal has announced their intention of taking their case to the Federal Supreme Court of Switzerland and if necessary further to the European Court of Human Rights in Strasbourg. The attorney of the community has also announced doubts on whether the ban can be taken to affect the Langenthal project because the application for planning permission had been handed to the authorities in 2006, it may be argued that the ban cannot be taken to apply to this project ex post facto. On the other hand, Bernese officials and Rainer Schweizer, law professor at St. Gallen University, have expressed their opinion that the ban renders the Langenthal project obsolete.
“Whether the Langenthal mosque is affected may depend on the details of the eventual implementation. According to Alexander Ruch, professor of building law at ETH Zurich, there is so far no official definition of minarets, leaving open the handling of hypothetical cases such as the chimney of a factory building that is converted into a mosque. In the case of Langenthal it has even been argued that the planned structure is a minaret-like tower rather than a minaret. In fact, calls to prayer have been a frequent argument against minarets, and the planned tower in Langenthal cannot be used for that purpose. In the case of the Islamic center in Frauenfeld, canton of Thurgau, there is a ventilation shaft that was adorned with a sheet metal cone topped with a crescent moon. The Frauenfeld city coucil has declined treating the structure as a “minaret”, saying that it had been officially declared a ventilation shaft, and that the added crescent moon had not been giving cause for comment during the six years since its installation.”
• The issues are complex and the legal intervention is as complex as the issues are. It appears that (A) Local courts have upheld results, locally, that (B) Federal Courts cannot rule either way and the results of the referendum, mutatis mutandis, under law, become law. Finally under (C) the Swiss Constitution allows for an appeal of a referendum’s results in international law to the European Court of Human Rights in Strasbourg - this may follow if a certain number of signatures can be accumulated by the Islamic supporters of Minarets.
• Referring to the growth of Nazi power in Germany when defining a referendum does not negate the process as an integral part of a democracy involving all citizens in the voting process: Wikipedia -
“A referendum (also known as a plebiscite or a ballot question) is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of direct democracy. The measure put to a vote is known in the U.S. as a ballot proposition or measure.”
As Defined in Switzerland:
“In Switzerland, there are binding referendums at federal, cantonal and municipal level. They are a central feature of Swiss political life. It is not the government’s choice whether or when a referendum is held, but it is a legal procedure regulated by the Swiss constitution. There are two types of referendums:
“Facultative referendum: Any federal law, certain other federal resolutions, and international treaties that are either perpetual and irredeemable, joinings of an international organization, or that change Swiss law may be subject to a facultative referendum if at least 50,000 people or eight cantons have petitioned to do so within 100 days. In cantons and municipalities, the required number of people is smaller, and there may be additional causes for a facultative referendum, e.g., expenditures that exceed a certain amount of money. The facultative referendum is the most usual type of referendum, and it is mostly carried out by political parties or by interest groups.
“Obligatory referendum: There must be a referendum on any amendments to the constitution and on any joining of a multinational community or organization for collective security. In many municipalities, expenditures that exceed a certain amount of money also are subject to the obligatory referendum. Constitutional amendments are either proposed by the parliament or the cantons, or they may be proposed by citizens’ initiatives, which—on the federal level—need to collect 100,000 valid signatures within 18 months, and must not contradict international laws or treaties. Often, parliament elaborates a counter-proposal to an initiative, leading to a multiple-choice referendum. Very few such initiatives pass the vote, but more often, the parliamentary counter proposal is approved.
The possibility of facultative referendums forces the parliament to search for a compromise between the major interest groups. In many cases, the mere threat of a facultative referendum or of an initiative is enough to make the parliament adjust a law.
The referendums are said, by their adversaries, to slow politics down. On the other hand empirical scientists, e.g. Bruno S. Frey among many, show that this and other instruments of citizens’ participation, direct democracy, contribute to stability and happiness.
The votes on referendums are always held on a Sunday, typically three or four times a year, and in most cases, the votes concern several referendums at the same time, often at different political levels (federal, cantonal, municipal). Elections are as well often combined with referendums. The percentage of voters is around 40 to 50 percent unless there is an election. The decisions made in referendums tend to be conservative. Citizens’ initiatives are usually not passed. The federal rule and referendums have been used in Switzerland since 1848.”
“Eleanor Roosevelt et al. wrote after the Nazi- Holocaust, WWII a Human Rights Declaration, passed into Law 10.12.1948, where Direct Democracy (Referendum) is part of. See: Article 21: “1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.”
“Although some advocates of direct democracy would have the referendum become the dominant institution of government, in practice and in principle, in almost all cases, the referendum exists solely as a complement to the system of representative democracy, in which most major decisions are made by an elected legislature. An often cited exception is the Swiss canton of Glarus, in which meetings are held on the village lawn to decide on matters of public concern. In most jurisdictions that practice them, referendums are relatively rare occurrences and are restricted to important issues.”