1An “umbrella” term [1] with many meanings, “judicialisation” refers to a number of very different realities, which are “largely autonomous with respect to each other”. [2] Variously described as legislative and regulatory inflation entailing the increased involvement of courts and jurists in societal regulation, [3] an extension of administrative law, [4] the criminalisation of politics, [5] the internationalisation of the law, [6] the rise of transitional justice [7] and constitutional jurisdiction, [8] or the judicial activism of social protest movements, [9] judicialisation is said to signal the emergence of a new regime of political regulation. [10] Ran Hirschl has identified three facets of this phenomenon: first, an earlier perspective that refers to the law’s ever-growing regulation of social relations; second, a more recent facet concerning the mounting influence of the courts on public policy outcomes; and third, the emerging involvement of the courts in the treatment of fundamental political questions. This latter dimension can be “intuitively” differentiated from the previous one on the basis of a “qualitative evaluation” that leads to the conclusion that a “juristocracy” is emerging. [11] For the most part, however, studies on judicialisation have stemmed from a generally shared [12] – though occasionally debated [13] – notion that power is being transferred from the political arena to the judicial arena: the question remaining, therefore, is if this shift is the result of judges appropriating certain prerogatives or, on the contrary, if this constitutes agreed divestment by political bodies, sometimes in order to instrumentalise the judiciary. In either case, however, the majority of studies examine the role (or function) of jurisdictions with regard to public policy development and content. This role is alternately praised for embodying the rule of law or criticised for illustrating how democracy has been seized by “the power of the judges”. [14]

For a relational and process-based approach to judicialisation

2Beyond the – undoubtedly legitimate – normative dimension of such a line of enquiry, we must nonetheless point out its blind spot: the hypothesis that issues that were “normally” the purview of political authorities in the past are now being transferred to the judicial arena has led to a focus on judicial activities and rulings in isolation. And yet, to follow in the footsteps of Alec Stone Sweet, it would be more appropriate to view judicialisation from a relational perspective, examining the effects caused in the parliamentary sphere by the involvement of judicial bodies in political controversies (viewed in terms of politicisation). Stone Sweet’s analytical model [15] is bi-directional and emphasises the overlap between politics and the judiciary: since judges “coproduce” the law alongside parliamentarians, the latter in turn behave somewhat like judges. [16] The reception and even anticipation of legal verdicts in the parliamentary arena thus prompts the judicialisation of political arguments, consequently strengthening the role of the judicial sphere in political exchanges. This perspective is less interested in the “role” of judges than in the effects of their intervention on political exchanges: “Under certain conditions, politicization [of constitutional justice] produces judicialization [of law-making]; we do not expect to find one without the other.” [17] Although Stone Sweet stipulates that the degree of judicialisation varies depending on institutional context, how judges wield their power, and the types of public policies involved – which this article will confirm – it remains the case that the intervention of judges, whether real or virtual, at a given moment of a political process, contributes to the juridification [18] of how political issues are categorised and perceived.

3As Bastien François has observed, this analytical model dismisses any hypothesis that a priori concerns the behaviour of actors. [19] Breaking with the traditional (and positivist) notion of the separation of powers, François rejects any kind of substantialism: it is less important to determine whether judges make “political” decisions couched in “legal” arguments or whether certain issues are “purely political”, [20] than it is to objectively identify the effects associated with the autonomy of the highly specialised realms in which both legal and political professionals operate, in order to ascertain the power of the legal repertoire in the political sphere. [21] Yet, Alec Stone Sweet remains excessively focused on polity. On the one hand, as we shall show regarding the controversy that arose in Switzerland in 2007 when a popular initiative sought to ban the construction of minarets, this model does not take into account other actors involved in the process, such as public law experts, journalists, citizen associations, etc., which nonetheless help to define its legal substance as soon as, willingly or unwillingly, such actors must have recourse to the language of the law. In other words, judicialisation should be analysed less in terms of the “transfer” of power from one sphere to another than as an effect of the social differentiation and extension of interdependencies between public action actors who are inclined to mobilise the legal repertoire and have recourse to the judicial arena. [22]

