Panacea or pathetic fallacy? The Swiss ban on minarets.

Author:Langer, Lorenz
 
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ABSTRACT

On November 29, 2009, Swiss voters adopted a ballot initiative introducing a constitutional ban on the construction of minarets. This Article provides a thick description of the minaret vote's context. A legal analysis addresses the implications of the ban under national, regional, and international normative frameworks. The Article argues that the ban is irreconcilable with the Swiss constitutional bill of rights and several international human right provisions. In Switzerland, however, respect for the vox populi potentially trumps any concern over conflicting international obligations, and there is no effective judicial review of initiatives. This lack of judicial review is partly a result of the myth system of modern Switzerland and its emphasis on popular sovereignty. Yet, the fears that fueled the prohibition of minarets in Switzerland are widespread in Europe. Hostility to Islam is partly rooted in historical traditions and partly due to disagreement over how to integrate newcomers into Western society, and this Article suggests an approach that carefully balances expectations of Muslim adaptation with a less exclusive construction of European identity.

TABLE OF CONTENTS I. INTRODUCTION II. THE BALLOT INITIATIVE AGAINST MINARETS: ORIGINS, CAMPAIGN, AND OUTCOME III. THE NORMATIVE FRAMEWORK AND ITS IMPLEMENTATION A. National Norms: The Swiss Constitution 1. Freedom of Religion, Equality, and the Ban on Minarets 2. The Least Dangerous Branch: The Role of Swiss Courts in Implementing Constitutional Norms B. The Minaret Ban and the European Convention on Human Rights 1. Does the ECHR Protect the Construction of Minarets? 2. Implementing the ECHR 3. Withdrawing from the ECHR? C. The International Covenant on Civil and Political Rights 1. Wide Scope of Protection 2. ... But Weak Implementation Mechanisms IV. COMPETING VALUES: DEMOCRATIC PARTICIPATION AND THE RULE OF LAW A. A Comparative Perspective B. A Government of Men, and Not of Laws? C. A Band of Brothers True ... : The Swiss Myth System V. WHERETO FROM HERE FOR SWITZERLAND? VI. THE LARGER PICTURE: MUSLIMS IN EUROPE A. The Power of Numbers B. A Religion Calculated for Bloodshed? C. The Terms of Integration VII. CONCLUSION: BANNING MINARETS AS A PATHETIC FALLACY I. INTRODUCTION

And the Lord came down to see the city and the tower, which the children of men builded. And the Lord said, Behold, the people is one, and they have all one language; and this they begin to do; and now nothing will be restrained from them, which they have imagined to do.--Genesis 11:5-6

Why do we build towers? The first tower, if we are to believe the Old Testament, was constructed in the plane of Shinar, where the now numerous descendants of Noah decided to build a city and a tower. With the tower reaching unto heaven, they hoped to make themselves a name, lest they be scattered abroad upon the face of the earth. (1) Provoking the wrath of a God jealous and fearful of their ascending power, the builders of Babylon achieved the opposite: for their alleged hubris, they were dispersed, their speech confounded, and their name forgotten. (2)

The Babylonians have vanished, and Babylon is no more--even though the zikkurat of Babylon was, contrary to the biblical account, actually completed. (3) Yet people still build towers, spires, and skyscrapers, presumably for the same reason as the Babylonians: to provide a shared identity and lasting monument to their community. Towers also continue to be perceived as a symbol of budding ambition and power. They may arouse jealousy and resentment--not only of the divine sort, but of rivaling communities that fear the eclipse of their own identity and name.

These fears may help to explain why on November 29, 2009, Swiss voters passed a ballot initiative for a constitutional ban on the construction of minarets by a majority of 57.5 percent. (4) The vote was preceded by a campaign focusing on the alleged spread of political Islam in Switzerland, warning of the slow and subversive ascent of an alien Muslim community to prevalence and, eventually, dominance. A minaret ban, its proponents argued, would effectively protect the Swiss constitutional order, safeguard fundamental rights, and halt the spread of Sharia law. In short, it would offer a panacea to the ills of Islamization.

