09. Dec. 2010

al ahram, Cairo

No 1026

Switzerland's black sheep

Mona Sewilam interviews Social Democratic Swiss Federal Parliament member and member of the Presidential Committee of the Parliamentary Assembly of the Council of Europe Andreas Gross about Muslim migrants and Islam, especially the legal aspects, as this is the root cause of the problem now confronting Muslims.

Fifty-three per cent of Swiss backed the «Ausschaffungsinitiative» (Expulsion Initiative) in a referendum 28 November. The initiative was put forward by the right-wing Swiss People's Party (SVP) who had been working on the campaign since 2007. How do you read this?

Both the SVP initiative and parliament's counter- proposal were on the ballot, along with an additional question asking voters which of the two they supported the most, should both pass. The initiative called for the automatic deportation of criminal foreigners who do not hold Swiss citizenship. The parliamentary counter-proposal was a compromise. The centre-left Social Democratic Party of Switzerland opposed both proposals.

In every western European society, 30 per cent of nationalist conservative people vote for racist parties and are tempted to follow racist and discriminatory discourse. The people who do not go long enough to school, who are unemployed, who risk losing their jobs and who have difficulties finding new ones are over-represented in this third. They all consume cheap boulevard newspapers and watch a lot of simple TV soaps, but are not fit and are too tired to understand difficult political problems. These people reveal the shortcomings of our efforts to provide decent education, work and a proper life to everyone. It is a shame that we cannot do more and better for them.

The «Ausschaffungs»-campaign commonly known as the Black-Sheep-campaign is in line with far-right Swiss politician James Schwarzenbach's discriminatory «Excess of Foreigners»-initiative that failed in a 1970 vote. To what extent are Arab and Muslim residents affected by the move?

This affects politically all who seem to be «different» or the «other». The Expulsion Initiative called for the automatic deportation of the Black Sheep, that is, criminal foreign residents who do not hold Swiss passports or citizenship. This is, according to SVP, necessary if Switzerland is to achieve or «create security».

As for Schwarzenbach, the aim was to limit the rapidly growing number of foreign workers who were cheap labour. They came from Italy, Portugal and Spain and competed with the Swiss. The majority of the Swiss voted against the initiative because migrant workers were perceived as very much needed to boost Switzerland's economy. Today, public debate is focused on German immigrants who are competent and can earn good salaries and, therefore, compete with the Swiss.

Federal statistics indicate that about 70 per cent of the prison population in your country is non-Swiss. Having said this, different elements have led to a bias in the statistics and, therefore, a high criminality rate among foreign residents. How are Muslim residents represented in the 70 per cent?

Since the early 1970s, there has never been any terror attempt or attack by anybody in Switzerland -- thank God and Allah and whoever deserves it. Among the 70 per cent of the prison population, Muslims are not over-represented. Generally speaking, immigrants are more tempted out of economic and social reasons to break the Swiss laws which may explain the 70 per cent you mentioned. This high percentage also illustrates the shortcomings in Switzerland's integration programmes. Additionally, Swiss police are one of the most visible state agents who do often act in a discriminatory way. But you may also see this among non-state actors such as people who rent apartments, employ workers and others.

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. All developed countries have not ratified the treaty.

They simply do not want to share their material wealth with the immigrants as they should. And ratification renders the international treaty legally binding. Generally speaking, over 20 per cent of Switzerland's population (roughly 7.5 million) are foreigners and are of great benefit to the Swiss economy. They have duties and responsibilities towards the host country, but they also have rights. More than 12 per cent of the 400,000 Muslim residents are Swiss nationals.

SVP has announced further steps against what it calls the spread of Islam in Switzerland. There is public debate on wearing the head scarf ( hijab ) at work. Will such debate result in repeating the Swiss anti-minaret scenario in the near future?

The right-wing nationalist politicians confuse and mislead the Swiss people -- a typical propaganda technique -- by using the minarets, head scarf and others as symbols of Islamic fundamentalism or militant Islamism. These politicians refer to Islamic radicals, and sometimes even militant Islamists, that they know about only from TV and international newspaper stories. In doing so, they have succeeded in finding justification and mobilizing the people against the construction of new minarets in Switzerland.

Everyone, man or woman, living in Switzerland is expected and must abide by the Swiss law. But how an individual dresses is not a business the state has to think about. How you dress yourself in public is a private matter, and nobody has the right to restrict this.

