In a recent referendum, a majority of the Swiss approved a ban on the construction of new minarets in their country. Now activist European European judges may tell Switzerland to lift the ban. The Swiss, however, might not be impressed.

On November 29, a 57.5% majority of the Swiss voters, approved a ban on the construction of new minarets in their country. The four existing minarets are allowed to remain, and the building of new mosques – Switzerland already has some 200 mosques – is also permitted, but the Swiss electorate does not want any new minarets towering over Swiss cities and villages.

The referendum result was not the answer the Swiss federal government in Bern wanted.

The government had actively campaigned for a “No” in the Ban-the-Minaret referendum. Foreign Minister Micheline Calmy-Rey said she was “shocked and disappointed” by the outcome. Turnout for the referendum was unusually high, with 53% of the electorate casting a vote and an overwhelming majority of 22 of Switzerland’s 26 cantons supporting the ban.

If Switzerland were part of the European Union (EU), the Swiss would no doubt be made to vote again until they give the answer their government wants. That is what some self-declared “democrats” are, indeed, proposing.
- “The Swiss will have to vote again,” Daniel Cohn-Bendit, the leader of the Green group in the EU Parliament told the Swiss newspaper Le Temps.
- “But the Swiss people have spoken…,” Le Temps objected.
- “So what?” Mr. Cohn-Bendit said.

Switzerland, however, is one of the few nations in Europe that is not a member of the EU. In fact, the Swiss have already rejected EU membership in five referendums. They are so attached to their sovereignty, which is predominantly local (municipal and cantonal), that they are loathe to transfer it to the federal authorities in Bern, let alone to supranational organizations even farther removed from their Alpine villages.

After the minaret referendum, the Swiss federal government declared that it would respect the outcome for the time being, but that international courts would probably overrule it. The construction of a minaret near a mosque building site in the village of Langenthal was halted. It looks like Langhenthal, a municipality in a rural district of the canton of Bern, with 14,000 inhabitants of whom about 130 are Muslims, will become the test case for the minaret ban. In 2006, the Langenthal Muslims submitted plans for a small mosque with a six-meter-high minaret. They have announced that they will go to court to have the ban overruled. “We will fight, if necessary before the Federal Court in Lausanne or in Strasbourg [the European Court for Human Rights (ECHR)],” says Mutalip Karaademi, the local imam.

On the eve of the referendum, the Swiss Justice Minister Eveline Widmer-Schlumpf had already warned that the ban on constructing minarets might constitute a violation of the freedom of religion as expressed in the Council of Europe’s Convention on Human Rights. Widmer-Schlumpf said that under international law Switzerland is bound by the Convention. However, that is not entirely correct. Unlike the EU countries, Switzerland is not bound by Strasbourg’s interpretation of the COE’s Human Rights Convention.

The Council of Europe (COE) is one of the few international organizations which Switzerland has joined. The Council has the same flag and anthem as the European Union (EU), which for many years was housed on the same premises in Strasbourg, but it is a different organization. Based in Strasbourg, the COE observes whether human rights are respected in Europe. Apart from Belarus, all the European nations – including Russia, the Caucasian states and Turkey – are COE members. While the EU has 27 member states (all of them also COE members), the COE has 47. The COE’s main institution is its court, the European Court of Human Rights.

The ECHR is renowned for its activist judges. There are 47 of them, one for each member state. They are appointed by the ruling political parties of the respective member states for a six-year period, which can be renewed. The Court tends to promote a very secularist agenda. It recently caused huge indignation in Italy by condemning the Italian practice of hanging crosses on the classroom walls in state schools. In other cases, the ECHR has allowed governments to restrict the wearing of religious clothing, such as headscarves. It has also upheld the Turkish ban on wearing headscarves in universities and the Turkish Constitutional Court’s dissolution of the Refah (Welfare) Party for violating the principle of secularism. The Court held that Islamic sharia law is incompatible with democracy and human rights.

The Swiss government and a number of Swiss legal experts say that the ECHR will most likely deem the minaret ban to be a violation of the human rights of Muslims. That is not certain. It is equally possible that the secularist ECHR upholds the ban on the building of new minarets, but with the same stroke also bans the building of new church towers. This might explain why the Vatican has spoken out against the Swiss minaret ban.

While the 27 EU member states are legally bound by the rulings of the ECHR (this is one of the provisions in the Treaty of Lisbon, which came into force in the EU on Dec. 1, 2009), the twenty COE members which are not EU members can refuse to comply. In a case of non-compliance, the other COE members can expel a state from the organization. That is what happened to Belarus in 1997.