4Furthermore, Alec Stone Sweet’s model does not sufficiently take into account the resistance to the influence of judges; the process analysed here is thus a rather new manifestation of this phenomenon. By questioning the respect of fundamental rights and, as a result, the position of national (Federal Supreme Court) and international (European Court of Human Rights, ECHR) judges, the popular initiative was a means to determine who had the final (legal) say in the public regulation of religious affairs. The movement was started to counteract the Federal Supreme Court’s decision to allow the construction of a minaret. For its supporters, introducing a general ban on minaret construction into the Constitution was designed to cancel out this legal ruling, thus muzzling the Federal Supreme Court and politicising any potential intervention by the ECHR, by re-examining the issue of the content, scope and limits of religious freedom as guaranteed by the Federal Constitution (under Article 15), the European Convention on Human Rights (under Article 9), and other international treaties.

5The institutional configuration – here defined as the set of rules governing politics – amidst which this controversy unfolded nevertheless possessed a certain number of characteristics that also conditioned the dynamics of the affair. First of all, direct democracy plays a central role in political exchanges in Switzerland. [23] Popular initiatives, viewed as almost sacred mechanisms, authorise and legitimise a number of different uses: challenging certain rulings handed down by parliamentary or judicial authorities, prompting public debate, influencing symbolic power relations, and orienting the public agenda. Second, the role of the courts in Switzerland is ambivalent. Similar to the American model of judicial review, Swiss constitutional jurisdiction is complex, simultaneously circumscribed and highly developed. [24] Acting as the highest court in the land, the Federal Supreme Court of Switzerland [FSC] must apply all federal laws, which are immune to constitutional review but whose conformity with international human rights law the FSC must establish, according to the body of case law which it has progressively established. Moreover, the Federal Supreme Court exercises significant constitutional control over cantonal law (with the exception of the cantons’ Constitutions, which are subject to guarantee procedures before the federal parliament), as well as over the regulatory texts enacted by the government (the Federal Council). The Supreme Court does not have jurisdiction to confirm the validity of popular initiatives, in particular their compliance with international law. This is the prerogative of Switzerland’s federal parliament which, among other conditions, must verify that initiatives do not violate the “binding” norms of international law (jus cogens), which in principle excludes the Federal Supreme Court from ruling on the compliance with international law of a constitutional provision adopted by popular vote, in particular with the European Convention on Human Rights (hereafter, the Convention). This is the precise question at the heart of the controversy provoked by the minaret construction initiative. Third, the federal structure of the Swiss state grants wide-ranging powers to its cantons, in particular with regard to religious matters, whose regulation operates according to a polycentric model similar to that implemented in Germany. [25] The Federal Constitution in fact stipulates that relations between church and state (Article 72) are the purview of the cantons, whose duty it is to adopt the measures necessary to maintain peace between the members of diverse religious communities. Consequently, the regulation of religious communities displays relatively significant diversity, with the conditions and requirements for recognition, relationship to the state, funding, ecclesiastical tax liability, and legal status of religious communities varying from one canton to the next. [26]

6These three characteristics work together: to the extent that it influences cantonal legislation, the federal court’s case law concerning the respect for religious freedom is abundant and allowed, from the end of the nineteenth century, for its multiple dimensions to be defined. [27] In this respect, we should highlight the significant delegation of this matter – a particularly delicate one in Switzerland – to the Swiss judiciary. Granting the Federal Supreme Court wide jurisdiction over this matter was preferred to uniform federal legislation, whose elaboration would likely have been politically unpredictable. Moreover, direct democracy also plays a significant role here, both at the national and various cantonal levels. [28] Consequently, the addition to Article 72 of the Federal Constitution of a paragraph prohibiting the construction of minarets holds symbolic weight, as underscored by public law experts, who, at the beginning of the 1990s, could still celebrate the easing of interfaith conflicts. [29] Illustrating just how quickly circumstances can change, the latest edition of a constitutional law text now indicates the fragility of the religious peace achieved. [30]

