The decision of the U.S. Supreme Court to allow same-sex marriage in the United States has led to think about the situation in Switzerland and about the role of a constitution.
In Switzerland, a popular initiative can add amendments to the constitution, but we have no constitutional court to enforce these. All the constitution does is say that parliament ought to pass laws to make it real. Then parliament can’t agree on a law, these amendments linger for many years, decades even. I’ve heard it said that this construction was made on purpose. Why have a court to make these decisions if you can simply vote in a different parliament. The idea is that you just add more democracy, I guess.
I just think it’s interesting that there are alternative thoughts on this and some do not require undemocratic elections for life of powerful people.
When comparing a high court of justices for life and an inactive parliament, I think the inactive parliament has more democratic potential because in a few years, I can vote for a new parliament. So, for the moment: not much different. As a political institution: it’s better if you can change your vote.
And yes, of course a democracy usually goes hand in hand with the rule of law, a constitution that protects minorities, and many other institutional and cultural norms. You can vote in Russia, in Iran, in the USA, and still you’ll find powerful forces affecting your freedoms: existing legislation preventing the establishment of a viable alternative, financial incentives preventing the growth of viable alternatives, existing institutions preventing the implementation of meaningful change. Voting alone is not enough.
Note that as far as the US goes, I think what makes it impossible for me to be very enthusiastic about decisions of the supreme court I happen to like or the election of presidents I like is that I know full well that the voters that disagree with me are still there, they still make up about half of the population, we won but we didn’t convince. So yes, as far as I am concerned, Love Wins and Thanks Obama Unironically and all that. But the others are still there. The US system of legal and cultural norms, of financial pressures, of all the things that are not about the actual voting, made it impossible to reach out and make those positive steps together. After the fight is before the fight. No matter who wins, the other side is determined to fight harder next time. None of the news that reaches me across the Atlantic gives me hope regarding any sort of healing. Perhaps this is part of our Zeitgeist for the moment. Or perhaps it has always been thus and I’ve just grown older, and more tired.
Also note that same-sex couples still don't get the exact same rights and protections in Switzerland.
I’ve seen a few posts in my Google+ stream happy with the 18 years a revenge porn guy got. They linked to news items like this Revenge Porn" Defendant Sentenced to 18 Years, “Kevin Bollaert was found guilty of posting sexually explicit photos of women online to extort them.”
I’m happy revenge porn guy gets punished. Fuck him! But, as I live in a country where a life sentence means 25 years (17 years if you behave well in prison), 18 years seems incredibly harsh. Well, at least he’s “eligible for parole after 10 years” as reported by the same news article.
I’m unaware of a similar case here in Switzerland. I’ll have to ask my wife. She’s the expert when it comes to crime and punishment in the family.
I looked at a few of the Facebook comments below the article and saw a few comments regarding revenge porn guys inadequate expression of remorse. I’m always suspicious when the punishment depends on the punished showing adequate remorse or some other reaction that depends on their social graces. If they have none, if the convicted are emotionally stunted, do they deserve harsher punishment?
I just looked at Art. 156 of the Swiss Criminal Code.
- Any person who, with a view to securing an unlawful gain for himself or for another, induces another person by using violence or the threat of seriously detrimental consequences to behave in such a way that he or another sustains financial loss is liable to a custodial sentence not exceeding five years or to a monetary penalty.
- If the offender acts for commercial gain, or if he repeatedly commits the offence against the same person, he is liable to a custodial sentence of from one to ten years.
- If the offender uses violence against another or if he threatens another with an immediate danger to life and limb, a penalty in accordance with Article 140 hereof is imposed.
- If the offender threatens to endanger the life and limb of a large number of persons or to cause serious damage to property in which there is a substantial public interest, he is liable to a custodial sentence of not less than one year.
I’m not sure what would happen if a person is convicted of multiple cases of extortion. I’m guessing that in Switzerland, Kevin Bollaert would have gotten ten years at most, eligible for parole after ⅔ of that.
What about the ex-husbands and ex-boyfriends, I wonder. Somebody sent those pictures to revenge porn sites. Shouldn’t they all get punished as well? It may not be extortion but I’m sure it’s something. Maybe Art. 177 is appropriate?
- Any person who attacks the honour of another verbally, in writing, in pictures, through gestures or through acts of aggression is liable on complaint to a monetary penalty not exceeding 90 daily penalty units.
- If the insulted party has directly provoked the insult by improper behaviour, the court may dispense with imposing a penalty on the offender.
- If there is an immediate response to the insult by way of a retaliatory insult or act of aggression, the court may dispense with imposing a penalty on either or both offenders.
