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  #81  
Old 02.11.2018, 20:52
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Re: SVP self-determination initiative

Ok, so the Federal Assembly shall enact provisions that establish binding legal rules in the form of federal acts or ordinances.

The Federal Assembly is comprised of the democratically elected National Council (National Parliament) and Council of States.

So what are these 'provisions'? Where do they comes from? Are they created through Initiatives and Referendums?

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- The initiative was considered invalid before a popular vote was held.
- The initiative was not a federal but a cantonal one.
Yes and yes.

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- It was declared invalid by the canton Valais parliament not the federal court.
Yes to the first part, but no to the second, at least according to what I read here: https://www.swissinfo.ch/eng/high-co...valid/44381198

The Federal Court says that an initiative by the conservative right Swiss People’s Party to ban head coverings in schools in the southern canton of Valais is invalid. It confirms the decision taken by the Valais parliament.

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- The parliament declared it invalid because it would be against federal law.
Seems plausible.

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- Federal law and the Swiss constitution trumps cantonal law. Art. 46 of the Constitution https://www.admin.ch/opc/en/classifi...index.html#a46 and cantonal constitutions may not be against the Federal one. Art. 51 https://www.admin.ch/opc/en/classifi...index.html#a51
Right.

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The federal court decision BGE 1C_76/2018 was more about what the canton Valais parliament can decide and if it overstepped its authority or did not follow canton Valais law by declaring the cantonal initiative as invalid. It did not.
So it's safe to say that initiatives on a cantonal level are subject to being in line with the Federal Constitution.

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See Art. 139 https://www.admin.ch/opc/de/classifi...ndex.html#a139 of the Constitution what they are.
Art. 139/3
If the initiative fails to comply with the requirements of consistency of form, and of subject matter, or if it infringes mandatory provisions of international law, the Federal Assembly shall declare it to be invalid in whole or in part.

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But once a initiative on the federal level they passed a certain stage it can no longer be declared inadmissible.
Are you referring to Art. 139/4?

If the Federal Assembly is in agreement with an initiative in the form of a general proposal, it shall draft the partial revision on the basis of the initiative and submit it to the vote of the People and the Cantons. If the Federal Assembly rejects the initiative, it shall submit it to a vote of the People; the People shall decide whether the initiative should be adopted. If they vote in favour, the Federal Assembly shall draft the corresponding bill.

As far as I can tell everything points to any alteration of the Swiss Constitution having to be democratically decided on by the Swiss people. (Art. 140 & 141)

So looking again at the original claim I was questioning:

'In the Swiss legal system international law is the only source of human rights law that can protect the citizenry from a federal law that violates human rights.'

All 'amendments to the Federal Constitution' 'must be put to the vote of the People and the Cantons' (Art. 140)
So Swiss citizens are their own protectors against violations of human rights. Or did I miss something?
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  #82  
Old 03.11.2018, 11:53
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Re: SVP self-determination initiative

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So it's safe to say that initiatives on a cantonal level are subject to being in line with the Federal Constitution.
The Bundesgericht can review any cantonal laws for their compliance with the Constitution. It can even review federal laws but it cannot rule the law itself as being unconstitutional.


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So Swiss citizens are their own protectors against violations of human rights. Or did I miss something?
I wouldn’t agree.


One of the goals of this initiative is ultimately to withdraw from the ECHR, so that no ‘foreign judges’ can have any say over anything in Switzerland.



Interestingly, the vote on the Selbstbestimmungsinitiative is on the same ticket as the referendum concerning the surveillance of people receiving benefits. The detailed regulation of such surveillance is the result of a decision by the ECtHR (Vukota-Bojić v. Switzerland) which found a violation of Art. 8 ECHR in the use of secret surveillance because, among other reasons, it was basically unregulated under Swiss law.



Another change to Swiss law as the direct result of a ECtHR is the revision of the rules on limitation periods. As far as I know, it will not be subject to a referendum (the deadline ended on 4 October 2018). In Howald Moor and Others v. Switzerland the court found a violation of Art. 6 because the rules on limitation periods infringed the rights of persons suffering from asbestos-related diseases which are generally not even diagnosed within the limitation periods.


