In a report, the government and administration reveal that they missed the opportunity to return to normality during Corona.
A time to forget – during the Corona pandemic, the Federal Council issued emergency law.
Peter Klaunzer / Keystone
People quickly forget things. Credit Suisse is history, the emergency loan for Axpo has long been forgotten. And no one wants to be reminded of the pandemic. Did the Federal Council act correctly in all these crises by issuing emergency legislation?
This question will probably never be answered conclusively. Especially since the relevant articles in the Federal Constitution are formulated in such a way that one can always find reasons for or against the government’s measures. Was the downfall of the CS really unforeseeable?
Every crisis is different
A report by the Federal Council on the application of emergency law leaves this question open. Nor is it a critique of the country’s own handling of the partially overlapping crises of recent years.
The conclusion is that the next time emergency law is passed, people want to communicate more openly and in more detail. If there is more power, then at least there should be more transparency – the report that the Federal Council passed before the summer holidays is also an abstract of platitudes.
Above all, however, the report is a response to various postulates. It was written by an internal administrative working group – under the leadership of the Federal Office of Justice (FOJ) and under the observation of an expert group of legal scholars.
This concludes that the emergency law provisions of the Constitution (Articles 184 paragraph 3 and 185 paragraph 3) are no longer up to date. They do not distinguish between national and international crises, nor between emergency decrees and emergency orders.
Above all, however, the constitution does not clearly distinguish between classic police interests – that is, the state’s duty to protect the life, limb and freedom of its citizens – and other socio-political interests, such as economic interests (in the case of the CS).
Consequently, the working group believes that the emergency law provisions of the constitution would have to be made more precise in order to limit the Federal Council’s emergency law powers. Will constitutional lawyers now launch an initiative themselves? Not at all.
If the conditions were written into the constitution in more detail, it would be possible to achieve a “dampening and gentle influence” on the Federal Council’s application of emergency law, the lawyers explained in discussions with the administrative units.
The problem: It is practically impossible to find a contemporary and timeless alternative formulation for all crises that could arise. A regulation that covers every crisis constellation is hardly conceivable. “It would deplete the Federal Council’s emergency powers,” says a discussion paper attached to the report. After all the crises and attempts to deal with them, the tension between the sudden concentration of power in the Federal Council and the necessary ability to act remains.
The administration also sees “no added value” in a possible constitutional amendment. The Covid pandemic in particular has shown that the beginning and, above all, the outcome of a crisis are not easy for the government to determine. “The longer a crisis lasts, the less the Federal Council can rely on emergency law to justify the measures taken,” the administration’s working group writes in the report.
Making “crisis-proof” laws
One is inclined to read a hint of self-criticism between the lines. Did the Corona crisis mean that the jump from emergency law back to normality was missed? In the report, the administration states in general terms: “Demands for a return to ordinary procedures, responsibilities and ordinary law are gaining more and more weight over time, while the abandonment of ordinary democratic and constitutional procedures appears increasingly less justified.”
The report concludes that the Federal Council and the administration should work towards “crisis-proof legislation”. The laws should be designed in such a way that the emergency law articles in the Federal Constitution do not even have to be activated. Like, for example, in the case of the state-backed takeover of CS by UBS?
The fact that the “too big to fail” regulation was not applied in the event of a crisis is not even addressed in the report. People are eagerly awaiting the findings of a parliamentary commission of inquiry, also in the hope that everything will not be forgotten by the time the next crisis occurs.