7Drawing on a number of different sources, [31] we shall present a relational and process-based analysis of a controversy whose outcome as yet remains uncertain, by paying specific attention to the expectations harboured by actors regarding possible judicial intervention. The minaret conflict spans several different domains (the political, judicial, religious and media spheres) and several levels (the municipal, cantonal and federal levels), as a result of the different rulings invoked by plaintiffs (the right to construction, “religious peace”, fundamental rights, jurisdiction of parliament and the courts, right of initiative, etc.), ultimately leading to interwoven and overlapping arguments. With its initiative, the Union démocratique du centre (UDC – Centre Democratic Union) [32] pitted direct democracy (“the people” and not just their “representatives”) against fundamental rights, and pressured the other political parties by playing with rules that, as we shall see below, excluded the courts from the game (at least temporarily), while placing severe political constraints on parliament. By opposing these two fundamental registers of the legitimacy of liberal democracies, the minaret construction controversy carries a strong normative connotation – a dimension that largely structures research on political judicialisation – for which we hope to account by identifying the practical configurations within which actors were working. By reviewing the sequences at the start of this process – its actors, mobilisations, arenas, and defining moments – we shall better be able to understand the motivations and obstacles involved, the resistance encountered, and the alternatives to the judicialisation of public religious regulation; a political issue which, as elsewhere in Europe (though assuming a particular shape in Switzerland), has an impact on the law and thus on the prerogatives of the various actors required to produce, interpret and apply the law.

The popular initiative as an alternative to judicialisation

8The process that resulted in a ban on minaret construction originated in a series of local controversies, the legal arena being only one of the multiple domains involved. In January 2005, the authorisation request for a minaret project by an association of Turkish residents in the small town of Wangen (in Solothurn canton) came up against a petition (381 signatures collected by a UDC activist) and a rejection from the community’s construction committee. When the association appealed this decision was annulled in July 2006 by the cantonal administration, then by Solothurn’s administrative court, and finally by the federal court, the latter ruling on the grounds of the rules of procedure for construction law, without addressing the edifice’s religious dimension. [33] Widely publicised by the media, [34] this very technical verdict was subject to a highly politicised interpretation, in which the only conclusion publicly retained was that construction authorisation had been given.

9Combining politicisation, judicialisation and media coverage, the “Wangen controversy” was not an isolated affair: anti-minaret committees emerged in other cantons (Valais, Bern, St. Gallen, Zurich). These collective actions were much more than expressions of NIMBY neighbourhood relations, and they resonated with the broader public as a result of real political efforts to frame a public problem [35] undertaken by officials from the UDC, town councillors, judges, jurists, journalists, clergy, and intellectuals – some lamenting the “ideologisation of construction law”, others alarmed at “rampant Islamisation”. As in many other European states, the context was also influenced by local controversies regarding headscarves, requests for exemption from physical education classes, time slots for public swimming pools, and reserved areas in cemeteries; issues that likewise wound up before the courts and divided jurists, as attested to by the growing role played by the Federal Supreme Court and the volume of public law texts on the subject. [36]

