Patrice Riemens on Wed, 2 Dec 2009 16:35:09 +0100 (CET)

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<nettime> On the Swiss referendum and law proposal against minarets

On the Swiss referendum and law proposal against minarets

Just like that of any other sovereign (*), the room for decision-making by
that particular Swiss one, namely the People itself, is not unlimited. It
is constrained by historical legacy, (f)actual context, and constitutional
precedent. The substantial majority of both the People and the cantons
(57,5% and 19 out of 23 respectively) that carried the last popular
(referendum) purporting to ban the erection of minarets will not remain
without aftermath, but it will in all likelihood remain without any legal
effect. With it, the Swiss people have expressed both a wish and a
malaise. A malaise cannot be remedied without attacking its causes, and a
desire cannot be realized without addressing and acting upon all its
consequences. As it now stands, the purported law cannot be embedded as a
simple amendment to the Swiss constitution, since it contradicts a fair
number of its fundamental clauses. To make it into actual law would entail
a wholesale rewrite of the federal constitution in a very illiberal sense,
as it would selectively restrict or even abolish liberties and rights that
are considered both essential and mandatory. This in its turn would
contravene a large number of international conventions and treaties to
which Switzerland is signatory. These would need to be rescinded,
effectively turning Switzerland into an outlaw and pariah state. It is not
very likely that such is the profound desire of the Swiss people, but if
so, the same People will need to be invited for a fresh, much more
far-reaching referendum, whose outcome, we may hope, would be very
different from last Sunday's.

Presently the Federal Council (government) has stated that "the wish of
the People will be respected". But the Federal Court of Justice will quash
the proposal, as it has done before with popular legislation that was
deemed to be at variance with the constitution. It would therefore, in my
opinion, be better to refrain from condemning the Swiss people at large
for venting to unpalatable sentiments while pressing for obnoxious
legislation, and concentrate instead on the underlying cause of which the
popular vote is but a symptom. Like in many countries in the global North,
a large swath of the electorate feels disenfranchised within what has been
classically called 'the crisis of representation'. In a context of ever
accelerating complexity and 'technologization' both of politics and of
everyday life, it sees itself as being left behind by an increasingly
self-conscious and self-righteous elite that has divested ('liberatied')
itself from its responsibilities towards the commons. And which is enabled
to do so without qualms of conscience (**) by that most marvelous of
mechanisms that necessitates neither consultation nor conspiracy: default
- the true motor of capitalism.

 We are surely heading for most interesting times - in Switzerland and
elsewhere. But stop blaming the common people for them.

(*) (Modern) Constitutional sovereignty can be basically located in three
places: the Monarch, Parliament, or the  People (aka the Nation). Absolute
monarchs have been on their way out for some time. England is an
near-undiluted example of parliamentary sovereignty ('an elected
dictatorship' is the usual quip), whereas France vests it in the somewhat
nebulous concept of 'the Nation'. Most countries have for all practical
purposes a kind of hybrid form, with one the components in a dominant 
role - parliament in India for instance - or sometimes none of them
clearly, as I have argued for the Netherlands.

(**) That does not make elites innocent as a result. Teun A. van Dijk has
substantially demonstrated in the case of racism that 'the general public'
talks and sometimes behaves in circumstances that have at large been
shaped by elites, buffeted through self-serving discourses that both
exonerates them of racism while fostering it in their actual practices of
governance. See his: Elite Discourse and Institutional Racism (2005-8):

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