There are other examples. I’m sure the people affected felt fortunate that they could call upon ‘foreign judges’ to help them protect their rights. Would these changes have come about anyway? Possibly. Probably not, though. When I arrived in Switzerland, women could not keep their own names after marriage. The law at the time:

Article 160
"(1) Married couples shall take the husband's surname as their family name.



The law has now changed and, yes, that change can be traced back to a ECtHR decision (Burghartz v Switzerland, 1994). (The decision actually concerned a Swiss man who married in Germany and took his wife’s name. The Swiss registry office recorded the family name as his surname.) Would that have happened on its own? That decision was in 1994!
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  #83  
Old 03.11.2018, 15:25
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Re: SVP self-determination initiative

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The Bundesgericht can review any cantonal laws for their compliance with the Constitution. It can even review federal laws but it cannot rule the law itself as being unconstitutional.
Here is what I could find on the subject from the Constitution:

Art. 189

1. The Federal Supreme Court hears disputes concerning violations of:
...
d. cantonal constitutional rights;

...

4. Acts of the Federal Assembly or the Federal Council may not be challenged in the Federal Supreme Court. Exceptions may be provided for by law.

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One of the goals of this initiative is ultimately to withdraw from the ECHR, so that no ‘foreign judges’ can have any say over anything in Switzerland.
How does that contradict my observation that 'Swiss citizens are their own protectors against violations of human rights'?

I cannot find anywhere in the SBI text where there is a reference to withdrawing from the ECHR, so I have to assume that you think that a certain portion of the SBI text would inevitably lead to Switzerland's agreement to be party to the ECHR being meaningless and/or severed.

If this is the case, could you point me to the exact portion of the SBI text which you interpret in this way?

I will be clear about one thing though - In my personal view I am against the notion of any foreign body (aka. non-citizen body, group or individual) having the power to make decisions on National law, or the application of said National law, which decisions are deemed to be obligatory for the Nation in question to enforce. I have, however, no problem with advisory determinations being made by the same.

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Interestingly, the vote on the Selbstbestimmungsinitiative is on the same ticket as the referendum concerning the surveillance of people receiving benefits. The detailed regulation of such surveillance is the result of a decision by the ECtHR (Vukota-Bojić v. Switzerland) which found a violation of Art. 8 ECHR in the use of secret surveillance because, among other reasons, it was basically unregulated under Swiss law.
Thanks for bringing that to mind. I had the time to read through the judgement (http://statewatch.org/news/2016/oct/...ment-10-16.pdf).

Page 17, Para. 77:

77. For the above reasons – and notwithstanding the arguably minor
interference with the applicant’s Article 8 rights – the Court does not
consider that the domestic law indicated with sufficient clarity the scope and
manner of exercise of the discretion conferred on insurance companies
acting as public authorities in insurance disputes to conduct secret
surveillance of insured persons. In particular, it did not, as required by the
Court’s case-law, set out sufficient safeguards against abuse. The
interference with the applicant’s rights under Article 8 was not, therefore,
“in accordance with the law” and there has accordingly been a violation of
Article 8 of the Convention.


In a nutshell: "We don't think your domestic law is specific enough, so therefore you are breach of Article 8 of the Convention"

Article 8:

“1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.”


Judge Dedov, who was the 7th and only judge to vote against the decision, stated:

The conclusion of the majority is based on the principles of foreseeability ... In particular, (1) when the surveillance is carried out in secret, the risks of arbitrariness are evident; and (2) domestic law must give citizens an adequate indication as to the circumstances and conditions of secret surveillance.

First, there is no evidence of abuse or arbitrariness at any stage (monitoring, storage of materials, access to reports and presentation in the court proceedings). ... The applicant was informed about the secret surveillance, had access to the reports and challenged them in the national courts.

... A standard rule does not usually adopt such an activist approach, but rather deals with the proportionality of an instance of interference under a statute: if the law requires private persons to prevent
any abuse or offence, the resulting burden must not be excessively high in order not to adversely affect those who do not have any intention to abuse or offend.


