Anne Peters is Professor of Public International Law at the University of Basel, a position she has held since 2001. In the academic year 2004/05 she was Dean of the Faculty of Law. Prior to taking up the tenured post she was Assistant Professor at the Walther-Schücking-Institute of Public International Law at the Christian Albrechts University Kiel, where she obtained the Habilitation-qualification on the basis of her Habilitation-Thesis “Elemente einer Theorie der Verfassung Europas” (Elements of a Theory of the Constitution of Europe).
The constitutional context of the popular vote of November 29
On 29 November 2009, the Swiss people voted in a popular referendum in favour of an absolute prohibition of the construction of minarets on Swiss territory. The vote was 57.8 % in favour, and 23 of the 26 cantons were in favour of the prohibition. The turnout was 53.4 %, which is relatively high for Switzerland.
Currently, four minarets exist in this country, and one application for a construction permit is pending. The legal consequences for this pending application are not entirely obvious, whereas the consequences for future buildings of minarets are clear: Due to the popular decision, a new provision will be inserted into the Swiss Federal Constitution (Bundesverfassung/Constitution Fédérale) which will enter into force immediately. The new Article 72(3) will be: “The construction of minarets is prohibited.”
The federal referendum was triggered by a popular initiative launched in April 2007 by a group of 16 people, 14 of whom were members of the “Schweizerische Volkspartei” (Swiss Popular Party), whose political programme is partly directed against migrants.
Under the Swiss Federal Constitution, a federation-wide popular initiative can be launched by gathering 100’000 signatures of Swiss citizens (a population of roughly 7 million) within 18 months (Art. 139). Reaching this threshold was no problem in the case of the anti-minaret- initiative. The sufficient number of signatures was collected in July 2008.
Once the threshold had been passed, and the formal correctness of the proceeding had been verified by a governmental office, the material validity of the initiative was scrutinized before the text of the initiative itself was put to vote. The Swiss Federal Constitution prohibits popular initiatives which “infringe preemptory norms of international law” (Article 139(2)). It is incumbent on the federal parliament to examine whether this is the case or not (Article 173 (1) lit f.)). The reason for vesting the power of scrutiny in parliament and not in the federal court is respect for popular sovereignty. According to the framers of the constitution, the verdict of inadmissibility of an initiative, a verdict which obviously curtails popular sovereignty, should only be pronounced by that federal body which enjoys the most direct democratic legitimacy. Parliament is composed of the directly elected representatives of the people, whereas the Swiss federal court has only an indirect democratic basis (the judges being elected by the parliament).
In the case of the anti-minaret-initiative, the parliamentary decision was easy. The initiative affects the freedom of religion as guaranteed under the Swiss constitution and under Article 9 of the European Convention of Human rights (ECHR), Art. 18 of the Covenant on Civil and Political rights (CCPR), and the international legal prohibitions of discrimination (Art. 14 ECHR and 2(1) CCPR). However, it is quite obvious that these fundamental rights do not pertain to the body of ius cogens, as defined in international law, accepted by Swiss practice, because a large number of states do not accept religious freedom, and many have submitted reservations relative to religious freedom to the universal human rights instruments. In the Parliamentary Resolution on the admissibility of the popular initiative, the Swiss Federal Parliament highlighted that the adoption of the initiative would entail a violation of international law. However, Parliament did not have the power to declare the initiative inadmissible and void, because the wording of the constitutional clause on the inadmissibility of initiatives is clearly limited to ius cogens.
Therefore, the initiative had to be put to a popular vote, and the government fixed the date of 29 November 2009. During the campaign, almost all political parties and the government recommended the people to vote against this initiative. The clear supportive result of 29 November was a big political surprise, because previous opinion polls had predicted only between 30 and 40 percent of approval, which would have not sufficed for an endorsement of the proposal. The clear outcome manifests a widespread diffuse fear of islamisation. The “victorious” Swiss popular party immediately announced to launch a second initiative targeted at a prohibition of burcas in the public sphere.
