Federal popular initiative "Against the building of minarets"

The federal popular initiative "Against the building of minarets" was a popular initiative launched by politicians from the Swiss People's Party (SVP) and the Federal Democratic Union (EDU). The aim of the initiative was a nationwide ban on new minarets. The Federal Council and Parliament recommended that the initiative be rejected. The sovereign accepted the initiative on November 29, 2009 with a popular majority of 57.5: 42.5 and a cantonal majority of 19½: 3½.

initiative

Initiative committee and formation

In connection with the Swiss minaret dispute, politicians from the Swiss People's Party (SVP) and the Federal Democratic Union (EDU) launched the Federal People's Initiative Against the Construction of Minarets on May 1, 2007 (short: Minaret Initiative), which supports the construction of minarets in Switzerland wanted to prohibit. Originally the initiative committee wanted to include other aspects in the initiative; In November 2006, for example, it was announced that “the request should ensure that forced marriage , adjustments to personal justice for revenge , non-recognition of the state monopoly of violence and gender-unequal interpretation of compulsory schooling would be prevented from the very beginning”. The initiative committee was led by the national councilors Ulrich Schlüer (SVP), Walter Wobmann (SVP) and Christian Waber (EDU) and comprised a total of sixteen people. Fourteen of them were members of the SVP (including Oskar Freysinger , Thomas Fuchs , Jasmin Hutter and Lukas Reimann ) and two were members of the EDU. On July 8, 2008, representatives of the initiative committee submitted 113,540 valid signatures to the Federal Chancellery . On July 29, 2008, it established that the initiative had formally come about.

Text of the initiative

The initiative was worded as follows.

The Federal Constitution of April 18, 1999 is amended as follows:

Art. 72 para. 3 (new)

³ The construction of minarets is prohibited.

Article 72 of the Federal Constitution regulates the relationship between church and state .

Arguments

Arguments of the proponents

According to the initiators, a minaret has a political dimension. The minaret is a religious-political symbol of power, which expresses an undemocratic claim to sole representation. The practice of belief is not in the foreground. In addition, it is to be expected that an acceptance of minarets will lead to the need to allow the muezzin call in the future . Furthermore, a minaret does not necessarily belong to a mosque and a ban does not affect the religious freedom of Muslims.

Arguments of the opponents

According to Reinhard Schulze , an Islamic scholar , the minaret "belongs to the mosque like the church tower". The first minarets were created around 60 years after the death of the Prophet Mohammed 1500 years ago and are therefore an integral part of the historical tradition of Islam. The existence of 160 so-called “ backyard mosques ” without minarets, which exist in Switzerland, is more evidence of a shadowy existence for Muslims in Switzerland. The construction of minarets is a contribution by Muslims to step out of the shadows and to feel more at home in Switzerland.

Legal assessment of the initiative

From the proponents' point of view

Religious freedom

A ban on minarets is not a violation of religious freedom and international law. Freedom of religion primarily guarantees the free practice of religion and this would not be affected by a ban on minarets because minarets and not mosques would be forbidden. The Federal Constitution only stipulates that initiatives must not violate mandatory international law. According to the current international interpretation, freedom of religion is not part of mandatory international law (ius cogens). Religious freedom therefore constitutes no recognized category of mandatory international law. This, however, include prohibition of torture , genocide ban , prohibition of slavery , the right to life (within the limits of Art. 2 ECHR) and non-refoulement principle .

Constitutional law versus international law

Proponents argue that the debate about international law concerns is based on the opinion of some international law experts (e.g. Daniel Thürer). However, it makes a difference whether the international law concerns of the minaret initiative are viewed from a constitutional or an international law perspective. International lawyers tended to expand the scope of international law . The constitutional reality under constitutional law recognizes only some provisions of the ECHR and the International Covenant on Civil and Political Rights (CCPR) as belonging to ius cogens and not the treaties as a whole. Article 18 of the CCPR in conjunction with Article 4 (2) could provide a handle against the minaret initiative. The domestic regulation of conflicts between the constitution and international law is unclear. In case of doubt, international treaties would have to be terminated if a popular initiative that violates it is accepted.

One could take the view that the catalog of mandatory norms of international law should be expanded. The question arises, however, according to which criteria this should be done. Because if every international law treaty were to take precedence over the constitution, this would result in a weakening of the right to self-determination and, indirectly, a significant weakening of the rights of the people. This could lead to a de facto far-reaching suspension of the political right to a total or partial revision of the Federal Constitution. Therefore, a cautious extension of the ius cogens should be advocated.