So what I take away from this particular judgement is that:
- The applicant's fundamental human rights were not infringed upon.
- The surveillance material in fact revealed that the applicant was not in good standing as pertains to her claims in the Swiss judicial system.
- The court's claim that 'The interference with the applicant’s rights under Article 8 was not, therefore, “in accordance with the law”', is not due to said 'interference' being against "the (Swiss) law" but rather because, in the judges' opinion, the Swiss law was not specific enough to say that the 'interference' was '"in accordance with the law"'.

It's this the sort of quackery which turns people off to the ECHR.
Furthermore, there seems to be an implication that had it not been for the ECHR intervening/meddling in Swiss law and jurisprudence that we, the Swiss citizen and resident, would be worse off for it. I take this to be rather presumptuous. There is every likelihood that the Swiss would themselves have taken measures to clarify the related laws - but even if the Swiss people did not think it necessary to make the existing law more specific, how is that not their right as a sovereign, independent and democratic people?

Quote:
Another change to Swiss law as the direct result of a ECtHR is the revision of the rules on limitation periods. As far as I know, it will not be subject to a referendum (the deadline ended on 4 October 2018). In Howald Moor and Others v. Switzerland the court found a violation of Art. 6 because the rules on limitation periods infringed the rights of persons suffering from asbestos-related diseases which are generally not even diagnosed within the limitation periods.
I will have to go through this one another time as I have run out of time at the present.

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I’m sure the people affected felt fortunate that they could call upon ‘foreign judges’ to help them protect their rights.
What 'rights' were 'protected' in the case of Vukota-Bojić vs Switzerland? Or let me ask it the other way ... what 'rights' were violated by Switzerland?

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Would these changes have come about anyway? Possibly. Probably not, though.
And is it not up to the Swiss people to decide for themselves what laws they do or do not wish to live under?

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When I arrived in Switzerland, women could not keep their own names after marriage. The law at the time:

Article 160
"(1) Married couples shall take the husband's surname as their family name.

The law has now changed and, yes, that change can be traced back to a ECtHR decision (Burghartz v Switzerland, 1994). (The decision actually concerned a Swiss man who married in Germany and took his wife’s name. The Swiss registry office recorded the family name as his surname.)
I will have to postpone looking into this more in-depth due to time constraints, but if this is you're idea of making a case for the necessity of the ECHR to overrule our Swiss law then I honestly think you need to do better - a lot better!

Quote:
Would that have happened on its own? That decision was in 1994!
Again, is it not up to the Swiss people to decide for themselves what laws they do or do not wish to live under? You, and I could be wrong, seem to be of the mind that, no, it is not.
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  #84  
Old 03.11.2018, 23:28
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Re: SVP self-determination initiative

Dear EF colleagues

It is very good of you to give answers to EAB questions.

You should firstly consider what are the OP reasons for posting detailed questions about the Swiss Constitution in an English Forum which is not the best place for obtaining such information.
Secondly you should note the OP only responds to such answers with criticism and also fails to provide any new information.

For me this is classic troll behaviour.
Of course if you want to continue feeding this troll then this is your prerogative.

Myself I already voted so I have no interest in further debating.
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  #85  
Old 04.11.2018, 00:16
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Re: SVP self-determination initiative

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Dear EF colleagues

It is very good of you to give answers to EAB questions.

You should firstly consider what are the OP reasons for posting detailed questions about the Swiss Constitution in an English Forum which is not the best place for obtaining such information.
Perhaps it is 'not the best place'? But this 'place' seems to be just fine to you for very bold statements to be made which are in line with your views, statements which pertain to the Swiss Constitution, statements which you readily give the thumbs-up to. Those claims are the 'reasons' for why I am bringing up the Swiss Constitution here.

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Secondly you should note the OP only responds to such answers with criticism and also fails to provide any new information.
Nonsense. I agreed with a number of things stated in reply to my posts, and I also brought forward new information/questions to the discussion.

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For me this is classic troll behaviour.
Of course if you want to continue feeding this troll then this is your prerogative.
Pathetic. Can't discuss the subject matter so you have to stoop to accusing me of being a troll.

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Myself I already voted so I have no interest in further debating.
Well obviously, unlike myself, you have no need of further knowledge or information on the SBI, which begs the question "Why are you still active in this thread at all? .... Unless you are here just to ... ... ... TROLL!?".
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Old 04.11.2018, 10:48
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Re: SVP self-determination initiative

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Dear EF colleagues

It is very good of you to give answers to EAB questions.

