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Banning of Minarets: Addressing the Validity of a Controversial Swiss Popular Initiative

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The proposal to ban minarets is controversial by its very nature. On the one hand Swiss citizens are sovereign and act as the ultimate supreme authority. By their will they may seek via popular initiative to enact, revoke or alter such, and any, constitutional provision as they see fit. On the other hand there are so-called material bars to Swiss constitutional amendments—such as human rights—arising from the provisions of international law. Not surprisingly, these material bars to absolute sovereignty are fiercely contested because they mean either greater or lesser powers to the citizen and, indirectly, to the political parties.

The popular initiative to ban minarets raises not only questions in respect of the relationship between domestic and international law, but also appears to challenge the legal architecture of Switzerland. The initiative may be held invalid by the Swiss General Assembly (henceforth 'General Assembly' or 'Assembly') on the grounds that it breaches the peremptory norms of international law. If this proves to be the case, the Swiss people will not be given the opportunity to vote on it. Arguably, such interference is feasible only if the material bar to initiatives is widened beyond its originally accepted scope. Apparently, the powers of the Swiss Sovereign became thereby unequivocally curbed. The relationship between Swiss domestic law and international law is pivotal also should the General Assembly declare the initiative to be valid. The people would as a consequence of the Assembly's decision possess the right to vote either for or against the initiative. But regardless of the poplar vote's outcome, the second option prima facie implies that the sovereignty of the Swiss citizens has been upheld, and concessions need only to be made by those who are either for or against the proposed ban. Yet in its international context the matter is more complex and more far-reaching than that.

The first part of this paper concentrates on the question of whether it is advisable for the General Assembly to compromise the people's sovereignty by widening the original scope of peremptory norms. The second part explores what a popular vote in favour of the ban on minarets could mean in law.

In order to raise the awareness of the subject matter beyond its legal dimension, the introduction and conclusion of this paper will shed specific light on the rule of law as a philosophical doctrine.

Affiliations: 1: Researcher and Lecturer in Human Rights Law, University of Lucerne, Switzerland


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