14. Feb. 2010



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One of the unintended effects for those
who launched the initiative: Many new efforts
to increase the integration of Muslims are
already to be seen


MR. ANDREAS GROSS
Member of the Presidential Committee of the Parliamentary Assembly of the COUNCIL OF EUROPE, President of the social-democratic group MEMBER of SWISS FEDERAL PARLIAMENT, former President of the Institutional Committee

Questions: Mona Sewilam

You’ve written extensively and your party (the left-most Social Democratic Party, the second largest in the country and the Swiss Federal Parliament) has been against the minaret ban inside Switzerland which is already triggering a surge of especially rightist planks against Muslims in other European countries. How do you read that?

The Swiss are the only Europeans who can try to change their constitution whenever they like. The Anti-Minaret-Initiative was a specific Swiss decision but it expressed in two ways European tendencies which you find in most western European states like Germany, Austria, Denmark and the Netherlands: Many people have existential fears which are the product of economic and social problems but which they project on communities who are different from them and from whom they don’t know much. These projections are supported and even animated by right wing political organizations and parties who contribute to the social fears by neoliberal policies but who blame these communities in order to deter and to increase the fears and aggression in the society which serves the political purpose of these right wing, national-conservatives.

Speaking to Swissinfo on Dec. 1st immediately following the successful 29th November 2009 anti-minaret referendum, the right-wing Swiss People’s Party (SVP) announced further steps against, what it calls, the spread of Islam in Switzerland. SVP leader Toni Brunner stated that, «Muslims who settled in Switzerland had to realize that they could not turn up to work in a head scarf [hijab].» Will we be watching a repetition of the anti-minaret scenario in the near future?

The vote against the minarets had nothing to do with the nearby 400’000 Muslims who live in Switzerland. 99 % of them are well integrated, not to be seen in the public and do not catch any attention at all. Those who these right wing nationalistic politicians refer to are Muslim fundamentalists and sometimes even violent Muslims which they know only from the TV and international newspaper stories. The anti-minaret scenario will not be repeated, because nobody will underestimate anymore such a discourse. We ask from everybody who lives in Switzerland to respect the Swiss laws; how he or she dresses himself or herself is not a business the state has to think about. When they work as schoolteachers or as doctors in a hospital they should dress themselves in a religiously neutral way because our state is not a religious state, allows any religion in the private sphere and ask every religion to respect the common law.

According to Swissinfo, parliamentarian and senior SVP member Adrian Amstutz said that his party would seek a ban on the burqa – a loose body-covering including a face-veil, in the public sphere. But I haven’t seen any women wearing burqas in Switzerland! Is this «much ado about nothing» but might have detrimental repercussions?

You are right. You hardly see anybody in Swiss streets dressed like this and if you would it’s not our business or the state’s business to interfere. This is just another example to beam the attention to unknown communities and to charge them with problems they are not responsible for.

Amstutz added that SVP is considering outlawing special Muslim cemeteries. What does that mean and what’s the problem with that?

Amstutz is just a narrow minded nationalistic politician from the countryside who does not know a lot of Human Rights and other cultures and religions. We have towns and villages where you have Jewish cemeteries and as anybody who lived for decades in Switzerland also Muslim Swiss people should have the right to be buried in a way how it’s suit there believes. Amstutz does not know how the state and a society has to behave when they want to live up with the freedom of religion, a fundamental Human Right and core European value.

Amstutz also stated and I quote, «Forced marriages, female circumcision … are top of the [SVP] list.» Islamic Shari’ah prohibits forced marriages. Female circumcision had been a tradition practiced by Muslims and Christians alike and is penalized in Muslim countries including Egypt. What is the objective and why the misleading messages?

Such statements underline my hypothesis how ignorant Amstutz is. All this is prohibited by Swiss law and everybody has to live up to the law in Switzerland. Amstutz suggests that some are not doing this - without being able to name them - otherwise they would be punished. It’s just a racist discourse who does not know much about other communities in other parts of the world and repeats bad prejudgment. We have to establish more and better political and intercultural education and formation in order to enable our citizens to understand the anti-humanitarian purpose of such a discourse. This would be the best way to stop it.