10At the end of 2006, as attempts to ban minarets had either been defeated or were about to be, anti-minaret advocates began to view the federal initiative as a potential solution to circumvent cantonal political, administrative and judicial bodies, and to open up the legal dispute. This was a particularly appealing option as popular initiatives and referenda have been part of the UDC’s action repertoire since 1990. The UDC’s “Zurich wing”, a new and increasingly radicalised element, used them to change the party’s internal power relations, to the detriment of its historical “agrarian” element; the latter was more firmly anchored in the Bern chapter. The methods imported from the economic sector by the Zurich wing’s leaders – several of whom are billionaires – helped to redefine the rules of the political game and made extensive use of marketing, unprecedented verbal violence, and significant financial resources. This unique ability to raise funds considerably increased the volume of resources needed to win elections and referenda, thus contributing to the nationalisation and professionalisation of politics. This was an effort to rationalise a partisan endeavour seeking to conquer “public opinion” such that “the people” could be pitted against “the establishment”, which was accused of limiting the scope of citizens’ rights as a result of its increasing recourse to international human rights law. The initiative “For democratic naturalisations” was moreover explicitly designed to pose an obstacle to two rulings handed down by the Federal Supreme Court. [37] More generally, the minaret controversy revealed the UDC’s hostility towards the judiciary, both federal and international, its sovereignist leaders multiplying attacks on the judicial system, “left-wing” jurists, and foreign judges. Christoph Blocher, [38] the minister of justice between 2003 and 2007, as well as the leader of the UDC and the president of the Association pour une Suisse indépendente et neutre (ASIN – Campaign for an Independent and Neutral Switzerland), had several times publicly criticised the decisions of the Federal Supreme Court with regard to immigration and asylum matters.

Between politics and the law: Parliament’s “legal function” in practice

16From the moment it was launched, the initiative provoked numerous debates in the media and the field of public law, especially regarding its compliance with international law and the Federal Assembly’s ability to invalidate it. [42] According to the Federal Constitution (Article 139, paragraph 2), it falls to the Parliament (on the government’s proposal), and not to the Federal Supreme Court, to declare initiatives invalid which, among other formal reasons, are seen as contrary to the binding rules of international law, and then to adopt a position in the guise of a voting recommendation. In fact, cases of invalid initiatives are rare, since it is very costly for parliamentarians to limit the exercise of direct democracy. Only one precedent concerning binding international law can be found. In 1996, Parliament had ruled that the strict application of the (far right-wing) Swiss Democrats’ initiative “For a reasonable asylum policy” would have led the authorities to deport, without appeal, illegal immigrants back to countries that practised torture. Such as it was interpreted by the federal authorities, [43] this concept of binding international law – or jus cogens – encompassed a very small number of laws (the core of international humanitarian law, the prohibition of genocide, torture and slavery), but not the fundamental rights recognised by the European Convention on Human Rights. In recent years, other popular initiatives have posed questions regarding their compliance with international law, [44] provoking a number of responses from public law experts. [45]

17These different elements influenced parliamentary debates. Made public on 27 August 2008, the Federal Council’s Message [46] presented a highly detailed legal analysis of the text of the initiative, using case law and doctrine to support it. Ultimately, the Council asked the Federal Chambers to send the initiative to a popular referendum, and recommend its rejection. Reasserting its restrictive interpretation of jus cogens, the government deemed that the conditions allowing the initiative to be null and void were not met, despite the violation of several international treaties. The appeal to respect case law established by Parliament, though mentioned in several previous messages, remained fragile, as such case law was really only based on a single precedent; this appeal was no doubt less a manifestation of legalism than the pragmatic expression of a kind of realism imposed by the situation. Speculating that the initiative would be rejected and careful to avoid a clash with the main national political force over the taboo represented by the institutions of direct democracy, the government adopted a highly legalistic stance, imbued with the distance and neutrality typical of legal discourse. The overlap between legal and political arguments and registers was a key trait of the parliamentary debates. [47]