Understandably, the Swiss government is not keen on the prospect of joining Belarus’ dictator Alexander Lukashenko as one of Europe’s “pariahs.” If the ECHR judges rule, however, that the Swiss ban violates human rights, the problem for the Swiss government has only begun. The Swiss Constitution states that the ban on minarets cannot be lifted unless the matter is put before the Swiss electorate in a new referendum. Switzerland’s largest party, the Swiss People’s Party (SVP/UDC), which supports the minaret ban, has said that if the ECHR rules against Switzerland, Bern should pull out of the European Human Rights Convention and, if necessary, accept to be thrown out of the COE. The SVP/UDC also announced it is willing to withdraw from the UN Covenant on Civil and Political Rights if the UN should use the Covenant as a pretext to condemn the Swiss minaret ban. The party also plans further steps against the spread of Islam. It wants legal measures against forced marriages and the genital mutilation of women, as well as a ban on segregated Muslim cemeteries, on the wearing of burkas in public and on special exemption from swimming lessons for Muslim pupils. The SVP/UDC says the outcome of the minaret ballot shows that Swiss voters do not want parallel societies and special rights for Muslims or any others.

An EU member state such as Italy, however, has no recourse against an ECHR ruling. The Italian government reacted with indignation against last November’s ECHR verdict that crosses should be removed from all classes in state schools. Several government parties announced that Rome would not comply with the ruling. A politician of the Lega Nord, one of governing parties, even proposed adding a cross to the Italian flag. Under the Lisbon Treaty, however, Italy has no option but to comply with the ECHR ruling – as do the 26 other EU member states. Perhaps the Italian government will argue that the ECHR ruling on the crosses dates from Nov. 3, 2009, and hence predates Dec. 1, 2009, when the Lisbon Treaty came into force. That argument is, however, invalid. The Lisbon Treaty has reduced the EU member states to de facto provinces of the EU, which has become a federal state in its own right. There is little doubt that when countries sign their sovereignty away, this applies not only to their present and future, but also to their past freedoms. Spain, another EU state which traditionally has crosses in its class rooms, announced on Dec. 2 that it has started removing its crosses.

Meanwhile, the support of the Swiss electorate for a minaret ban, despite the opposition of the government and almost the entire political, economic, cultural and religious establishment, is seen all over Europe as a clear indication that ordinary people resent the islamization of Europe and the growing visibility of the Muslim presence. Last year, Micheline Calmy-Rey, Switzerland’s foreign minister who said she was so “shocked and disappointed” by the referendum outcome, shocked and disappointed many of her compatriots by her attire when she visited Teheran to conclude a deal to purchase cheap Iranian gas. The minister went fully veiled, wearing a white hijab. Many Swiss, especially women, protested when their Foreign Minister dressed up like a mummy to meet Iranian President Ahmadinejad.

Apart from right-wing parties who care about national identity, such as the SVP/UDC, the referendum proposal to ban minarets received an overwhelming support of Switzerland’s women. The female vote tipped the balance in favor of the ban. Even women from the left, such as Julia Onken, a prominent Swiss feminist, called for the ban, arguing that “the building of minarets is a visible signal of the state’s acceptance of the oppression of women.” For Ms. Onken “minarets are male power symbols.”

Polls indicate that the electorates in several other European countries agree with the Swiss. A survey in France indicated that 46% of the French favor a ban on minarets, 40% oppose a ban and 14% declined to give their opinion. The same survey revealed that 41% of the French advocate a ban on new mosques – a substantial rise since 2001 when only 21% opposed mosque building. Italy’s Interior Minister Roberto Maroni is convinced that a referendum to ban minarets “would be approved by an even wider margin in Italy than in Switzerland.” The German mass circulation newspaper Bild wrote that Germans would vote the same way if they were allowed a referendum on minarets. The Stuttgarter Zeitung agreed and the Austrian Kurier wrote that the electorate in Austria would also vote similarly.

Even the COE seems to be aware of this. At the recent COE conference What future for Human Rights and Democracy?, held in Paris on Sept. 11, 2009, Catherine Lalumière, the former COE Secretary-General, said: “There really is a problem at the level of the mass of the population. Ordinary citizens do not really support human rights. It is there that we need to go on the attack.”

Indeed, the ordinary people do not share the illusions of many European politicians, church leaders and intellectuals about the blessings of the multicultural society. It is no coincidence that Switzerland is the first place where this fissure emerges, between what the establishment wants and what the ordinary citizens feel and want. Switzerland has a constitutional system which through popular initiatives and referendums allows citizens a direct say over their own destiny.

When democratic procedures make it difficult for the political establishment to impose its own designs on the people, the courts are called to the rescue. “We must find how we can prevent people from launching initiatives that directly violate internationally guaranteed human rights,” urges Andreas Auer, a professor of constitutional law at Zurich University. Prof. Auer wants judges to be the supreme authority. “It must end up in a court,” he says. “Human rights questions are delicate questions.”

For the time being, however, Switzerland remains one of the few European countries where the people are still sovereign. While in the EU countries, as in the US, it is for judges to decide whether the right to build a minaret is an “internationally guaranteed human right,” in Switzerland the supreme authority are the people, not the courts.

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