The Swiss government had stressed that the anti-minaret referendum was not against Muslims or Islam but against fundamentalist developments. Do you think that the Swiss voters do really differentiate between good well-integrated Muslims in Switzerland and radical militant Islamists? To what extent are their sources of information about Islam accurate and reliable?

The referendum did harm to the Swiss Muslim community who did not offer any reason to be critiqued in what ever way. In this sense it was to them and to many other Muslims deeply unjust. The real reason of the negative image of the Islamic religion in the mind of too many Swiss are really the Islamistic fundamentalists they observe but not understand on the TV. Because they are not well educated about the Koran and the Islam religion these Swiss people believe the fundamentalist Islamistic discourse which refers to the Muslim religion and the Koran when they use violence. These Swiss do misjudge the Islam but nobody explains them their mistake because they do not read the papers which do this differentiated work. Too many Swiss work so much that they are to tired to read and to discuss world issues which are strange to them; out of this ignorance they produce wrong judgments and are politically mislead.

What does the future hold for mosques and Islamic teachings in Switzerland?

I am sure new Minarets will be constructed in the next five to ten years because the new sentence in the Swiss constitution will not be supported by the European Court of Human Rights in Strasburg where any Swiss Muslim can sue Switzerland when Swiss Courts do not allow him to construct a Minaret which respects the norms of public religious buildings that have to been respect in a town or village.

Since 2007, the right-wing SVP has also been working on the so-called «black sheep» anti-immigration campaign which goes along the lines of far-right Swiss politician James Schwarzenbach’s initiative («excess of foreigners») that failed in a 1970 vote. Human rights advocates have warned that the SVP campaign is reminiscent of the Nazi practice of Sippenhaft (laquo;kin liability»). Your take on that - what’s happening inside Switzerland?

In every western European society you face today 30 percent of national conservative people who vote nationalistic and are tempted to follow racist discourses. The people who went not long enough to school, who are weak on the labor market, who risk to lose their jobs and have difficulties to find new ones are overrepresented in this third. They all consume cheap boulevard newspapers and look a lot of stupid TV-soaps but are not fit and too tired to understand difficult political problems. These people express the shortcomings of our efforts to give to everybody an accurate education, work and sense of life. It’s a shame that we can not do more and better with and for them.

Professor of Public International Law at Basel University Anne Peters (2009) states that there was &lquo;no problem» gathering 100,000 signatures within 18 months to launch the anti-minaret federal popular initiative supported by SVP. In your opinion, which of the previously-mentioned SVP concerns may develop into an initiative first?

When you are mislead by TV pictures who are suggesting that Islam and violence against innocent people are the same and you don’t understand why this is wrong you also don’t understand why Minarets in Switzerland are not a problem at all and has not more to do with the problems in our world that any steeple. When you leave too many people alone with their misunderstandings, not understood problems and wrong perceptions you can not be astonished when such signatures might be found. Although I would not say it was easy to collect the signatures. This is never the case and I guess that Mrs. Peters has no experiences in signature gathering for popular initiatives in the framework of our direct democracy where the political power is really shared with the citizens.

Switzerland offers some of the best living standards in the world. With more than 20% of its population of 7.5 million foreigners, Switzerland has been perceived as «a country of immigrants» or the «world’s most immigrant-friendly country.» To what extent have migrant workers, specifically Muslim residents, been of benefit to the Swiss economy and how are they integrated?

Statistically you are right. But the Swiss general mindset is not so open to the immigrants, especially always to the latest immigrant communities, as these numbers suggest. Switzerland neglected too long too many elements of integration efforts you have to do and you have to provide to such communities. The 400’000 Muslims are generally well integrated in Switzerland. Some of the second generation immigrants have problems to find jobs and to respect the Swiss mentalities; many socially not privileged Swiss fear the quality of education for there children when too many non Swiss (German, French or Italian speaking) children are in a class and the teachers do not have enough time to help all pupils. Too many Swiss communities do not want to enable the State to have enough financial resources to establish a school system and cultural institutions which educate all in a good way and not only the well off.

Between 12%-15% of the 400,000 Muslim residents (almost 5% of the Switzerland’s population) are Swiss nationals, and 5% of the total are practicing Muslims. Is reporting one’s religion to the authorities a requirement by the Swiss government? What method/s do you use to estimate that?

These are estimations based on observations and polls and survey you might participate or not – nobody is required to tell to anybody how he uses his or her private time.

