“The COVID-19 Act bypasses the constitutional legislator and thus the people and the cantons”

by Andreas Kley*

(5 November 2021) The subject of the referendum vote [of 28 November 2021] is the “Federal Act on the Statutory Principles for Federal Council Ordinances on Combating the COVID-19 Epidemic”. The title of the law, which lacks content, is striking. The title is pleonastic, because what should a federal law do other than create legal foundations? Moreover, a law must do more than just support ordinances.

This addresses the specificity: The federal act does not intend to shape a specific regulatory area – although this is expected of every law. It merely wants to provide a legal basis for already existing (emergency) ordinances. This can be seen in various ways.

COVID-19 Act: “The Federal Council may, may, may ...”

In its ingress, the law invokes the unusually high number of 16 federal competences with which it seeks to legitimise itself constitutionally. These 16 federal competences lead one to expect an extensive decree dealing with many subject matters. This is not the case. The 34 articles provide a narrow act. The ingress of the COVID-19 Act shows that it puts together a package of competences. The federal assembly places this package of competences into the hands of the federal council. The act repeatedly states “The Federal Council may, may, may ...”.

The federal council accepted the gift of competence by issuing the “Ordinance on the Support of the COVID-19 Ordinances on the COVID-19 Act” on 7 October 2020. In the ingress of existing COVID-19 ordinances, it deleted the reference to Art. 185 para. 3 of the Federal Constitution (“emergency law”) and replaced it with the COVID-19 Act as the new basis for competence.

Subsequently, it decreed additional (mitigation and intervention) COVID-19 ordinances based on this act. Parliament and the federal council use the following chain of legitimation: 16 constitutional provisions support the COVID-19 Act, which in turn emphasises these competences without making its own substantive provisions and transfers the respective substantive competence to the federal council.

An undemocratic intention

The strange title of the law not only indicates a legal formalism, but also reveals an undemocratic intention. Art. 164 of the federal constitution stipulates the minimum substantive content of laws. According to this requirement, “all significant provisions that establish binding legal rules must be enacted in the form of a federal act”, and the basic provisions on “the restriction of constitutional rights” or the definition of the “rights and obligations of persons” are mentioned as examples.

The federal assembly is obliged to lay down these rules itself. It may not delegate this work to the federal council. The federal laws must not be blanket laws lacking in content.

The provision of Art. 164 safeguards democracy: it is the parliament elected by the electorate that discusses, drafts and adopts the important legislative content. Subsequently, these norms are subject to referendum. The COVID-19 Act allows to shorten the democratic process considerably. It bypasses the federal assembly and thus the referendum democracy.

The COVID-19 Act also violates Art. 185 of the federal constitution on the immediacy of ordinances. Within the framework of the federal constitution and under limited conditions, the federal council is entitled to these. The federal assembly is not authorised to extend this provision with a mere federal law; rather, this would require a revision of the constitution.

Swiss democracy grossly injured

The act bypasses the constitutional legislature and thus the people and the cantons. The title of the COVID-19 Act documents a substantial failure of the federal assembly. It does not take its principle task, that of legislation, seriously. With the COVID-19 Act and its amendments, the democratically elected highest body of the Confederation has infringed two important articles of the federal constitution and grossly injured Swiss democracy.

Democracy gives voters political rights that materialise in elections and votes. The democratic form of government requires reliable and fair procedural rules, which are laid down in the constitution. These have been “adopted by the people in times of sober consideration”, and the constitution thereby embodies “freedom and self-control”. In “moments of precipitation and agitation” these maxims provide a firm guide (James Bryce).

Time for contemplation

The democratic rules of procedure require time for debate and protect the “weak against the strong”. In doing so, they “hold up one person and give the other time for contemplation” (Alexis de Tocqueville). It is necessary to remind the majority of parliamentarians of these democratic principles.

* Andreas Kley is Professor of Public Law, Constitutional History and Philosophy of State and Law at the University of Zurich.

Source: © Neue Zürcher Zeitung of 20 October 2021. Published under the title: “COVID-19 Gesetz: Der Bundesrat kann, kann, kann …” (Current title and subtitle: Editorial office “Swiss Standpoint”). Reprinted with kind permission of the NZZ and the author.

(Translation “Swiss Standpoint”)