When direct democracy trumps human rights: Unveiling the Swiss “Burqa Ban”

The new Swiss constitutional prohibition against face coverings was instigated via “popular initiative”. Despite pleas from the federal government to reject the proposal, citizens voted to ban face coverings in public places. Understood as a largely symbolic “burqa ban”, the initiative raises complicated issues about how to reconcile Swiss direct democratic processes with human rights - write Prof. Eva Maria Belser and Simon Mazidi.

On 7 March 2021, the Swiss population and cantons approved a “popular initiative” banning face coverings in public spaces, including in restaurants, shops, and public transport. With a voter turnout of 51.4 percent, the initiative was accepted by a majority 51.2 percent of the population and passed by 20 out of 26 cantons, thereby reaching the double majority threshold needed to pass the initiative. The population approved this initiative despite the fact that the national executive (the Federal Council), and both chambers of parliament opposed the ban. In this piece, we explain the legal framework that allowed such a vote to take place, and situate the vote in the Swiss legal and political context. By doing so, we will show how two fundamental principles of constitutional law, democracy and the rule of law, play out in the Swiss constitutional system, and we suggest that further mechanisms to reconcile these principles are necessary.

Background and Debates during the Campaign

The campaign leading to this referendum was launched by the “Egerkingen Committee”, made up of politicians from the right-wing Swiss People’s Party. The same committee, over ten years ago, was behind the successful referendum campaign to introduce a ban on new minarets in the Swiss Federal Constitution. Even though the anti-face covering proposal did not mention Islam, the initiative clearly targeted the burqa and niqab: the committee’s poster featured a woman in a black niqab and the words “Stop extremism”. Politicians, media, and campaigners hence dubbed the initiative the “burqa ban”.

The ban purports to solve a virtually non-existent issue: approximately thirty Swiss residents regularly wear a niqab.

Interestingly, the initiative proposed to solve a virtually non-existent issue. While about 5.3% of Switzerland’s 8.6 million people are Muslim, only twenty-to-thirty Swiss residents regularly wear a niqab and there is no record of women wearing burqas in Switzerland at all. During the campaign – ironically taking place while everyone had to veil faces with sanitary masks – numerous overlapping and contradictory arguments were raised. First, the right-wing Swiss People’s Party, other conservative groups, and some politicians from centrist parties claimed that face coverings endanger public security and that Islamic face veiling undermined an open society and was not compatible with the country’s liberal value system. Opponents, a broad alliance of parties from the centre to the left, pointed out that the initiative conjured up an imaginary otherness and argued that the prohibition of face covering, not the face covering itself, contradicted liberal values.

The second major point of debate revolved around the subordination or agency of women and revealed a central rift within gender equality proponents. On the one hand, some groups of feminists joined by liberal Muslims advocated for the ban arguing that it would counteract the oppression of women by discriminatory patriarchal traditions. On the other hand, proponents of human rights and women’s groups argued that a ban regulating women’s behavior was incompatible with the concept of self-determination and insisted that the presumed link between face covering and external control was not supported by any evidence. The Swiss tourism sector, trade unions, and church groups also opposed the proposal. The Swiss government issued a conciliatory counter-proposal for a new law if the initiative failed, which would oblige people to remove face coverings for identification purposes in public offices or in public transport.

Unlike the notorious ban on new minarets in 2009, unique to Switzerland, the country’s recent vote bears witness to a worrying proliferation of so-called “burqa bans” in Europe. At the European level, nationwide bans have been adopted in neighboring Austria and France as well as in Belgium, Bulgaria, Denmark and Latvia. But why did the Swiss referendum succeed despite the fact that all state authorities rejected the idea?

Popular Participation in Swiss Constitutional Change

On the day of the vote, 7 March 2021, the face covering ban became part of the Swiss Federal Constitution, illustrating the openness of the supreme law to changes initiated by the people. Any group of seven citizens forming an initiative committee can launch a “popular initiative” by drafting a proposal and collecting 100,000 signatures within 18 months. The initiative committee usually proposes one or more fully formulated constitutional amendment(s) for direct transplant into the Constitution. The Federal Assembly can only recommend whether the initiative should be accepted or rejected and submit a counter-proposal to the initiative, as happened in this case. Amendments to the Constitution then enter into force immediately upon the approval of an initiative by the people and the cantons.

The Federal Assembly’s decision on the legal validity of a popular initiative cannot be challenged before the Federal Supreme Court.

The Federal Assembly must declare an initiative wholly or partly invalid if it finds that stipulated constitutional requirements are not fulfilled. But the grounds for a declaration of invalidity are very narrow: when an initiative fails to comply with the requirements of consistency of form and of subject matter (formal requirements) or if it violates peremptory norms of international law, such as, for example, the prohibition of crimes against humanity, genocide, and slavery (substantive requirement). The Federal Assembly’s decision on legal validity cannot be challenged before the Federal Supreme Court.