Federal statistics indicate that about 70% of the prison population in your country is non-Swiss. That is a really high figure. How many of those are Muslims? How many terror attacks or plots by Muslim residents have been carried out or stopped in Switzerland?

There was never any attempt to a terror attack by anybody in Switzerland – thank God and Allah and whoever deserves it. Immigrants are more tempted out of economic and social reasons not to live up to the laws which might explain some numbers you quote. But they illustrate also my remarks of integrative deficits.

Is Switzerland only focused on integration or on striking a balance between religious and cultural diversity on the one hand and integration on the other, which is not an easy matter?

Diversity was and is an element of the Swiss identity since ever. Modern Switzerland owes its existence and success to foreigners who immigrated here – especially after 1830 when Switzerland was the most democratic and one of the most progressive countries in the world. Then Switzerland was more open to immigrants than today. Since the two world wars the dominant Swiss mentality became closer, more narrow minded and fearful. They welcomed a certain economic opening but the cultural mindset did not live up to the economic culture. Too many Swiss do not want to pay the taxes you need today to offer all the education and culture they really need and deserve.

Why hasn’t Switzerland ratified the 1990 UN International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families? And Switzerland is not alone in that. All developed countries haven’t ratified the international treaty.

They don’t want to share their richness with the immigrants as they should.

The Swiss government has come under criticism at home for its handling of the case of the two Swiss businessmen, Rachid Hamdani and Max Goeldi, held in Libya since July 2008 days after the arrest in Geneva of Hannibal Qaddafi, the son of Libya's leader, and his wife. Some Swiss informed me that the diplomatic row and outrage felt by many Swiss may have been one main reason why some 57.5% said «no» to minarets?

It’s true that 2009 was a very bad year for the Swiss selfrespect. Many Swiss felt humiliated by the US government, by their banks and by Mr. Qaddafi. The anti-minaret vote opportunity was seen by too many as a opportunity of return game and to show the frustration against all those who humiliated the Swiss – including some of the ministers who should have retired from there posts. His element was totally underestimated by many of those who did not agree with the minaret. And of course it’s irresponsible to blame the Muslim community for things they are not responsible for.

President Qaddafi even called for the dissolution of Switzerland in August 2009. But Libya’s proposal submitted to the UN General Assembly was never accepted or circulated because the 1945 UN Charter prohibits countries from threatening the existence of other member states. Had that also driven the Swiss voters to support the minaret ban?

No, Qaddafis lack of respect and international law is not enough to explain the vote. You have to put him in a much broader context and should not overestimate him.

The government had been criticized in local media in Switzerland for not doing enough and not taking the anti-minaret initiative seriously. The Tribune de Geneve, for instance, stated that the government has left «the battlefield wide open to the adversaries». What did the government do exactly to stop the success of the initiative (at the legal and public awareness levels)?

The government lost by it’s general political and economic wrong doings the capacity to convince the majority not to make a mistake in the minaret vote. But in a democracy its not up to the government to set the tone against or for an initiative. This is the purpose of the public debate animated by the political parties, civil society organizations, MP’s and quality newspapers – they all failed because they did not do there job correctly. This is the real problem we have to solve.

Anne Peters (2009) states that, «Parliamentarians are not fully equipped to decide such questions [the inadmissibility of initiatives] …they have an inherent reluctance to pronounce themselves against the desire of at least 100,000 voters.» To what extent is the Swiss Federal Parliament, rather than the Federal Supreme Court, the appropriate body to fulfill the task of scrutinizing the admissibility of federal popular initiatives?

Since ten years I share the opinion that we should have a constitutional court which judges the legality of a popular initiative. I am also for a more professional Swiss parliament where the general competence in political judgments is higher because the members have the resources to think and act more seriously. But I did not yet find the majority I need to make these changes. We need to improve our constitution to enable such changes; but in order to do this you need to convince the majority of the people – this is the democratic way we have to go and which we will go.

The Federal Assembly recommended (by 129 to 50 votes) in spring of 2009 that the Swiss people reject the minaret ban initiative.

This is only a recommendation; you still have to convince the people and the citizens to respect it.

How much chance do Muslim residents, a minority, have to stop any future initiative that further discriminates against them, if SVP is said to be a strong/the strongest party in the Federal Parliament and the strongest in Switzerland?