You should firstly consider what are the OP reasons for posting detailed questions about the Swiss Constitution in an English Forum which is not the best place for obtaining such information.
Secondly you should note the OP only responds to such answers with criticism and also fails to provide any new information.

For me this is classic troll behaviour.
Of course if you want to continue feeding this troll then this is your prerogative.

Myself I already voted so I have no interest in further debating.
So FAB annoys you. Why pretend you got something sophisticated to say?
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Old 04.11.2018, 10:54
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Re: SVP self-determination initiative

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Dear EF colleagues

It is very good of you to give answers to EAB questions.

You should firstly consider what are the OP reasons for posting detailed questions about the Swiss Constitution in an English Forum which is not the best place for obtaining such information.
Secondly you should note the OP only responds to such answers with criticism and also fails to provide any new information.

For me this is classic troll behaviour.
Of course if you want to continue feeding this troll then this is your prerogative.

Myself I already voted so I have no interest in further debating.
Although I tend to agree with you on this one, I don't think your reaction helps.

Don't assume everyone is so easy to manipulate or better said, so eager to be manipulated. If we gave up commenting on every little thing here and on every post and every poster....just don't assume. My impression is your reactions have the opposite effect than the one intended. Take care.
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Old 04.11.2018, 11:07
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Re: SVP self-determination initiative

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Although I tend to agree with you on this one ...
So you too think I am trolling??
I must be one heck of a troll. Probably part of the tiny minority of trolls who can be bothered to take the hours needed to read dozens of pages of legislative and judicial information, and then comment with quotations from said information.

That's one heck of a dedicated troll.
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Old 04.11.2018, 11:30
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Re: SVP self-determination initiative

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so fab annoys you. Why pretend you got something sophisticated to say?
"FAB" lol!
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Old 04.11.2018, 11:39
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Re: SVP self-determination initiative

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Although I tend to agree with you on this one, I don't think your reaction helps.

Don't assume everyone is so easy to manipulate or better said, so eager to be manipulated. If we gave up commenting on every little thing here and on every post and every poster....just don't assume. My impression is your reactions have the opposite effect than the one intended. Take care.
Simply, like you, exercising my privilege to politely express my opinion.
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Old 04.11.2018, 11:52
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Re: SVP self-determination initiative

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Considering you claim to be Swiss and understand German I link to this two articles:
https://www.vimentis.ch/d/publikatio...r+Schweiz.html
https://www.nzz.ch/schweiz/schubert-...ssung-ld.82141

Sorry marton but that is grossly wrong. You are mixing up initiatives (proposal from the people to change the constitution) and referendum (veto of the people against a new or changed act from the federal assembly).

The people cannot(*) directly propose a new act or change of an act on federal level. They might do so in some cantons.

(*) There was a brief period from 2003 to 2009 when technically this possibility existed. But as it was too complicated and no actual law existed how that actually should have been done it was removed from the Swiss constitution. See the footnotes at the no longer existing Art. 139a of the constitution https://www.admin.ch/opc/de/classifi...dex.html#a139a


May be you should have a look int the book again. Or Mr. Cormon is also wrong.
You might also read the "The Swiss Confederation – a brief guide" published by the Federal Chancellery https://www.bk.admin.ch/bk/en/home/d...ief-guide.html
But surely the 2014 Masseneinwanderung initiative did propose specific changes to the Constitution, or do I miss something?
Not forgetting that these changes were not made despite the success of the initiative.

I quote
"Eidgenössische Volksinitiative 'Gegen Masseneinwanderung'

Die Bundesverfassung wird wie folgt geändert:

Art. 121 Sachüberschrift (neu)

Gesetzgebung im Ausländer- und Asylbereich

Art. 121a (neu) Steuerung der Zuwanderung"
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Old 04.11.2018, 12:26
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Re: SVP self-determination initiative

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So what are these 'provisions'? Where do they comes from? Are they created through Initiatives and Referendums?
All explained in the booklet of the federal chancellery i linked. Available in German, French, Italian, Rumantsch and English. After that you can have a look at the actual laws how the councils work here: https://www.admin.ch/opc/de/classifi...ion/17.html#17

Happy reading.