In all other cases, even when a popular initiative contradicts fundamental constitutional norms and values or non-peremptory international obligations of the country, a vote is mandatory. Thus, ex ante control of direct democratic participation in constitutional amendments is very weak due to the limited grounds of invalidity and the fact that the Federal Assembly is a political body with limited interest in invalidating popular initiatives that are supported by over 100,000 citizens. In the case of the prohibition of new minarets, the Federal Council and the Federal Assembly stated that the popular initiative contradicted fundamental rights of the constitution as well as human rights guaranteed by the European Convention of Human Rights, but could neither prevent the referendum from taking place, nor its acceptance by the majority of the population and the cantons. Then, as now, the Swiss constitutional system favors democracy over the rule of law and human rights when the two constitutional principles clash.

Popular initiatives are increasingly used to bypass parliamentary processes.

Ever since the introduction of popular initiatives in 1891, roughly 220 initiatives have been brought to the ballot box. Historically, direct democratic instruments have mostly been used by political minority groups to introduce proposals that the established political parties in parliament did not want to take up. Recently, however, this has changed dramatically. Increasingly, political parties are resorting to initiatives to mobilize their constituencies and to bypass parliamentary processes. The increased party activity outside the parliamentary process correlates with the success rate of initiatives. While they have been mostly unsuccessful in the past, more and more initiatives are being accepted in recent years. Not only has the success rate grown, but so has the polarizing nature of numerous initiatives often targeting minorities, foreigners, and people convicted of criminal offenses. While scholars continue to advocate for stricter human rights scrutiny of popular initiatives, such a crucial counter-majoritarian device is still missing in the Swiss constitutional landscape.

Absence of Human Rights Scrutiny

Given the limited grounds for invalidity, new constitutional amendments adopted through popular initiatives may create contradictions with older constitutional provisions guaranteeing fundamental rights. In general, the authorities deal with such intra-constitutional tensions by issuing federal acts that soothe conflicts (not necessarily fully implementing the initiators’ aspirations) and by interpreting the Constitution in line with international law. In the case of the minaret ban, a constitutional prohibition deemed self-executing, such option was not possible. The constitutional ban violates religious freedoms and the right to non-discrimination – and no constitutional interpretation can help. Nevertheless, the constitutional provision still stands on solid ground after more than ten years since two cases challenging the legality of the ban failed for lack of standing at the European Court of Human Rights (ECtHR) (Quardiri and Ligue des musulmans de Suisse, et autres).

Politicians and citizens pointed towards European Court of Human Rights judgments to claim the human rights compatibility of the ban.

While the Federal Council during the campaign on the minarets clearly stated that the initiative would cause disproportionate encroachment on fundamental rights, human rights scrutiny was largely absent from the discussions about the face covering ban. This was probably due to the fact that the face covering initiative was presented as contributing to individual freedom and equality (despite the fact that this argument has already been rejected as inadmissibly paternalistic in the case law of the ECtHR). On the other hand, politicians and citizens pointed towards the ECtHR judgments to claim the human rights compatibility of the ban. In the complaints concerning the French (S.A.S) and Belgian (Dakir and Belcacemi) bans, the ECtHR had indeed concluded that although the bans contravened art. 8 and art. 9 of the European Convention on Human Rights, the restrictions could be justified as they pursued the goal of “living together” – a broad and undetermined concept considered by the Court as a sufficient justification, mostly by granting a wide margin of appreciation to member states.

Unfortunately, the Federal Assembly had already referred to these ECtHR cases when approving amendments of cantonal constitutions introducing burqa bans. In numerous cantons, popular initiatives had aimed at general bans of face covering before the federal initiative was launched. While these initiatives failed in the cantons of Bern, Basel-Stadt, Zurich, and Glarus, they were successful in Ticino and St. Gallen. The argument of the Federal Assembly when approving these bans was mainly that they did not violate the European Convention of Human Rights.

The approval of the cantonal burqa bans by the Federal Assembly is final and cannot be challenged before the Federal Supreme Court. This is unfortunate because the parliamentary approach reveals a problematic understanding of fundamental and human rights scrutiny. The Strasbourg Court is limited by its subsidiary role and the goal of establishing a minimum standard for the protection of human rights in Europe. Thus, it in no way exempts national authorities from proper constitutional and international human rights scrutiny. The scope of constitutionally protected fundamental rights might go well beyond the scope of the Convention’s rights, a fact that the Swiss authorities seem to have forgotten. As parliamentary scrutiny is binding on the judiciary, the laxness of parliament hinders effective and dynamic human rights interpretation by the courts.

The unconsidered approval of the cantonal bans is also problematic from the point of view of international law as other international human rights treaties must be considered, even if the decisions of their bodies are not binding. The UN Human Rights Committee, for example, in two cases concerning France, expressed the view that bans justified by the “living together” concept were not compatible with the rights and freedoms of others. This position was confirmed by the OHCHR with regard to the recently adopted nationwide ban on face coverings in Switzerland. In a reaction to the outcome of the vote, the OHCHR issued a statement saying that the Swiss ban unduly restricted women’s religious freedom based on a vague justification.