18On the one hand, two parties (the Christian Democratic Party and the Free Democratic Party) supported the government’s position, and thus its underlying political realism, out of respect for the Constitution and direct democracy. In dubio pro populo: this expression coined by the Christian Democrat Urs Schwaller encapsulated this confidence in the people and political institutions of Switzerland. On the other hand, the Socialist and Green Parties, advocates for invalidating the initiative, sought to alter jurisprudence whilst still positioning themselves within the realm of the law. According to these parties, fundamental rights must be included in the provisions of binding international law, as Andreas Gross (Socialist Party) declared when urging Parliament “to take its role as constitutional judge seriously” and thus to not “only think in political terms”. Gross, a member of the National Council and representative for Switzerland at the Council of Europe, who generally maintained a “participation-based” position, called for the initiative’s annulment. Citing the doctrine produced by constitutionalists, he then condemned the government’s “political opportunism”. Ada Mara, also a Socialist, expressed similar sentiments: the Federal Council was accused of seeking to validate the initiative “for highly debatable political reasons”, whereas it would be appropriate to redefine the “mythical jus cogens” that was a constant source of conflict among judges and politicians. In conclusion:

19

“In Switzerland, the body that can adjudicate the validity of an initiative, the body that plays the role of a constitutional court in other European countries, that’s us, that’s Parliament. It is perhaps time […] to act politically and to invalidate initiatives that violate these fundamental rights…”

20The Green senator Luc Recordon reiterated this argument at the Council of States: “Our constitutional order is so designed that Parliament must assume its role and judge the constitutionality of a popular initiative” – a delicate question legally, which would mean moving away from a “narrow” interpretation of jus cogens.

21On the flipside, the supporters of the initiative – all UDC representatives – framed the issue very differently as the Islamisation of Switzerland, and were thus more reluctant to engage with the law. This, for example, is how one of the Zurich-based leaders of the UDC, Hans Fehr, expressed it:

22

“You can repeat it a hundred times, this initiative violates neither religious freedom nor fundamental rights. When you, Mr. Gross, as a theoretician of constitutional law, constantly praise the European Convention on Human Rights, international law, the law of nations, allegedly binding international law […] and truly binding citizens’ rights, you should not overlook Switzerland’s national law, which, for a true democrat, should be supreme – though subject to binding international law, which is violated God only knows how by this initiative. In fact, neither religious freedom nor fundamental rights are threatened, but this initiative is a strong sign against the rampant Islamisation occurring in our country. You can try to deny it over and over again, there are plenty of examples to prove you wrong. I freely admit that this initiative does not solve everything, but minarets are clearly a symbol of a rise in Islamic power; they represent the bayonets of militant Islam against the infidels.” [48]

23UDC representatives spoke out against the left’s attempts to keep the initiative from being debated. Felix Müri asked: “What are you afraid of? Keep the discussion going in the electoral campaign!” This call for a democratic vote was reiterated by Ulrich Schlüer, one of the initiative’s leaders:

24

“Clearly, some people have a problem with democracy. They make reference to all sorts of principles […] Could it be because you’re afraid that citizens will be able to question you regarding what’s behind your noble principles? But you’re right to be afraid, given the problems that this initiative for a ban on minarets poses, problems that concern respecting existing laws in Switzerland.” [49]

25In the end, the “realist” position won by joining forces with the UDC, against advocates for invalidation (128 votes against 53 in the National Council; 24 votes against 16 in the Council of States). Conversely, however, once the initiative was validated, the two houses recommended rejection to the electorate; this time, UDC representatives were in the minority (132 votes against 51 in the National Council and 39 against 3 in the Council of States). Paradoxically, the arguments wielded oscillated between the political and legal dimensions of the decision. Sometimes the law would be interpreted as ordering political bodies to validate the initiative, and at other times to nullify it, but always under the guise of exercising a “judicial function”; one camp always viewing the position adopted by the opposition “in the name of the law” as a political stance, and vice versa. In fact, on the one hand the government and a fraction of parliamentarians, though hostile to the initiative, made reference to respect for the rules of law in order to limit the leeway that Parliament could de facto use to declare the text null and void. On the other hand, those advocating for the initiative’s invalidation urged parliamentarians to exploit the room for interpretation that they possessed de jure in that regard. As for the supporters of the initiative, they were not unduly worried by such legal constraints, which they viewed as negligible since they went against the popular will. In all cases, the parliamentarians’ relationship with institutions and the law was largely conditioned by their perception of political power relations.

