Direct democracy means work. This upcoming Sunday, the Swiss are called to cast their votes on no less than four popular initiatives. By far the most important one is the popular initiative entitled “For the effective expulsion of foreign criminals”. It has been launched by the nationalist Swiss People’s Party (SVP), the country’s largest political party (almost 30%). It aims to make expulsion of foreigners even more rigorous than the system elaborated on the grounds of an earlier SVP initiative from 2010. Polls show that the decision will be tight.
In this vote, there is much at stake. The problem is not just the xenophobic undercurrent. The initiative dramatically threatens what lies at the very heart of Switzerland’s successful political system: the division of power, the intricate checks and balances incorporated in the political institutions, the respect of international law, equality before the law and proportionality.
The initiative consists of a detailed enumeration of the offenses that would automatically lead to expulsion, without any legal recourse. Nor will any law have to be negotiated in parliament for implementation if the initiative is accepted. Instead, the detailed list of offenses will be included directly in the constitution. This runs contrary to the classical principle according to which the top of the hierarchy of a country’s legal norms should be as general and as abstract as possible. And it will also castrate the established political institutions and the judiciary.
Another problem is that the initiative, if accepted, will quite certainly be incompatible with the Swiss-EU bilateral agreement on the free movement of persons. An earlier initiative aiming to end “mass immigration” accepted two years ago already collides with the treaties. The Swiss government will thus face an ever more impossible task trying to save the bilateral treaties which are enormously important for the country’s economy. According to the treaty, no EU citizen may be expelled for a minor offense – but that’s exactly what will happen. SVP officials deny this risk, but in fact they couldn’t care less. Abandoning the treaties is quite to their taste.
The initiative proposes two categories. 1) With grave offenses such as murder, expulsion will be immediate. However, a new, rather different item will be added to this first category: social benefit fraud. A small offense here will suffice to see, e.g., a British manager expelled for some sloppiness committed half-knowingly in declaring his eligibility to a children’s benefit. According to current Swiss legal practice, the offense will be judged minor only if the value in question doesn’t exceed 300 CHF, the equivalent of 217 British pounds. That’s next to nothing.
2) Even relatively minor offenses such as money forgery, libel or a combination of theft and damage will be enough to terminate an expatriate’s stay if that person has been convicted before – for whatever reason. You have once been brought to court in Switzerland and been punished for, let’s say, foolishly leaving your car more than 10 hours over-time in a parking lot? Well, one more offense from the second list and you’ll most likely be on your way back home where you belong. The SVP makes it very clear: “There is no pardon”.