It’s today the biggest, which you should not equal the strongest. They have a billionaire on there side who provides them with money the others don’t have. This inequality of resources is another structural problem the Swiss democracy faces and could not live up yet. Muslim residents have to take part the Swiss public debate, write in Swiss newspapers and should not hide there views – this is what democracy offers to them and what they should use.

The Swiss Federal Parliament didn’t have the power to declare the anti-minaret initiative inadmissible and void because Article 139 (3) of the Swiss Federal Constitution only stipulates that a popular initiative is «invalid», if it «infringes mandatory provisions of international law.»: What are these mandatory provisions or ius cogens (compelling law), particularly in relation to freedom of religion?

I am convinced that the Swiss Parliament had the power to invalid the initiative; but the majority had not the knowledge and the conviction to use this power and to do it. Officially the Swiss doctrine has a narrow notion of the ius cogens – slavery, murdering, genocide, non-refoulement), but I think basic human rights belong also to this ius cogens and that’s why I suggested to invalid the anti-minaret initiative, but the majorities of the two chambers did not follow me. I have to accept it but I am still convinced that it was wrong and I will try to change and to adjust the constitution in the right way.

So the new constitutional provision, Article 72(3), which reads: «The construction of minarets is prohibited» violates international human rights law. Doesn’t it also contradict, rather than violate, Articles 8(2) and 15(1 & 2) of the Constitution related to avoiding discrimination on the basis of religion, freedom of religion and the right to profess one’s religion, respectively?

I agree totally with you and these were the reasons why more than 30 percent of the MP’s wanted to invalid the initiative and to prevent it to be voted by the people. You undermine the dignity of the direct democracy when you offer an option in the vote which really does not exist – because the International Human Rights Court in Strasbourg does not accept a yes majority’s will. A democracy is not a democracy when it does not respect human rights and when a majority wants to limit the basic rights of a minority. This is disgraceful!!

So unlike Germany, the notion of «unconstitutional constitutional law» is not entrenched in Switzerland’s constitutional doctrine whereby a certain provision would be considered a fundamental core and cannot be contradicted by introducing any new provisions?

The Germans did this after they caused such a catastrophe in the mid 20th century. We do not need to do it this way; we ratified the European Human Right Convention and these basic rights are not up to the Swiss citizens to be denied to a minority of anybody.

Was there an element of emergency to launch an anti-minaret initiative to restrict the right to freedom of religion?

Not at all; the four minarets in Switzerland are nice monuments and did no harm to anybody.

This leaves us with a big problem here. Every time a federal popular initiative violates international law but without violating its fundamental principle of ius cogens, the initiative will be declared valid. For instance, if an initiative opts to ban the hijab in the public sphere, the Federal Parliament will probably decide that it only violates the external dimension of freedom of religion which is not considered part of ius cogens of international law. This is while the majority of Muslims believe the hijab is much more than a manifestation of their own religion, that it is more of an internal dimension i.e., ius cogens!

That’s why I belong to those who want to increase the limits of the validity of a popular initiative and would like to include the basic parts of the European Convention of Human Rights, e.g. the freedom of religion, within these limits. A anti-burka-initiative will never come through; I am sure that the majority of Swiss got the lesson they provided themselves with the anti-minaret-Initiative!

The same logic can easily be applied to mosques. The Federal Parliament may probably say that an anti-mosque initiative is valid on the grounds that it does not violate ius cogens in the Swiss Constitution. Mosques may be perceived as an external dimension of freedom of religion by Parliament.

To ban the construction of mosques would absolutely and clearly violate all elements of the freedom of religion. I am convinced that even the Federal Parliament today would not valid such a anti-mosque-initiative; even they would enlarge the notion of the ius cogens which is juridical possible because it’s not set in stone as some ague.

Switzerland is a pioneer of human rights … International human rights law is superior to the Swiss Federal Constitution. Isn’t Switzerland bound to harmonize its constitution with already ratified international treaties. Doesn’t it need to amend or add a constitutional provision that clearly bans initiatives violating international law and not just its mandatory provisions?