From the opponent's point of view

Possible invalidity of the initiative

To argue against the initiative that the popular initiative should be declared inadmissible by the Federal Assembly for legal reasons . According to Article 139 Paragraph 2 of the Federal Constitution, initiatives that violate mandatory international law (ius cogens) are wholly or partially invalid. The initiative contradicts the basic principles of the Federal Constitution and the European Convention on Human Rights (ECHR) and a broad interpretation of the concept of mandatory international law.

Endangering freedom of religion

The initiative violates religious freedom and thus the ECHR and is possibly a violation of the racism penal norm . The initiative contradicts the practice of the European Commission against Racism and Intolerance of the Council of Europe . On the one hand, section 1 of Article 9 is relevant for the facts at the level of the ECHR. a. guarantee the freedom to practice one's religion while observing religious customs; On the other hand, however, also Section 2, which allows legal restrictions on religious freedom if they are necessary in a democratic society to a. ensure the protection of the rights and freedoms of others.

For Marcel Stüssi , legal scholar at the University of Lucerne , the result is a stalemate, according to which the initiative can be declared both valid and invalid in accordance with international law , and the Federal Assembly would be free to decide in favor of one or the other. The Federal Assembly, as the “guardian of good and just law”, is by virtue of its public authority and responsibility almost obliged to assess the legal and political consequences of a possible ban on minarets and to base its decisions accordingly carefully and prudently.

Lack of proportionality

Opponents argue that the exercise of the right to freedom of belief and conscience can be restricted if there is a public interest and proportionality. According to Astrid Epiney, however , a general ban on the construction of minarets is not proportionate because there is no obvious overriding public interest.

Election recommendation from Parliament and Federal Council

The Federal Council and Parliament rejected the initiative and recommended that those eligible to vote put a no in the ballot box. Parliament dealt with the initiative between March and June 2009. The National Council recommended the initiative for rejection by 132 votes to 51 (with 11 abstentions), the Council of States with 39 votes to 3 (with 2 abstentions). The Federal Council declared that the initiative violated freedom of belief and conscience as well as legal equality and endangered religious peace in Switzerland. A building ban on minarets would inadmissibly restrict Muslims from expressing their faith in public. The goals of the initiative are not compatible with the values ​​of a free society and direct democracy.

Voting battle

Cardboard minaret in Bussigny-près-Lausanne as a protest against the popular initiative

In the run-up to the parliamentary elections on October 21, 2007 , opponents of the initiative expressed the opinion that the initiative was a populist campaign tactic. It was questioned whether the general construction ban on minarets in Switzerland could prevent the spread of Islamist ideologies that are hostile to Western society: “It is of little use to fight against the construction of a minaret without knowing which one Activities in the mosque would be offered. That is why the control of the activities in a mosque is more important than the minaret. " A general construction ban on minarets was also seen by opponents of the initiative as preventing dialogue: a minaret is a sign of identity for Muslims, like religious buildings for other religious communities, and it is in the interests of religious freedom (and national peace) that Muslims have mosques with minarets (represented among others by Kurt Koch , the then bishop of the Basel diocese and president of the Swiss Bishops' Conference ).

A controversy over freedom of expression was sparked with the pro-poster of the initiative committee. It showed a woman with a black niqab in front of a lying Swiss cross with black minarets. The poster has been criticized for depicting minarets like rockets. At the request of individual cantons and cities, the Federal Commission against Racism published an analysis of the poster, describing it as “denigrating and defaming the peaceful Swiss population” as it “can disturb public peace”. As a result, the hanging of the posters was banned in some cities and cantons. This was criticized mainly from right-wing circles, but also from individual representatives of the left, which led to a debate about freedom of expression and censorship. The design of the poster came from Alexander Segert and his advertising agency Goal .

The five most important German-speaking Muslim organizations expressed themselves in an open letter on May 15, 2007: “We are convinced that the majority of the Swiss population does not support such initiatives, as this undermines the fundamental values ​​of religious freedom for the first time. This damages the reputation of liberal and neutral Switzerland, both in Europe and around the world. "

Voting results

National result

Only in the four cantons of Basel-Stadt (German-speaking), Geneva , Neuchâtel and Vaud (all three French-speaking) was the initiative rejected.