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Yes to the first part, but no to the second, at least according to what I read here: https://www.swissinfo.ch/eng/high-co...valid/44381198

The Federal Court says that an initiative by the conservative right Swiss People’s Party to ban head coverings in schools in the southern canton of Valais is invalid. It confirms the decision taken by the Valais parliament.
In explaining federal court rulings the NZZ is the best option after reading the federal court ruling yourself. English and condesed news will only bring you forward so much when it is about Swiss politics.

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So Swiss citizens are their own protectors against violations of human rights. Or did I miss something?
Short of military intervention from other countries? Yes.

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I cannot find anywhere in the SBI text where there is a reference to withdrawing from the ECHR, so I have to assume that you think that a certain portion of the SBI text would inevitably lead to Switzerland's agreement to be party to the ECHR being meaningless and/or severed.
Then you may should read and study. https://www.admin.ch/opc/de/federal-.../2018/3497.pdf
Then you can start pondering about the proposed Art. 56a Abs. 2, how a cluster feck of a contradiction Art. 5 and Art. 190 are.
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Old 04.11.2018, 12:31
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Re: SVP self-determination initiative

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But surely the 2014 Masseneinwanderung initiative did propose specific changes to the Constitution, or do I miss something?
Are you trolling? What irony considering your claim about others in this thread. Do you really not know the difference between the constitution and a federal act? how they come to be and what legal obligations they bring?

All explained in the booklet of the federal chancellery I linked. Available in German, French, Italian, Rumantsch, and English.
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Old 04.11.2018, 13:43
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Re: SVP self-determination initiative

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But surely the 2014 Masseneinwanderung initiative did propose specific changes to the Constitution, or do I miss something?
That is the whole point of Iniatives, but you were talking about Referendums.

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New federal acts are created by referendum.
Wrong. They are confirmed or rejected by referendum.

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In summary you draft a referendum
Wrong.

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The federal popular initiative (German: Eidgenössische Volksinitiative, French: Initiative populaire fédérale, Italian: Iniziativa popolare federale).
A referendum is a referendum, and initiative is not.

Tom
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Old 04.11.2018, 14:00
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Re: SVP self-determination initiative

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The law has now changed and, yes, that change can be traced back to a ECtHR decision (Burghartz v Switzerland, 1994). (The decision actually concerned a Swiss man who married in Germany and took his wife’s name. The Swiss registry office recorded the family name as his surname.) Would that have happened on its own? That decision was in 1994!
The logic here is that you are assuming Swiss judges can be mistaken or biassed but interntaional judges cannot.

What is to prevent the reverse being true?
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Old 04.11.2018, 14:18
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Re: SVP self-determination initiative

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That is the whole point of Iniatives, but you were talking about Referendums.



Wrong. They are confirmed or rejected by referendum.



Wrong.



A referendum is a referendum, and initiative is not.

Tom
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Old 04.11.2018, 14:46
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Re: SVP self-determination initiative

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The logic here is that you are assuming Swiss judges can be mistaken or biassed but interntaional judges cannot.

What is to prevent the reverse being true?
Nothing!


But there is also an experience value that should be considered before all of a sudden getting scared shitless of something that's been a certain way for a very long time.
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  #98  
Old 04.11.2018, 21:05
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Re: SVP self-determination initiative

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The logic here is that you are assuming Swiss judges can be mistaken or biassed but interntaional judges cannot.

What is to prevent the reverse being true?
No, that is not the logic at all. The example has nothing to do with Swiss judges as they as a rule do not make law in Switzerland. The judges of the ECtHR, which does have a Swiss judge, ruled that that an individual's rights were violated. The Swiss judges had previously ruled on the case applying the law as it stood at the time. No mistakes. Bias, I don't know.

After the ECtHR decision, a proposal was made to amend the law, by a Nationalrat I think. It made its way through all the proper channels in the government until a recommendation was made. The proposed amendments were introduced and the deadline for a referendum passed unused and it became law.
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  #99  
Old 04.11.2018, 22:46
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Re: SVP self-determination initiative

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All explained in the booklet of the federal chancellery i linked.
Ok, well I had looked at the document again, this time searching for the word 'provision' and finding 12 hits. The most pertinent of which seems to be this one on page 32:

'Any member of the National Council or the Council of States can submit a procedural request to introduce a new law, add a new provision to the Constitution, or have an existing law amended'

If I am not mistaken Art. 163 is simply saying that the Federal Assembly is tasked with the responsibility of making laws, other than the 'federal decree'. Please correct me if I am misunderstanding this.