Prior to the vote, the Swiss government made it clear that it might be difficult to reconcile the ballot initiative with the country's constitutional bill of rights and with international human rights obligations. (5) The two chambers of Parliament recommended rejection of the ballot initiative by wide margins. (6) With the exceptions of the Swiss People's Party and the Confederate Democratic Union, which launched the initiative, (7) all political parties opposed the ban, as did the Protestant and Catholic Churches. (8) Opinion polls suggested that a comfortable, if narrowing, majority opposed the proposal. (9) Yet, unexpectedly, the voters adopted the ballot initiative by a considerable margin. Article 72 of the Federal Constitution (Bundesverfassung, BV), which addresses the federal and cantonal competences over organized religion, is now complemented by a third subparagraph reading that "the construction of minarets is prohibited." (10)

The Swiss minaret ban might well be dismissed as an oddity or curiosity, the outcome of a peculiar political system in an introspective country that still seems (or hopes) to stand isolated from the currents of history. (11) But the prohibition of new minarets is bound to have wider implications. In the short term, the ban raises a number of specific legal questions. For instance, after the implementation of the ban, the history of which is set out in Part II, the Swiss Constitution contains provisions guaranteeing equality and freedom of religion, as well as a provision that selectively restricts one religious community. These contradictions are the result of a constitutional system that attributes extraordinary influence to voters through ballot initiatives and referenda while severely limiting judicial review of popular decisions.

Part III discusses whether the minaret ban contravenes national, regional, or international legal provisions. Constitutional experts in Switzerland have assumed that the ban violates international human rights norms, (12) but a detailed analysis is still outstanding. This Article argues that the minaret ban is indeed irreconcilable with Switzerland's international obligations under the European Convention on Human Rights and the International Covenant on Civil and Political Rights.

Conflicts between national law and international obligations are not exclusive to Switzerland, but due to the significant participatory rights of Swiss voters in policymaking, the conflict between democratically legitimized norms on the national level and obligations on the international level is particularly acute. Does the minaret ban stand for the continuing prevalence and superior legitimacy of national norms and perhaps even provide an object" lesson on how to establish a democratic commonwealth? Direct (or, more precisely, semi-direct) democracy (13) is rarely seen as a danger; complaints are usually made about too little democratic participation, particularly within emerging supranational structures such as the European Union. (14) But should reverence for the vox populi be absolute? Should the majority always have its way, even at the expense of fundamental rights enshrined in constitutions and conventions? Or should votes not only be counted, but weighed as well?

Comparing ballot initiatives in Switzerland and the United States, Part IV asserts that the concept of unbridled popular sovereignty is the central tenet of a (relatively recent) Swiss national narrative. Yet I argue that the mythical veneration of direct democracy is based on historical misconceptions and overstates the level of actual popular participation, past or present. Based on these observations, Part V suggests that Switzerland's current constitutional framework for ballot initiatives requires some recalibration to ensure that the majority exercises its prerogative within the confines established by fundamental human rights provisions.

Constitutional reform might prevent a repeat of similar initiatives. It will not, however, remedy the underlying conditions of which the minaret vote was a symptom. The adoption of the ban confronts us with the question of how political communities, oscillating between prejudice and justified concerns, may react to a world where the clear cultural delineations of yore (if indeed they ever existed) have dissolved. (15) From a sociological viewpoint, the vote on minarets was not primarily motivated by concern for the Swiss constitutional order, and it certainly was not motivated by any real threat to that order posed by pointy turrets. It was a vote on integration and exclusion, and on the terms under which we are willing to welcome--a somewhat euphemistic term--the "other" in our midst.

Part VI, therefore, addresses controversies about the place of Islam and Muslims in Western societies, which is a question that is by no means exclusive to Switzerland. Due to the peculiarities of their political system, Swiss voters were able to express their views in an unmitigated and unfiltered way, but there is little doubt that in other European countries the outcome of a vote on minarets would be similar. (16) Part VI sets out how such hostile attitudes to Islam are partly rooted in historical traditions and partly influenced by discussions over how to integrate newcomers into Western society, and suggests an approach that carefully balances expectations of Muslim adaptation with a less exclusive construction of European identity.

Clearly, a society requires some consensus on what normative framework should be binding on everyone, and in this context, concerns over fundamentalist threats to a liberal constitutional...

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