Domestic remedies against the prohibition
It is foreseeable that individuals will seek to challenge the new constitutional prohibition before the domestic judiciary. Clearly those persons will have ius standi who apply for a construction permit for minarets. Such an application will – due to the novel constitutional prohibition – necessarily be denied by the competent local authorities.
After exhausting the domestic remedies, such an applicant will be entitled to raise a constitutional complaint before the federal court with the claim that his or her freedom of religion has been violated by the refusal. The federal court (Bundesgericht) will not have any margin of discretion in deciding such a complaint, because the new provision prohibiting the construction of minarets has constitutional status. It therefore constitutes a constitutionally entrenched restriction of the constitutional rights guaranteeing the free exercise of religion (Article 15 of the Swiss Federal Constitution) and of the constitutional prohibition of discrimination on the ground of religion (Art 8(2) Swiss Federal Constitution). So far, the notion of “unconstitutional constitutional law” has not been accepted in Swiss constitutional doctrine. The prohibition of minarets has been adopted by the sovereign with the clear intention and in full cognizance of the curtailment of fundamental freedoms going with it. Therefore there seems to be no room for balancing in order to solve the conflict between the two opposing constitutional precepts.
A communication to the UN Human Rights Committee will not be possible, because Switzerland has not ratified the Optional Protocol No. 1 to the CCPR.
Individual application to the European Court of Human Rights
After a dismissal of the complaint by the Swiss Federal Court, the defeated party will be able to apply to the Strasbourg-based European Court of Human rights (ECHR) within the time-limit six months after the final domestic judgment (Articles 34-35 ECHR).
It is to be expected that the Strasbourg Court will declare the prohibition of minarets as a violation of Article 9 ECHR and/or as violative of Article 9 taken in conjunction with Article 14 ECHR. The scope of the right to exercise one’s religion has usually been construed broadly by the Strasbourg court. Although not every act motivated or inspired by a religion or belief is protected, not only those activities or instruments that are strictly necessary for the exercise of belief enjoy protection. For instance, a state making it impossible for eating meat from animals slaughtered according to the religious prescriptions of Jewish orthodox communities interferes with the freedom of those communities to exercise their religion. In various cases, governmental prohibitions to construct or to rent buildings for religious use, licensing schemes and the like have been qualified as an interference with the fundamental right to freedom of religion. It is therefore immaterial whether a Muslim cult can also be practiced also without minarets, as long as Muslims themselves consider the minaret to form part of the expression of their religious beliefs.
The right to freedom of religion is of course not absolute. The interference lying in the prohibition of minarets could be justified if it pursued one of the legitimate aims mentioned in Article 9(2) ECHR and if it were proportional, i.e. “necessary in a democratic society”, as Article 9(2) puts it. The proponents of the popular initiative have argued that the prohibition of minarets serves the maintenance of public order. This objective, together with the public interest in planning and in managing territory, has frequently been accepted by the Strasbourg Court in cases concerning the restriction of religious activities. But the strict prohibition of minarets, allowing for no exception, is not needed to manage territory and to protect the ordre public, because the existing Swiss laws rules on planning and construction contain fine-tailored instruments which allow the prohibition of minarets at places where they might disturb the neighbourhood. The already existing rules could also be applied in order to limit the height of minarets, or to prohibit the employment of a muecin. Because sufficient legal instruments are in place to protect the public order, the absolute prohibition in the constitution is overbroad and thus not “necessary” in terms of Article 9(2) ECHR.
Differently from Muslim headscarves worn by teachers and the installation of Christian crucifixes in public schools, the religious message embodied by a minaret is not sent out to (minor) students who are necessarily influenced by that message. Contrary to students who perceive the school teacher as an authority, and who are also necessarily confronted with symbols displayed class room, the general non-Muslim population does not have any right derived from their (“negative”) freedom of belief not to see minarets in town.
These crucial features (absence of an educational setting and targeting of a minority) distinguish the Swiss case from previous ones. The European Convention does allow member states to prohibit headscarves in schools and universities (and in Turkey even to prohibit headscarves worn by students), and inversely does not allow Italy to display crucifixes (a symbol of the religious belief of the majority) in public schools.