I agree with you and think this will happen in the coming ten years. But I don’t think that Switzerland is a pioneer of Human Rights, unfortunately not. It was a pioneer of Democracy, between 1830 and 1870. But although Democracy is a part of Human Rights – because to be ruled by others does not respect the dignity of a human being – but too many Swiss today still think, Democracy is not a part of Human Rights but a privilege of the Swiss citizens. They did not internalize the lessons many Europeans learned after the two big catastrophes of the 20th century: That the codification and internalization of Human Rights should prevent all Europeans to reproduce such violent catastrophes again as they allowed to happen with the two world wide wars from 1914 until 1945.

The existing Swiss laws on planning and construction guarantee public order. They already allow the prohibition of minarets at places where they might disturb the neighborhood and limit the height of minarets. So why spending time (almost 3 years), money and effort to add Article 72(3) to the Swiss Federal Constitution?

You are right, any construction of any building has to respect the local and regional construction laws. That’s for instance the reason why all the four existing minarets in Switzerland are smaller then the churches in the neighborhood. Those who launched the initiative did not want to include minarets in the neighborhood at all, but wanted to ban them, because they do not want to acknowledge that Christians have no religious monopole in Switzerland or in Europe; they are too weak to live up the religious diversity of modern societies. This is shameful and the expression of a big problem of the Swiss political culture.

Article 72(3) doesn’t clarify what a minaret looks like. Will that cause any future problems?

Not at all. The Strasbourg Court knows, what a Minaret is and that banning it does violate the freedom of Religion.

Switzerland only joined the UN after a successful 2002 federal popular referendum. It suspended its negotiations for EU accession until further notice as a consequence of a failed 1992 referendum rejecting the country’s EEA (European Economic Area) membership. These issues can be put to a referendum. But to what extent can a human rights issue like banning minarets be put to a popular referendum?

The openness of the Swiss Constitution for changes and improvements is a great attainment of Swiss Democracy and a expression of the high quality of Swiss freedom and Democracy. Until now it was not misused as it happened with the anti-minaret-Initiative. I will try everything that such a mistake will not happen again. That’s why we need to improve the infrastructure and the pillars of the Swiss Democracy which failed last autumn. By the way I was one of the two fathers of the popular initiative which brought Switzerland into the UN – the government did not have the courage to ask the people again after this proposition was defeated in 1986.

Direct democracy wherein sovereignty is lodged in the assembly of all citizens who choose to participate is an excellent system. But don’t you think that Switzerland needs to work on remedies against some direct democracy decisions?

Assembly democracy is a pre-modern form of Democracy. Modern direct democracy needs well functioning institutions and organizations to educate the people, provide substantive public debates and political knowledge. Too many Swiss believed too long that the Swiss families and schools may do this job; today we see that we have to invest much more resources in these institutions in order enable them to carry modern direct democracy which respects and include the basic human rights otherwise it would loose its dignity. Direct Democracy is not the problem; the problem is how it is implemented in the Swiss federal system.

Do you believe that freedom of expression is absolute or it comes with responsibility? SVP is known for its strong propaganda techniques. Why were the SVP anti-minaret posters allowed to be used in the first place. Aren’t they in themselves an example of hate speech, as well as cultural violence?

Of course they are, but when you let a non respectful initiative to pass the Parliament you can’t expect a respectful way of propaganda for it. The problem is that the SVP is the only party which has a lot of financial resources, because Switzerland is the only European country which think that it has not to publically finance the political parties. This in one example for the weakness of the institutions who should carry Direct Democracy. No basic freedoms are absolute freedoms; all have to look for a balance towards other freedoms. This is the art of a free society and in Switzerland we have a problem with this balance, indeed.

Minarets are not an essential aspect of the Muslim faith. There were no minarets during the time of Prophet Mohammed and there are many mosques without minarets outside Switzerland. Historically, minarets are even a development of church steeples …

I know, we wrote this in our booklet we published before the vote. You see it’s content on my website www.andigross.ch.

My question is: To what extent is the minaret ban influencing the process of integration of Muslims today?

I think it has an unintended effect for those who launched the initiative: Official efforts to increase the integration and improve its quality are already to be seen. But as I said those Muslims who are here are much better integrated that in many other European states.

Such a needless provocation has triggered more anti-Islamic sentiments and a feeling of exclusion and marginalization not just in an open country like Switzerland, but also in other European countries … What are the appropriate measures needed to curb Islamophobia, and counter discriminatory initiatives and negative reactions to Muslim residents? - Cutting trade ties is not a good idea?

