Un droit d’initiative sans limites : la revision partielle de la Constitution suisse par la voie de l’initiative populaire n’est pas soumise au respect des droits de l’homme

Abstract

Switzerland possesses well-developed instruments of direct democracy and has an absolute conception of the notion of popular sovereignty. The “right of initiative” gives to the Swiss citizens the possibility to make a proposition to amend the Constitution. In order to launch a citizens’ initiative proposal, the signatures of one hundred thousand electors must be collected within eighteen months. If the majority of voters and cantons accept the constitutional project, it will come into force. However, at the moment the material limit is the respect for the peremptory norms of International Law. If a citizens’ initiative proposal is contrary to other rules of International Law, the Parliament must declare it valid and the Government puts it to a vote. According to the principle of the “volonté populaire”, a decision taken by popular vote must be put into practice. At the present time, if the Swiss authorities do not succeed in applying the new constitutional norm in conformity with International Law, they must bear the risk of being condemned by International instances such as the European Court of Human Rights. As a result, Switzerland is currently confronted with the dilemma of either rejecting the popular vote or violating its International responsibility. The time has come to reform the exercise of popular rights in order to both strengthen direct democracy and protect fundamental rights. The research will look at the different solutions, in terms of changes in procedure and content, which are currently discussed within the political and the public arenas. The resolutions include an extension of the material limit beyond the peremptory norms of International Law, the introduction of the judiciary as a controlling organ and the incorporation of a preliminary test of conformity of the proposal to International Law. However, in the final, according to the principle of amendment of the Constitution itself, only the people themselves can decide to restrain their right of initiative and they can reconsider their decision at any time. The research will be illustrated by the recent popular initiative “Against the construction of minarets”, which contradicts the freedom of religion and the principle of non-discrimination.