Campaigning: polarising the issue

26A number of different positions could be observed during the campaign leading up to the referendum, but the main interpretative frameworks, centred on an “identitybased” argument, varied little. Although the initiative’s founders remained isolated – since the government, Parliament, and most of the parties, trades unions and special interest groups called for the initiative’s rejection – on the other hand, their level of engagement far outstripped that of their feebly mobilised opponents. They continually framed the issue in binary terms, pitting the people against the elites, and attacked the positions adopted by the federal councillors who, during official visits in Muslim countries, took care to remain diplomatic, repeating that the initiative did not stem from the government itself and offering reassurances that it was unlikely to succeed.

27On paper, the “no” camp brought together the vast majority of all the parties, an impression that we must nevertheless further nuance. The Socialist Party and the Greens were firmly opposed to the initiative, but they focused mainly on the parliamentary debate. Due to a lack of sufficient resources and mobilisation, they went largely unheard during the campaign. While the majority of the radicals decided to oppose the initiative, albeit in a fairly discreet manner, they were also scattered across two different, emerging camps. As for the Christian Democrats, they firmly condemned the initiative in a press release (as “anti-constitutional, dangerous and stupid”), but seemed torn, certain cantonal chapters revealing particularly strong cleavages (the Glarus chapter, for example, supported the “yes” camp). Special interest groups, which are sometimes very present during campaigns, here held back. The main group, Economiesuisse, an employers’ umbrella organisation, merely made a few announcements in the press, highlighting the risks to export businesses associated with the initiative’s potential victory. With the exception of the Union suisse des paysans (Swiss Farmers’ Union), which had long rallied around the UDC, and which left its supporters “free to vote” however they liked, all of the major socio-professional organisations and all of the large faith-based groups declared their support for the “no” vote. Here again, without sufficient mobilisation to back them up, these declarations were mere rhetoric.

28Although they were frequently contacted by the media, spokespersons from Muslim associations and the 300 odd local groups representing the 350,000 Muslims in Switzerland (4% of the total population, 15% to 20% of whom were said to be practising) were hardly visible during the campaign. Lacking in financial resources, maintaining a distant relationship to politics, unfamiliar with the institutions of direct democracy, not yet fluent in one of the national languages, and coming from states with vastly dissimilar cultural traditions (from ex-Yugoslavia, whence half of Switzerland’s Muslims originate, to North African states), these representatives spanned the range from secular to fundamentalist Islam, [50] were highly divided, and had to settle for individual interventions in the media and small-scope collective action. The most notable of these actions was an open house day at mosques, which took place on a Saturday four weeks before the referendum. These groups could of course count on the support of the Commission fédérale contre le racisme (Federal Committee Against Racism), of intellectuals (theologians, Islamic studies specialists, writers, jurists and sociologists), NGOs (including Amnesty International), and the spokespersons for the main religious groups (Protestant, Catholic and Jewish), in particular those who, since 2006, make up the Conseil suisse des religions (CSR – Swiss Council of Religions). Subject to intense media coverage, the “Muslim community” – an expression that overlooks the vast diversity contained therein – was spoken about more than it spoke out.

For or against minarets: the controversy gains hold

29The polarisation of public opinion regarding minaret construction was confirmed as thousands of individuals otherwise not associated with the initiative’s leaders began to appropriate the cause for their own ends. As more and more people adopted a position, the controversy gave the performative impression of “taking hold”, [51] which in turn produced constraining effects urging actors, especially political representatives, to take a stance among the very limited range of available options, which were in turn extremely simplified by the initiative. Actors could only choose to say “yes” or “no” to a ban on minaret construction, and consequently fuel the growing polarisation. At the beginning of the campaign, at the end of September 2009, attention was focused on the posters put up by the initiative’s supporters; for over ten years, the supporters of popular initiatives had been using this traditional medium to deliberately provoke. [52] Using images designed to shock, the posters strove to gain media visibility and frame the debate, attempting to shift the limits of what was legitimate and what could be said. This time, the “litigious” poster in question showed a woman in a burqa, with, in the background, seven minarets (which many people misconstrued as missiles) piercing the Swiss flag – an image which, immediately after being posted, prompted many news articles and commentary.