A “daily penalty unit” depends on the punished’s personal finances and can go up to $3000, as seen in Art. 34 of the Swiss Criminal Code.
- Unless the law provides otherwise, a monetary penalty amounts to a maximum of 360 daily penalty units. The court decides on the number according to the culpability of the offender.
- A daily penalty unit amounts to a maximum of 3000 francs. The court decides on the value of the daily penalty unit according to the personal and financial circumstances of the offender at the time of conviction, and in particular according to his income and capital, living expenses, any maintenance or support obligations and the minimum subsistence level.
- The authorities of the Confederation, the cantons and the communes shall provide the information required to determine the daily penalty unit.
- The number and value of the daily penalty units must be stated in the judgment.
Some people commented and said they agreed. I wrote that from what I heared Germans in Switzerland say, many like it here as well. I love the Swiss system. And the weird thing is: the Swiss Federal Constitution of 1848 “was influenced by the ideas of the constitution of the United States of America and the French Revolution.” (Emphasis mine.)
I just finished listening to the latest bunch of episodes about the American Revolution and the drafting of the United States Constitution, and the List of amendments to the United States Constitution, at the Revolutions Podcast. Excellent material if you’re into podcasts at all.
When I read the FP article, I felt disappointed because of its shallow analysis. What about Exportweltmeister and the price the Germans paid, stagnating wages? What about the discussions of the 5% hurdle after recent elections? What about the historic justifications for the Senate in order to convince smaller entities to join the federation? These can be an important issue in heterogeneous federation like Switzerland (there was a time when each canton had its own currency)—and possibly also of interest for nations after a civil war (Bosnia and Herzegovina, Lebanon, Syria) or countries where so many regions strive for more autonomy and the state is always in fear of breaking apart (Spain, Italy). So yes, the Basic Law for the Federal Republic of Germany is great. But the US has its United States Bill of Rights, and a Constitutional Court, and that’s great. In contrast, Switzerland allows its citizens to easily amend the constitution, but there is no constitutional court, so sometimes issues linger for years before appropriate laws get passed! So it would seem to me that the US has all the tools it needs. I suspect it has mostly a broken process. Something needs reform, but I’m not sure that the German system is a good place to start looking.
The United States of America are trying to nail their feet to the ground when it comes to the Internet. And knowing their power and influence, and their spying and blackmailing, I wouldn’t be surprised if their ideas start spreading elsewhere. That’s the unfortunate reality of life on the Internet: I feel like I need to pay $10/month to the EFF and $10/month to the FSF in order for them to fight for their rights such that their problems don’t spread to where I live. Globalising the fight for our right!
If you don’t know what I’m talking about, here are two recommended and entertaining videos to explain it all.
If you’re American, you can tell them how you feel. Or, according to FCC Establishes New Inbox for Open Internet Comments, you can send them email: firstname.lastname@example.org
Here’s what I sent, even though I am not an American:
Net neutrality, the principle that Internet service providers (ISPs) treat all data that travels over their networks equally, is important to me because without it users have fewer options. ISPs should not be the gate keepers to what we do on the Internet. As it stands, there is also precious little competition between providers. If I don’t like my service provider, what am I going to do? I cannot take my business elsewhere.
A pay-to-play Internet worries me because new services cannot compete. There is no such thing as a video startup with slow download speeds. We’re automatically favoring existing businesses and making life hard for future entrepreneurs and startups. And we gain nothing in return!
The Internet has the unique ability to make all of us authors. We can read and write, share and consume. By making a fast service more expensive, we’ll be limiting good quality to commercial ventures. We also want non-commercial projects to succeed. We want to download free software, for example. We want to watch our own videos, hosted on our own servers. We don’t want an Internet Apartheid. That is not the “freedom” I want.
Help us make the Internet into the thing almost all of us want, not into the Internet the ISPs want.
Not only is ubiquitous surveillance ineffective, it is extraordinarily costly. I don’t mean just the budgets, which will continue to skyrocket. Or the diplomatic costs, as country after country learns of our surveillance programs against their citizens. I’m also talking about the cost to our society. It breaks so much of what our society has built. It breaks our political systems, as Congress is unable to provide any meaningful oversight and citizens are kept in the dark about what government does. It breaks our legal systems, as laws are ignored or reinterpreted, and people are unable to challenge government actions in court. It breaks our commercial systems, as US computer products and services are no longer trusted worldwide. It breaks our technical systems, as the very protocols of the Internet become untrusted. And it breaks our social systems; the loss of privacy, freedom, and liberty is much more damaging to our society than the occasional act of random violence. – Bruce Schneier, How the NSA Threatens National Security
Concerned by all the Snowden stuff? I am. I’ve had some friends use encrypted mail. Thanks!