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In explaining federal court rulings the NZZ is the best option after reading the federal court ruling yourself. English and condesed news will only bring you forward so much when it is about Swiss politics.
Ok, just that that was SRF (Swissinfo)
But I had a look at the NZZ article you linked to and it seemed to pretty much confirm what SRF wrote:

... das Bundesgericht hingegen zum Schluss, der Beschluss des Walliser Grossen Rats verletze keine politischen Rechte.
...
Weiter hielten die Lausanner Richter fest, der Zweck der Initiative sei zwar allgemein gehalten, in Wirklichkeit aber sei sie hauptsächlich auf das Tragen des Kopftuchs ausgerichtet. Dies zeige die parallel zur Unterschriftensammlung durchgeführte Plakatkampagne, ausserdem hätten die Initianten dies selbst eingeräumt. In einem Entscheid aus dem Jahr 2015 habe das Bundesgericht bereits festgehalten, dass eine Bestimmung, die das Tragen des Kopftuchs durch Schüler in öffentlichen Schulen verhindern soll, überproportional gegen die Glaubens- und Gewissensfreiheit und damit gegen übergeordnetes Recht verstosse.


But I agree, there was definitely more clarification in the NZZ article.

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Short of military intervention from other countries? Yes.
Ok, that is what I thought was the case from the start. The Swiss citizen is their own protector against violations of human rights.

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Then you may should read and study. https://www.admin.ch/opc/de/federal-.../2018/3497.pdf
Then you can start pondering about the proposed Art. 56a Abs. 2, how a cluster feck of a contradiction Art. 5 and Art. 190 are.
SBI proposed Art 56a/2:

'Im Fall eines Widerspruchs sorgen sie für eine Anpassung der völkerrechtlichen Verpflichtungen an die Vorgaben der Bundesverfassung, nötigenfalls durch Kündigung der betreffenden völkerrechtlichen Verträge.'

Rough English translation:

In the case of a contradiction, ensure an adaptation of international law obligations in line with the requirements of the Federal Constitution, if necessary by termination of the relevant international treaties.

If I understand this correctly, I am completely in favor of this. We should not be entering into any international agreements which contravene the democratically decided upon will of the Swiss people, which will is recorded in our Constitution.

Art. 5/4:

'The Confederation and the Cantons shall respect international law.'

Art. 190:

'The Federal Supreme Court and the other judicial authorities apply the federal acts and international law.'

I can see how someone might think there is a contradiction here, but upon deeper inspection I don't think there is any.

Art. 5/4, to my understanding, is mandating the Confederation and Cantons to respect international law. This does not mean, to me, that any and all international rules/agreements/treaties in existence must be applied/adhered to by Switzerland, but rather that any international rules/agreements/treaties which Switzerland is a signatory to must be respected by Switzerland.

Art. 190, to my understanding, is mandating the Swiss judiciary to apply to their determinations and proceedings the international law which Switzerland are signatories to.

So here is how I see this being laid out:

1. The Swiss people decide that the Swiss Constitution is the highest authority in Switzerland as pertains to law.
2. Following from the above, all domestic and international contracts must be in accordance with the Swiss Constitution.
3. Art. 5/4:
'The Confederation and the Cantons shall respect international law.'
4. Art. 190:
'The Federal Supreme Court and the other judicial authorities apply the federal acts and international law.'

I honestly do not see any contradiction there.
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  #100  
Old 05.11.2018, 14:17
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Re: SVP self-determination initiative

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Ok, that is what I thought was the case from the start. The Swiss citizen is their own protector against violations of human rights.
That only works up to a point.

If you agree that HR are universally valid, there's a problem once they're withdrawn from any individual or group, whatever the criteria for the withdrawal may happen to be. That's where superior law comes handy. And yes, from that POV the HR agreement is the only means guaranteed to apply to, and therefore protect, everybody.
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