Abuse of emergency clauses: a Swiss perspective
Posted On May 12, 2020
Article by Nadine Boss | Illustration by Armadilly Comics
In a vast majority of countries severely affected by Covid-19, the executive currently enjoys almost infinite power.
National constitutions normally contain a so-called “state of emergency clause”, that allows the government to temporarily suspend its obligations in a time of crisis. They can invoke powers that would normally be considered infringements on liberty.
Currently, finding ourselves in exactly such a crisis, like many other national executives, the Swiss Federal Council is still asked to govern within the boundaries of the constitution. However, as it is not much more than a recommendation, no one can stop our politicians if they don’t.
Up until now, there have been several occasions where the Swiss government had to make use of the emergency laws: World War II, the bailout of UBS in the financial crisis, and the financial support for Swissair in 2001.
The major difference between these occasions and our current pandemic crisis is the scope of interference the emergency state has on our daily lives. In the past, there were punctual interventions concerning only one sector, one company, or one case. This time around, the governments’ decisions interfere with our daily lives, our freedom, and democracy.
While this might sound a bit overdramatic coming from a highly politically stable country, it has not always been like that.
The first time in modern history where the state of emergency empowered the federal council was during World War II. In that time, the executive used its power to make decisions that were far from complying with the constitution and even further from concerning the war.
For example, in 1941 the Swiss Federal Council decided to expatriate all Swiss women if they were to marry a foreigner. The government justified the so-called marriage rule by defending the country from “strangers” and refugees. With the acceptance of the parliament, this reign lasted until seven years after the war.
Luckily, things are different today. After the widely criticized rescue of UBS in 2009, the parliament realized that it was time to make some changes to the emergency legislation and limited the executive’s power. While it is still possible to reign over the limits of the constitution, there is a set timeframe to be followed.
If the federal council decides to overrule the constitution, the regulation has to be presented to and approved by the parliament within six months.
This mechanism allows the legislators to maintain some control in a state of emergency and prevents the executive from dragging on a state of emergency for years or even decades, long after the actual reason for its proclamation has disappeared. (Rechsteiner, 2016)
Looking beyond our borders
The danger that a “constitutional dictatorship” can arise out of a state of emergency should not be understated. While our current crisis has only been going on for about three months, there are already several nations struggling with abuse of power.
In fact, the pandemic claimed its first democracy when Hungarian Prime Minister Viktor Orban got approval from his parliament to rule Hungary indefinitely, bypassing legislators. His newly gained powers give president Orban unlimited authority to fight COVID-19 by overriding the constitution, suspending parliament, and postponing all future elections.
Similarly, while the US constitution has no emergency clause, Congress has historically allowed executive action in times of crisis. These measures, once approved, hardly ever got curtailed at the end of a crisis.
As a result, President Trump now has 136 different statuary powers to handle the current situation. Many groups claim that the president is abusing his power to stoke xenophobia and hostility against immigrants, for example by calling COVID-19 “the Chinese Virus”.
These cases do have one thing in common.
Whilst the Hungarian and US political systems might be very different, both have had issues with abuse of power for quite some time now. President Orban has been working towards an authoritarian regime for a whole decade since his re-election in 2010. In President Trump’s impeachment case, which was closed at the beginning of this year, he was accused of abuse of power and obstruction of Congress.
These cases make clear that while a crisis can act as a door-opener, it is only the tip of the iceberg. What is actually causing the latest political developments are flawed systems that have been overdue for changes for decades.
Politicians that have no respect for the balance of power and emergency clauses that de facto are loop-holes in our constitutions are a toxic combination.
What can we do?
Looking at the recent developments across the globe and our history with emergency clauses, we can learn two things:
First, allowing the executive to legally overrule the constitution is always a slippery slope. Allowing the executive, be it one person or seven, as the Federal Council, to be the sole judge of proportionality in a time of crisis, seems negligent.
Coming back to the marriage rule, the question was: Is it proportional to take our people’s citizenship to prevent foreigners from entering the country? Similarly, many questions arise now about what is more important: Public health or the economy?
The question of proportionality is ever so important as in the context of emergencies, and in itself raises the question, whether one person or one power, should be able to decide on our lives and liberties. However, there really is no way to avoid this. All we can do and should do is setting boundaries, like the 6-month rule set in place by the Swiss Parliament.
Second, evolution is key. Only adapting to new situations and implementing learnings from past mistakes can make a system safer from abuse. Looking at the evolution of the Swiss System over time, the learnings from the UBS bailout and other cases lead to improvements in our emergency legislation. Hence, what is to be hoped for after this crisis is the learnings every nation can turn into improvements in their respective systems.
COVID-19 is not only a threat to our health and healthcare systems, but it shows flaws of the very core of our societies and our legal systems, that have been there all along.
Hopefully, when the crisis is over, these revelations will lead to learnings, and these learnings will lead to improvements.