30From this point on, the initiative’s leaders could stand back and let the controversy take off, while remaining at the centre of the debate. Newspaper publishers, the directors of billposting companies and the national railway company, town councillors, intellectuals, and federal councillors publicly questioned whether the poster should be authorised or not. Some cities banned it, some banned it only on public roads, while others allowed it outright, especially in German-speaking regions of the country. Often reprinted in print media, “the infamous poster” engendered a feedback loop that guaranteed free publicity. [53]

31At the same time, by their own admission, the opponents to this initiative led a very discreet campaign. [54] They used almost no posters and, most importantly, did not present a united front, [55] apart from a joint appeal by the leaders of the PDC, PRD, PS, PDB and the Greens to reject the initiative, ten days before the referendum. The president of the PS organised this announcement at the last minute, probably due to a lack of faith in the reliability of opinion polls. [56] Since their projections seemed to match up, journalists convinced themselves that a “yes” victory was impossible; an editorial writer for L’Hebdo went so far as to talk about “a broad consensus on the initiative’s rejection”. [57] Another position that seemed to stem from this sort of collective autosuggestion was adopted by the editor-in-chief of 24 Heures, who tried to appear reassuring and build consensus, drawing on the institutional discourse of Swiss exceptionalism (Sonderfall):

32

“The results from our exclusive nation-wide poll show once again the extraordinary calm of a Swiss population highly invested in religious neutrality and respect for minorities, as well as concerned with harmonious integration.” [58]

33These projections generally curbed the worrying impression that opponents to the initiative had that the highly polarised campaign was dominated by initiative leaders, and thus served to reduce cognitive dissonance. In autosuggestion mode, commentators latched on to the Sonderfall perspective, in part because they had been socialised to believe in the wisdom of the Swiss people. The last poll, which offered stable projections, was commented on three days before the vote by the head of the Department of Foreign Affairs, Micheline Calmy-Rey (PS) on the front page of a major newspaper:

34

“53% saying no, this shows that the Swiss population is mature and responsible […] I would be proud of my country if the ‘nos’ win out. I was happy that this debate took place. It’s the beauty of our system. The issue feeds on something irrational inside all of us. When we don’t know the Other, we’re afraid of them. And these fears and worries that UDC plays on, they have to get expressed somehow. […] This kind of vote allows for public opinion to form. It also has an identity-based function.” [59]

35When the results were announced on Sunday 29 November 2009, they stunned both opponents and proponents of the initiative, and even a large number of those who had abstained. The initiative was supported by 57.5% of voters and had a majority in 22 out of 26 cantons; the participation rate (52.7%) was relatively high. Thus, in the immediate aftermath, various disconcerted commentators were forced to explain the result, which outraged or galvanised so many people. Some tried to appropriate the result, like the president of the PDC, Christophe Darbellay, who stated that the people had been heard and used this to move onto the “question of the burqa”. Surprised by their victory (some admitted that they would have been happy with winning only 45% of the vote), initiative leaders adapted to the circumstances and began to overplay their “populist” beliefs. More than ever, Oskar Freysinger was front and centre in the media and asked for his opinion by many different media outlets, including international ones. He adopted a form of heroic self-presentation as the “sole defender” of the cause. [60] As for the secretary-general of the UDC, he warned:

36

“Instead of simply accepting the people’s decision, the threat of international law is bandied about. People dare to suggest that the final say doesn’t belong to the people, but to the Federal Supreme Court, even to the European Court of Justice […]. If the courts were presumptuous enough to overturn the popular decision by referring to the European Convention on Human Rights or the United Nations International Convention on Civil and Political Rights, Switzerland would have no choice but to abrogate the treaties involved.” [61]