The anti-minaret scenario that started in 2005 unveils a complicated problem. Looking back, one may learn lessons for the future. In 2008, the Swiss government recommended to the Swiss Federal Parliament the rejection of the anti-minaret initiative stating that it violated international law and contradicted the Federal Constitution. How was that received by parliament?

Indeed, the anti-minaret initiative violates the European Convention on Human Rights (ECHR) and the United Nations International Covenant on Civil and Political Rights (ICCPR), and contradicts the Federal Constitution. And those were the reasons why more than 30 per cent of the members of parliament wanted to invalidate the initiative and thus prevent it from being put to a nationwide referendum on 29 November 2009.

Initiatives such as the minaret ban undermine the dignity of direct democracy because they offer an option in the vote which does not really exist. 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. And also the European Court of Human Rights in Strasbourg does not accept a majority's will concerning such issues. The court scrutinizes and judges whether human rights are respected. And if the majority does not respect human rights, the results of the minaret referendum will be invalided by the court.

Swiss government officials explained that parliament did not have the power and could not invalidate the anti-minaret initiative because Article 139 (3) of the Federal Constitution only stipulates that a popular initiative is «invalid» if it «infringes mandatory provisions [ jus cogens] of international law.» Your take on that.

I am convinced that the Swiss Federal Parliament had the power and could have invalidated the anti-minaret initiative. But the majority did not have the knowledge and conviction to use this power and do it. The Swiss constitutional doctrine has a narrow notion of jus cogens -- slavery, murder, genocide, non-refoulement. But I think basic human rights, including freedom of religion, also belong to jus cogens. And that is why I was one of those parliamentarians who suggested invalidating the anti-minaret initiative. But the majority of the two chambers did not agree. I have to accept it, but I am still convinced that it was wrong.

For ten years, I have shared the opinion that we should have a constitutional court which scrutinises and judges the legality of a popular initiative. I am also for a more professional Swiss parliament because many members today do not have the necessary resources to think and act more seriously. We need to amend our constitution to enable such changes. But in order to do so, we need to convince the majority of the people -- this is the democratic way we have to take and which we will pursue.

The Swiss Federal Office of Justice has argued that according to ECHR and ICCPR, freedom of religion has two aspects. The internal aspect deals with freedom to have, adopt or abandon a religion which is considered jus cogens and, therefore, should not be limited or restricted. According to the Office, the construction of minarets pertains to the external aspect, that is, freedom to manifest one's religion. The Office has stated that freedom to manifest one's religion is not jus cogens, and can be limited on various grounds or in cases of emergency.

I do not agree to the distinction between internal and external dimensions or aspects of religious freedom. We Christians have to respect the whole choice of Muslims and how they want to express their belief. We can only intervene, if this touches other basic rights protected by our constitution. A minaret does not do this.

I think the four minarets already built in Switzerland are nice monuments and did no harm to anybody. The external-internal aspect issue is just a justification so as not to invalidate initiatives of that nature. And even if we follow that logic and argument, the external dimension can only be limited to protect public safety, public order, health or morals, or the fundamental rights and freedoms of others (Article 9 (2) ECHR and Article 18 (3) ICCPR). There were no emergency factors involved and these various grounds were not present so as to ban the construction of new minarets. I think this will be part of the argument made at the European Court of Human Rights.

I also disagree that freedom of religion does not belong to jus cogens, a concept much less defined than the Swiss government stated. In comments on our new constitution 10 years ago, they admitted that the definition of jus cogens is much more open. I showed why in my statement before parliament. Constitutional interpretations can be creative and I followed such a concept.

This leaves us with a big problem here. For instance, if a future initiative opts to ban the head scarf, the Federal Office of Justice and Parliament will probably decide that it only violates the external aspect of freedom of religion. Accordingly, the initiative will be declared valid. This is while the majority of Muslims who wear the hijab believe it is much more than a manifestation of their own religion, that it is intrinsically tied to the internal aspect which is jus cogens.

That is why I belong to those who want to increase the limitations related to the validity of popular initiatives. It is very important to include the basic parts of the ECHR, including freedom of religion, that is, freedom to adopt and manifest one's religion, within these limitations. The constitution should include a provision that clearly bans popular initiatives violating international human rights. I think this will happen in the coming 10 years.

An anti-hijab initiative will never pass. I am sure that the majority of the Swiss learned the lesson from the anti-minaret initiative. I am convinced that the Federal Parliament will even enlarge the notion of jus cogens, which is legislatively possible because it is not set in stone as some argue.

The interviewer is a senior correspondent at the Egypt News Centre and alumni ambassador of the European Peace University in Austria.

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