Preliminary official final results for the referendum on November 29, 2009 on the inclusion of the wording "The construction of minarets is prohibited." in the federal constitution:

Yes (19 ½ stands)

No (3 ½ stands)

Canton	Yes (%)	No (%)	Participation (%)
Aargau	64.0	36.0	51.2
Appenzell Ausserrhoden	63.7	36.3	57.3
Appenzell Innerrhoden	71.4	28.6	49.7
Basel-Country	59.9	40.1	50.5
Basel city	48.4	51.6	57.2
Bern	60.7	39.3	51.4
Freiburg	55.9	44.1	51.5
Geneva	40.3	59.7	57.8
Glarus	68.8	31.2	46.9
Grisons	58.6	41.4	45.6
law	51.2	48.8	50.0
Lucerne	61.2	38.8	53.7
Neuchâtel	49.2	50.8	53.9
Nidwalden	62.8	37.2	56.9
Obwalden	62.4	37.6	61.0
Schaffhausen	63.5	36.5	69.6
Schwyz	66.3	33.7	51.6
Solothurn	64.0	36.0	55.0
St. Gallen	65.9	34.1	53.8
Ticino	68.1	31.9	49.2
Thurgau	67.7	32.3	53.3
Uri	63.8	36.2	52.0
Vaud	46.9	53.1	52.8
Valais	58.0	42.0	61.1
train	56.7	43.3	61.9
Zurich	51.8	48.2	54.9
Swiss Confederation	57.5	42.5	53.4

Local results

The voting results at community level show a gap between town and country. In the city ​​of Bern, almost two thirds of the voters rejected the initiative, while in the Bernese Oberland district of Frutigen two thirds approved the initiative. In the four municipalities with existing minarets (Zurich, Winterthur, Geneva and Wangen bei Olten), the initiative was rejected in the three municipalities and accepted in the rural municipality of Wangen bei Olten.

Percentages of yes votes (pro initiative) in the respective zones:

• Urban communities: 54.2%
• Rural communities: 65.9%

According to media reports, the urban-rural ditch outweighed the so-called Röstigraben .

Individual evidence

1. ↑ Basler Zeitung , deadline for the initiative “Against the construction of minarets” is running ( Memento from September 27, 2007 in the Internet Archive )
2. ↑ Initiative committee “Against the building of minarets” ( Memento of the original from April 20, 2008 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. 
3. ↑ Federal Office of Justice , page no longer available , search in web archives: popular initiative "Against the construction of minarets"
4. ^ Federal Chancellery , Eidgenössische Volksinitiative “Against the building of minarets”
5. ^ Federal popular initiative 'Against the building of minarets'. In: admin.ch . Federal Chancellery , accessed on June 22, 2015 . 
6. ↑ Brief arguments on the initiative to ban minarets from the initiative's website.
7. ↑ Der Bund , In the Election Year Against Minarets , May 2, 2007 (pdf).
8. ↑ European Convention on Human Rights (ECHR), Article 2 ECHR
9. ↑ Thomas Hasler: Minaret initiative probably invalid , Tages-Anzeiger , May 20, 2007.
10. ↑ Thomas Hasler: Why “compelling international law” is inevitable , Tages-Anzeiger , May 20, 2007.
11. ↑ ICCPR , Art. 18 CCPR
12. ↑ ICCPR , Art. 4 Paragraph 2 CCPR
13. ↑ NZZ , No reason for the declaration of invalidity ( Memento of March 31, 2009 in the Internet Archive ) , box on article from the May 4, 2007 edition
14. ↑ 20 minutes, Minaret Initiative Violates Religious Freedom , May 3, 2007.
15. ↑ NZZ , Against the Minaret as a Symbol of Power ( Memento from March 31, 2009 in the Internet Archive )
16. ↑ ^{a b} 20 minutes, Minaret Initiative Violates Religious Freedom , May 3, 2007
17. ↑ University of Lucerne, Does Parliament have to declare the initiative to ban minarets invalid? , July 22, 2008.
18. ↑ Federal Council media release against building ban on minarets ( memento of March 24, 2009 in the Internet Archive ) of August 27, 2008
19. ↑ Consultations on the popular initiative in parliament
20. ^ FDJP media conference on October 15, 2009. (No longer available online.) Archived from the original on January 12, 2016 ; Retrieved July 26, 2014 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.  
21. ↑ Swissinfo, Popular Initiative for a Minaret Ban , May 3, 2007.
22. ↑ Vatican Radio , Switzerland: Bishops against general ban on minarets ( Memento of October 12, 2007 in the Internet Archive ) , May 3, 2007.
23. ↑ tagesanzeiger.ch The man behind the minaret poster appears under the article about Alexander Segert
24. ^ Abendblatt.de Campaign against minarets - article about Alexander Segert developed by Hamburger Werber
25. ↑ Association of Islamic Organizations in Zurich, statement on the initiative to ban minarets ( memento of August 30, 2011 in the Internet Archive ) (PDF; 48 kB)
26. ↑ Federal Chancellery: Template No. 547, preliminary official final results , November 29, 2009
27. ^ Federal referendum of November 29, 2009. In: sta.be.ch (State Chancellery of the Canton of Bern, PDF ).
28. ↑ Federal Statistical Office ( Memento of the original dated September 23, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Voting details of the BSF, with a map showing; Retrieved January 20, 2010 
29. ↑ The Federation of November 30, 2009