37In editorial offices, everyone was stunned and the most common interpretation of the results was that they stemmed from fear, irrationality, and the “resurgence of repressed instincts”. A handful of article titles that appeared in the French-language press on 30 November illustrate the tone: “Un vote, la peur au ventre” (“A vote cast out of fear”, Le Temps); “La révélation des peurs inavouées” (“Revealing unacknowledged fears”, La Liberté); “La victoire de la peur” (“The victory of fear”, Le Matin); “Affrontons les peurs” (“Let’s face our fears”, Le Matin); “La peur de l’autre l’a emporté” (“The fear of the other won out”, L’Impartial); “L’autogoal de la peur” (“The own goal of fear”, Journal du Jura). For the political leaders and journalists who had taken a stand against the initiative, it thus became difficult to resist adopting the framework proposed by the movement’s leaders. The minister Éveline Widmer-Schlumpf was thus asked: “How can you explain the gap between the political elites and the rest of the population?” [62] The “divide between the people and the elite” dominated most of the media’s narratives, whether these concerned laying the blame at the doors of the polling institutes, or stories on the “ordinary folks” who voted “yes”. From this chorus of reactions emerged the question of the initiative’s legitimacy, a definition of the situation that opened up debate on the legal, and possibly judicial, framing of the “passions” engendered by citizens’ rights.

The popular initiative, fundamental rights and the “power of judges”

38Are “the people” always right? Should the use of citizens’ rights be “monitored”? Lawsuits for “violation of the right to vote” were immediately filed, and rapidly rejected, by the Federal Supreme Court, on the grounds that “no legal channel exists against the content of a federal initiative accepted by the people and the cantons”. [63] Public law experts nevertheless pointed to the possibility that the Federal Court might be appealed to in the future, once a concrete prohibition ruling occurred, but they were divided on the outcome of such a measure of recourse, as the Federal Constitution did not clearly establish the jurisdiction of the Supreme Court with regard to the compliance of one of its provisions with international law. The possibility of an immediate referral to the ECHR likewise divided public law experts. Some believed that the ECHR could immediately proceed with an appeal, on the grounds that the provision discriminated against a very defined and limited subset of the population. Others were more sceptical, arguing that the Court would only rule, like the Federal Supreme Court before it, on the concrete application of the litigious measure. In this scenario, several minority opinions were expressed, stating that the ECHR might decide, in a few years’ time, that the Swiss ban on minaret construction was justified for reasons of “public order” – as it had done in France regarding wearing headscarves in school, and in Turkey regarding wearing headscarves at university. In general, however, jurists were almost unanimous in predicting Switzerland’s condemnation and the ensuing requirement that the Federal Supreme Court issue a ruling complying with the ECHR’s decision, which would de facto nullify the initiative. When asked for his opinion, the French president of the ECHR Jean-Paul Costa admitted his discomfort in a situation with no precedent, where the Court would be shouldering a huge responsibility in ruling on a popular referendum. [64] Ultimately, the ECHR received two appeals on 16 December 2009: one from Switzerland’s League of Muslims, the Geneva Muslim Community, the Neuchâtel Muslim Cultural Association and the Geneva Muslim Association; the other from Hafid Ouardiri, former spokesperson for the Geneva mosque. The government refused to consider the matter and additionally stated that the constitutional amendment violated neither religious freedom nor the principle of non-discrimination, arguing that “one cannot assume that the Swiss people wished to violate the religious freedom of Muslims or discriminate against them”. [65] The media highlighted this rhetorical “pirouette” with regard to the positions expressed beforehand by the Federal Council. Eighteen months later, however, the ECHR declared the cases inadmissible, amounting in its opinion to “class action lawsuits” seeking to control a constitutional provision in abstracto. It added that the plaintiffs could not be considered victims, even potentially, so long as there was no application of the controversial provision that the Swiss authorities should first concretely examine. [66]