I use GPG and you can download my public keys from a public keyserver. I’d be happy to keep our communications encrypted.
I’m also thinking of using the Raspberry Pi I got as a mail server. It would be always on. I think I’d like that. I recently found some instructions on how to do that in a German magazine (behind a paywall). Some alternative articles I’ll be reading later:
I really like what Bruce Schneier has to say. This, for example:
The NSA has turned the fabric of the internet into a vast surveillance platform, but they are not magical. They’re limited by the same economic realities as the rest of us, and our best defense is to make surveillance of us as expensive as possible.
Trust the math. Encryption is your friend. Use it well, and do your best to ensure that nothing can compromise it. That’s how you can remain secure even in the face of the NSA.
– Bruce Schneier, How to remain secure against NSA surveillance
By subverting the internet at every level to make it a vast, multi-layered and robust surveillance platform, the NSA has undermined a fundamental social contract. The companies that build and manage our internet infrastructure, the companies that create and sell us our hardware and software, or the companies that host our data: we can no longer trust them to be ethical internet stewards.
This is not the internet the world needs, or the internet its creators envisioned. We need to take it back.
And by we, I mean the engineering community.
– Bruce Schneier, The US government has betrayed the internet. We need to take it back
I remember when Richard Stallman started saying people should pay with cash, not credit and debit cards. I thought it was paranoid but cool. There was no need for me to follow suit.
I’ve been reducing my use of credit and debit cards in recent weeks.
Yesterday I wanted to google for a cartoon in order to show it to my wife. I joked that the keywords would probably get me on a watch list. My wife said I was a fool to use those search terms. Did I need to “prove” myself by googing those terms? When I said that if I stopped looking for information using those terms, I was already accepting that the police state is real. She said, thanks for making it harder for me, should I want to visit the United States again.
Needless to say, the argument was a bit longer and a perfect Saturday was ruined with a late night discussion about the current state of the
world surveillance society.
Recommended reading: Restoring Trust in Government and the Internet by Bruce Schneier.
Looking back at how things have gone in the last year I’d say that all my RPG conversation has moved to Google+ and this wiki-blog has turned into a repository of things I don’t want to loose when Google+ is shut down. All my political thoughts are on Twitter: @kensanata and I’m almost exclusively expressing myself via retweets. I’m also more than happy to talk about it on Twitter.
I post my pictures on Flickr at kensanata for myself and cross-post them to Facebook and a protected Twitter channel for the various family members out there.
Recently reports have started resurfacing… (I’ve been following Jürgen Hubert on Google+.)
At one point I left the following comment:
The fall of the US from a spiritual leader of freedom and democracy when I was young – in the seventies and eighties I knew nothing of Vietnam and I grew up with American pop music – to a war mongering nation, to a nation that systematically tortures prisoners, a nation that refuses due process to prisoners, to a nation that imprisons so many of their own population, to a nation that uses cruel and unusual punishment in the form of Three Strikes and its variations – there are no words for this moral catastrophe. No words.
I’m still torn: was my decision do abandon my ranting online and turn into a gamer (HomoLudens) the right thing to do? After all, if we all retreat into our little shells, if we all tend to our little gardens, then nothing ever changes, right?
Yesterday, I wrote about my thoughts on SOPA and how the USA’s legal arm had grown long indeed.
Today, I want to comment on something I’m seeing in a lot of the statements in protest to SOPA, eg. on Google’s End Piracy, Not Liberty page: “Fighting online piracy is important.” Wil Wheaton says on Today the US Senate is considering legislation that would destroy the free and open Internet: “I’ve probably lost a few hundred dollars in my life to what the MPAA and RIAA define as piracy, and that sucks, but that doesn’t come close to how much money I’ve lost from a certain studio’s creative accounting.”
I agree that SOPA and PIPA are terrible. They will reduce our freedoms, increase legal uncertainty, make it harder to do business, make it harder to host user contributed content (forums, wikis, archives, social networking and more). The goal, of course: Big Hollywood’s Big SOPA Defeat.
But while the citizens of the USA fight stupid legislation (which the USA will then most probably try to impose on other countries as well), let us not forget that the current copyright regime is stupid, too. We need less protection. We need shorter protection. We need less punishment.
I want to be a privateer!
Update: Supreme Court Chooses SOPA/PIPA Protest Day To Give A Giant Middle Finger To The Public Domain – they keep extending copyright, what a shame! I prefer the Public Domain.
Update: I love this rant: Why I'm a pirate!
Update: A step in the right direction: Another Interesting White House Petition: Reduce The Term Of Copyright – even though 56 years is still way too long and even though the president appears to be the wrong addressee.