I don’t think so. You have to increase the contacts, improve their quality – not hinder them to happen. I don’t think that the anti-minaret-vote increased anti-Islamic attitudes – it helps them to express themselves, the vote showed what exists, in Switzerland as well as in other European countries and that those who disagree with them have to be much more convincing and have to do much more to convince.

Switzerland is holding the Chairmanship of the Committee of Ministers, the executive body of the Strasbourg-based Council of Europe until 11 May 2010. Swiss FM Micheline Calmy-Rey, the chairperson, stated that one of Switzerland’s three main priorities is to protect human rights and the rule of law to make the organization «as effective and efficient as possible» …T o what extent does the Swiss government really have the power to guarantee the respect for international human rights inside Switzerland?

The Swiss government has the power to propose laws who do respect Human Rights. But it has not the power to guarantee that only such laws are decided – we are not a society where the government can dictate. That’s why I stress that Human Rights are collective social learning processes; you have to be able to convince at least the majority in order to make it happen. This needs much more than only the power of a government.

Out of some 200 mosques and prayer places in Switzerland, four have minarets which are not allowed to broadcast the call to prayer. What will be the fate of the 2006 application for building a new minaret for a mosque in Langenthal, canton of Bern? The application got approved before the November 2009 referendum.

These people may now consider to appeal to the Strasbourg Court of Human Rights. I also know from Swiss citizens who want to construct a minaret in Ostermundingen, close to Bern, and they are dedicated to go to Strasbourg if the highest Swiss Courts does not allow them to construct the Minaret.

Switzerland ratified the International Covenant on Civil and Political Rights. Why can’t an individual claiming to be a victim of the minaret ban communicate to the UN Human Rights Committee?

In the UN- system you do not know the individual right to address a Court who has the power to decide. This privilege is only known to the 800 millions of Europeans who are member of the 47 states of the Council of Europe. They have a Court for Human rights in Strasbourg where they can appeal when they think their state does not respect Human Rights. This is a much more effective protection than the UN system provides and this will be used against the majority of the Swiss citizens from the 29.November 2009.

Switzerland ratified the European Convention on Human Rights, which enables individuals (clear victims) to appeal to the European Court of Human Rights in Strasbourg. Taking into consideration the 2008 government report, how much chance does an individual have to win the case related to the minaret ban, and will he/she be financially compensated?

These chances are great, in any sense. And this Right will be used, for sure.

If the court declares the prohibition of minarets in Switzerland a violation of the European Court of Human Rights and rules against the ban, what will be the fate of Article 72(3) of the Swiss Federal Constitution? Will you need another federal popular referendum?

The sentence in the Swiss constitution is a dead sentence, it has not the juridical power it suggests. If you want to delete it is rather an esthetic question the Swiss people will once upon a time decide in the forthcoming 20 years.

Will Switzerland also take steps to harmonize its Constitution with international law by adding a provision that bans federal popular initiatives that violate international law and not just its mandatory provisions?

We should not do this with just all international law, but with the core Human Rights, which belong to all citizens and which are not up to the majority if they fit to a minority.

The leadership of the Swiss People’s Party has pledged to suspend Switzerland’s obligations under the international treaty, if the European Court of Human Rights rules against the minaret ban. Your take on that.

They can try do propose all stupidities, but I can assure you that the majority of the Swiss citizens will not follow them; they are not as stupid as the SVP leaderships seems to guess.

Switzerland has been perceived as a good image of religious tolerance. It has maintained good ties with Muslim countries, and Iran tops the list. For instance, your country has even been representing Iran’s interests in Egypt since 1979. To what extent can Switzerland be trusted by Muslims while mediating between Israel and the Arab and Muslim World today?

The Swiss Government can be trusted to do all good offices as well as needed in the interest of all and the whole world community. But the image of the Swiss people was for a too long time to good; I do not mind, that more world citizens have now a more accurate picture of the Swiss people. This is better in order to improve the reality so the reality in the future will deserve again a better picture.

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Many thanks for all efforts to understand Switzerland and I would be happy if we could improve democracy and Human Rights both, in Switzerland and in Egypt. For contacts and common efforts you may always publish my mail address info@andigross.ch.

Kontakt mit Andreas Gross