The Federal Assembly is very reluctant to invalidate federal initiatives or to withhold approval of cantonal constitutional amendments.

Generally, the Federal Assembly is very reluctant to invalidate federal initiatives (submitted to parliament before the vote but after the collection of signatures) or to withhold approval of cantonal constitutional amendments (submitted after a cantonal vote). In the second situation, the parliamentary approach is even more problematic. While, admittedly, the Federal Assembly does not have much leeway when it comes to invalidating popular initiatives to amend the Federal Constitution, the standard of validity is in fact much broader with regards to reviewing cantonal constitutional amendments. Federal initiatives can only be invalidated when they violate peremptory norms of international law (a term the chambers could – and should – interpret more broadly). In contrast, parliament can – and should – do a comprehensive review of cantonal constitutions and withhold approval whenever the cantonal norm conflicts with federal or international law. However, it prefers to invoke a principle called in dubio pro popolo (in case of doubt, in favor of the people), thereby illustrating that a political body is ill suited to constrain political decision-making and that the rule of law (and the enforcement of the hierarchy of norms) would require judicial control.

The crucial role of parliament in conducting adequate ex ante human rights scrutiny – and the considerable shortcomings of such a constitutional arrangement – is further highlighted by the fact that there is no comprehensive ex post judicial review in Switzerland. As already mentioned, the decision of the Federal Assembly to validate a popular initiative or to approve a cantonal constitutional amendment is final and cannot be challenged in court. Once a validated federal initiative has been accepted by the majority of the people and the cantons, it automatically turns into a new constitutional norm – with no political or judicial authority having a say. The sovereign, meaning the people, has spoken: its decision is final. Similarly, the parliamentary decision to approve a cantonal constitutional norm is binding on the courts and is not reviewed by the Federal Supreme Court unless overriding law has changed since the approval. Overall, the constitutional system of Switzerland most often opts for (direct) democracy and not for the rule of law and human rights, when the two fundamental principles clash.

Implementation, Effects, and the Way Forward

Shortly after the initiative on the burqa ban was validated and accepted, another unresolved issue came to the fore: which level of the federal structure should be responsible for implementing the controversial new ban? The results are not self-executing and must be implemented by statutory law within a period of two years (in order to clarify the prohibition, the exceptions to it, and to determine the consequences of a violation). Both tiers, the Confederation and the cantons, currently seem rather reluctant to take up the task. The federal authorities claim that the national tier is not competent to regulate the use of public spaces. As the cantons enjoy residual competence, it will most likely be up to them to take up the unwanted burden. This will, however, lead to a patchwork of 26 cantonal regulations on face coverings – and thus to more burqa bans than actual burqas in the country. Most recently, the federal authorities agreed to legislate within their sphere of competence, such as public transport, thereby preventing a scenario where a person wearing a niqab and travelling from Geneva to Zurich has to comply with several cantonal regulations.

There are no legal mechanisms able to hold inactive legislators legally responsible for failing to implement constitutional amendments.

What happens if the legislators of the country do not comply with the two years implementation deadline? The answer is as simple as it is banal: nothing. There are no legal mechanisms able to hold inactive legislators legally responsible for failing to implement constitutional amendments properly. At first sight, non-implementation would be deplorable as it would imply disregard of the democratic will. At second sight, one still hopes that the country will not end up having 27 burqa ban legislations, coordinating them vertically and horizontally and wasting much time and energy without the prospect of achieving anything useful.

In Austria, the ban mainly led to an additional workload for the police, as they have to issue warnings against people wearing smog masks, ski gear, and animal costumes. In France, the ban did not reduce the number of fully veiled women, but forced them to socially and physically isolate themselves. The experiences of other countries seem to illustrate that the ban – if it ever aimed at contributing to gender equality – is likely to produce the opposite effect and does not help the aim of “living together”, but rather leads to living more separately.

The burka ban, finally, illustrates once again that popular initiatives targeting minorities may lead to human rights violations. How preventive human rights scrutiny can be strengthened without calling direct democratic participation into question and thus better reconciling the democratic principle and the rule of law is one of the fundamental constitutional questions that remains open. In the immediate term, one would hope that the national parliament would more broadly interpret the peremptory norms of international law and declare popular initiatives violating international human rights guarantees invalid. In the medium term, the Swiss constitution-maker should consider stating broader limits to direct democratic rights and mandate the Federal Supreme Court to enforce these limits.

Prof. Eva Maria Belser holds a Chair for Constitutional and Administrative Law at the University of Fribourg and a UNESCO Chair in Human Rights and Democracy. Simon Mazidi is a PhD Student at the University of Fribourg and Research Assistant at the Chair for Constitutional and Administrative Law.