Moreover, the freedom of religion as guaranteed under the ECHR contains a strong component of religious neutrality, impartiality, and tolerance. The Strasbourg Court has frequently emphasized the state’s role as the neutral and impartial organizer of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. It also considers that the state’s duty of neutrality and impartiality is incompatible with any power on the state’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed. The prohibition of minarets is squarely directed only against the Islam. The fact that the Muslim religion is a “newcomer” in Swiss society does not allow the state to treat it differently from the more traditional religions.
Finally, Strasbourg has more and more insisted on “true religious pluralism, which is vital to the survival of a democratic society”, as a basic principle in disputes concerning the freedom of religion. The state must, according to the Strasbourg case law, ensure mutual tolerance between opposing groups. Accordingly, the role of the authorities in circumstances where various religious groups meet is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other. A balance must be achieved which ensures the fair and proper treatment of persons pertaining to religious minorities and avoids any abuse of a dominant position.
The Strasbourg Court will also have to examine whether the prohibition of minarets, which singles out one particular religion, is a violation of Article 9 taken in conjunction with Art. 14 ECHR. Differential treatment on religions grounds is prohibited unless the state provides an objective and reasonable justification. The Court has applied strict scrutiny in these cases and asks for particularly weighty reasons to justify differential treatment of persons or groups based on their religious belief. Such weighty reasons for an absolute prohibition of minarets in Switzerland seem to be lacking.
The ECHR has granted the member states a margin of appreciation in cases concerning religion, and also in the field of planning and management of territory. One might additionally ask whether the margin of appreciation should be especially broad because the prohibition is a clear and unequivocal expression of a people’s decision, taken in a popular referendum. But direct democracy is not stronger or more valuable than indirect democracy, and therefore a decision taken by a people directly should not be more readily allowed to violate fundamental rights than a rule adopted by parliament. To conclude, the Swiss margin of appreciation seems to be overstepped in the case of the strict prohibition of minarets.
In consequence of a Strasbourg judgment, Switzerland will have to bring its legal system in conformity with the Convention (Article 46 ECHR). The state will therefore have to re-revise its constitution in order to get rid or mitigate of the prohibition of minarets. The Committee of Ministers of the Council of Europe will supervise this process.
The political option of denouncing the ECHR (which is possible under Art. 58 ECHR) seems illusionary. The alternative strategy just to refuse implementation of a Strasburg judgment and to resist the pressure excised by the European Organization and by a vigilant European public seems foreclosed. Switzerland holds just now the presidency of the Committee of Ministers in the Council of Europe and has always manifested strong support for the Council of Europe and its regime, notably because Switzerland is not a member of the European Union.
The constitutional debate on international law as a legal limit on popular initiatives
This popular vote will refuel the Swiss constitutional law debate on the admissibility of popular initiatives which entail the adoption of constitutional provisions violating international law. Scho ars and politicians have been debating the extension of the constitutional limitations on popular initiatives. It has for instance been suggested to qualify international human rights norms as “de facto peremptory norms”, because the implementation of Swiss law violating international human rights guarantees would be de facto impossible. But proposals to read the constitutional limitation clause of Article 139(2) of the Swiss Federal Constitution in such an extensive fashion hurt themselves at the clear wording of that provision and also at the clear intent of the constitutional convention of 1999 to place only very lose limits on popular initiatives.
Therefore the doctrinally sounder suggestion seems to be to enshrine into the Swiss Federal Constitution a prohibition of initiatives which clearly violate human rights. However, such a prohibition would require amendment of the Swiss Constitution, and any such amendment is again subject to a compulsory popular referendum. Constitutional revision is therefore not easy to achieve. Another “construction problem” of federal popular initiatives is that the competence to decide on the admissibility of an initiative is vested in parliament. But such limits clearly pose rather legal, not mainly political questions. Parliamentarians are not fully equipped to decide such questions, and they have an inherent reluctance to pronounce themselves against the desire of at least 100’0000 voters. It is therefore submitted that parliament is not the appropriate body to fulfill the task of scrutinizing the admissibility of popular initiatives.
Finally, a systemic problem lies in the fact that a federal popular initiative must always be directed at the revision of the Swiss Constitution itself. It is not possible to launch an initiative for the adoption of an ordinary federal law. This leads to the enactment of constitutional provisions, such as the prohibition of minarets, which should not have a place in a constitutional document, because their substance is rather petty, or too technical.
Searching remedies against (direct) democratic decisions which produce substantial collateral damage via international institutions is not risk-free. A Strasburg judgment against Switzerland is likely to fuel the suspicion by the Swiss population against a “government of foreign judges”. Ultimately, the tension between direct democracy and respect for internationally guaranteed human rights is at stake here. The task of trying to reconcile popular sovereignty and the rule of law is a never-ending one.
 17 cantons plus five cantons with only one vote in the second chamber.
 The authentic German, French, and Italian texts of the Swiss Federal Constitution of 18 April 1999 are available at http://www.admin.ch/ch/d/sr/1/101.de.pdf (German version). An official English translation is available at http://www.admin.ch/ch/e/rs/c101.html.
 “Der Bau von Minaretten ist verboten.”; “La construction de minarets est interdite.”
 Federal Parliament, resolution on the admissibility of the initiative (Bundesversammlung, Bundesbeschluss/Assemblée Fédérale, arrêt federal) Bundesblatt 2009, p. 4381. See also the Message of the Government Federal Council (Bundesrat, Botschaft Bundesblatt 2008, p. 7603) of 27 August 2008.
 ECHR, Leyla Sahin v Turkey, appl. No. 44774/98 (Great Chamber), Reports 2005-XI, para. 105.
 ECHR, Cha’re Shalom Ve Tsedek vs France (Great Chamber), appl. No. 27417/95, reports 2000-VII, para. 80.
 European Commission on Human Rights, Iskcon and 8 others v. the United Kingdom, appl. No. 20490/92, Decision of 8 March 1994; ECHR, Manoussakis and Others v. Greece, appl. No. 59/1995/565/651, judgment of 26 Sept. 1996, para. 36; ECHR, Vergos v. Grece, appl. No. 65501/01, judgment of 24 June 2004, para. 32.
 ECHR, Vergos v. Grece, appl. No. 65501/01, judgment of 24 June 2004, para. 40.
 The ECHR prohibition of discrimination is “symmetrical” and does not only protect minorities or members of oppressed groups, but also, e.g., men and people with white skin. However, the fact that a politically relatively powerless minority is disadvantaged by a special law should have an impact on the balancing decision.
 ECHR, Dahlab v. Suisse, inadmissibility decision No. 42393/98, Reports 2001-VI): The prohibition of headscarves worn by a teacher in a primary school by the Swiss canton of Geneva is in conformity with Article 9 ECHR.
 ECHR, Leyla Sahin v Turkey, appl. No. 44774/98 (Great Chamber), Reports 2005-XI.
 ECHR, Lautsi v Italie, appl. No. 30814/06, judgment of 3 November 2009: display of crucifix violates Article 2 of Protocol 1 in conjunction with Article 9 of the Convention.
 See e.g., ECHR, Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, para. 123.
 ECHR, Leyla Sahin v Turkey, appl. No. 44774/98 (Grand Chamber), Reports 2005-XI, para. 107.
 Ibid., para. 110.
 Ibid., para. 107.
 Ibid., para. 107.
 Ibid., para. 108.
 ECHR, Hoffmann v. Austria, appl. No. 12875/87, Series A 255-C, para. 36.
 ECHR, Leyla Sahin v Turkey, appl. No. 44774/98 (Grand Chamber), Reports 2005-XI, paras 109-110, concluding that the Turkish prohibition of headscarves in public buildings was within the sate’s margin of appreciation.
 ECHR, Vergos v. Grece, appl. no. 65501/01, judgment of 24 June 2004, para. 42.