Thoughts on freedom, federalism and democratic participation

by Dr iur. Marianne Wüthrich

It’s amazing what you can hear these days. The Federal Council’s measures to contain the corona pandemic had been completely exaggerated and the lockdown was not even necessary, it had only damaged the economy and restricted the basic rights of citizens. While some complain about the “centralist seizure of power” in Bern, others are annoyed by the “patchwork carpet” that the once again increasingly federalist decisions are entailed. Parliament, too, is being reprimanded for having ended the spring session a week too early because of the pandemic that had broken out, leaving the executive branch in charge. And finally, the Swiss EU-turbos are seriously announcing that it has once again been shown that we are doing much better with, or even better in the EU.
 
In this confusion of voices and moods, it is advisable to keep a clear head.

Health first – Swiss economy will recover

The vast majority of people were very happy that the Federal Council, in the extremely difficult situation, took on its constitutional task of taking “measures for Switzerland’s internal security” (BV Art. 185 Paragraph 2). Today, the health-threatening situation has eased somewhat thanks to the temporary shutdown of parts of the economy, the tireless efforts of doctors and nursing staff, the level-headed behaviour of the population and the constant weighing up of the next steps by the Federal Council and its expert committees.
 
Afterwards it is easy to say that all these restrictions were not necessary. As a medical layman, I prefer to take note of the advice of experts that much about the virus is still unknown today, as well as their urgent recommendation not to let the obviously effective rules of distance and hygiene slide.
 
The economic damage caused by corona is certainly an additional heavy burden for many countries in the world, while Switzerland will be able to cope with it. For example, in a survey conducted by Swissmem (the Swiss Engineering, Electrical and Metal Industry Association), more than 70% of the companies stated that they expected a major decline in sales and orders in the current year, even after the end of the lockdown. Nonetheless, economic editor Lorenzo Bonati states in Radio SRF News: “Swiss industrial companies have so far shown resilience. There have been no mass redundancies such as in the USA, thanks in part to the instrument of short-time working. Many companies still have sufficient cash. Only just 10 % of the covid loans granted by the banks have so far gone to industrial companies.”1 If, as expected, incoming orders continue to stagnate in the second half of the year, there are still reserves.
 
Instead of complaining, we should rather think about how we can help other nations. This is what the Foreign Policy Committee (FPC) of the National Council, for example, is proposing to its Council in the June session for the current year. It is applying for a “supplementary credit for humanitarian aid” of CHF 100 million to the UN, the ICRC and other organisations for the fight against corona (motion 20.3131). Can it also be a bit more?

What was it with the free Swiss Confederates?

As a teacher of civics in Switzerland for many years, I had discussions with my vocational students from time to time: Permit requirements for demonstrations? Even a police ban on a demonstration for reasons of public safety? Where is the freedom of assembly, which is in the constitution? One of my students is particularly memorable. He announced on his 18th birthday: “From now on I only do what I want!” But after only ten minutes he complained because I had not given him a worksheet – he couldn’t stand not cooperating any longer.
 
After all, the freedom of the citizen in a direct-democratic state includes the knowledge and feeling that the rights of citizens are often connected with duties. This isn’t of course applicable to fundamental human rights: for example, the right to life is unconditional and mandatory. In order to protect this right for every individual, financial sacrifices are sometimes necessary, as many entrepreneurs and workers have had to experience in recent months.
 
The democratic participation of the citizens, on the other hand, is one of give and take. The right to co-determine cannot and must not be one-sided in direct democracy. If we want a new school building in the commune, we may have to be prepared to increase the tax base. Our local councillors, our governments in the cantons and at the federal level know that they cannot simply order us fellow citizens around and we must obey. Have you witnessed some of the Federal Council’s media conferences since the beginning of March (on screen)? The Federal Councillors confronted us – sometimes on a daily basis – from one moment to the next, gave brief information and asked for further good cooperation, and then gave the media people and the population (by telephone) plenty of time for questions and critical comments. As a citizen, I was happy to participate and to take responsibility. Not as a restriction of my freedom, but as an expression of freedom to be able to contribute on my own responsibility. It was about the common whole – the individual freedom to go shopping or to meet on the village square receded into the background for a while.
 
Besides, the freedom the old Swiss Confederates fought for was also not about personal freedom rights of the individual people. At that time people were not even aware of them. Rather, the farmers in Central Switzerland wanted to retain their freedom as a community and not submit to a foreign ruler nor recognise foreign judges.
 
Freedom in this sense is still central to the majority of Swiss people today. We do not want to become members of the EU or NATO, nor do we want to submit to a framework agreement dictated by the EU. So the mainstream media can use the corona pandemic for a long time to effusively thank Federal President Simonetta Sommaruga for the opportunity to exchange views with the ministers of the EU member states in recent weeks. It is followed by the obligatory saying: Now we see that Switzerland is dependent on the EU. Therefore, let’s lay out the red carpet for the Framework Agreement …2 As if Switzerland had not always been open to mutual exchange, mutual assistance and economic trade, but on an equal footing, as our forefathers in ancient and recent history have shown us. Neither Switzerland nor the EU member states need a centralist bureaucratic concept for this purpose, quite the contrary, as is evident in the current crisis situation.

Federalism a “patchwork quilt”?

While some fellow citizens have been ranting for weeks against the “centralist seizure of power” by the Federal Council, others (or the same ones?) recently have been outraged at the emergence of a “patchwork carpet”. What is meant are the different approaches of the cantons to the gradual reopening, for example of schools. Some started on 11 May with half-size classes, others in small groups with 1-2 hours of lessons per day, yet others with complete classes (subject to strict hygiene rules) and many other alternatives. And some people were already calling again for central uniform rules, although in the meantime major regional differences in the spread of the coronavirus had been observed.
 
This is how epidemiologist Marcel Tanner, member of the Federal Council’s scientific task force, assesses the current situation: “There is no longer any need for national uniform measures, especially since the differences between the cantons are sometimes great. Now the cantons must “[...] keep a close eye on the situation on the ground and quickly intervene locally if necessary”. Tanner adds: “We cannot afford a second, nationwide lockdown, both socially and economically, the damage would be fatal”. With the use of the newly available contact tracing and targeted containment measures of local outbreaks of infection, it is possible to keep infection rates low until a vaccine is available, says Tanner.3
  So let’s stick to the diversity of federal Switzerland and support the more affected cantons in the fight against the still dangerous virus as much as we can. What continues to apply to everyone is to observe the rules of distance and hygiene!

Swiss militia parliament concretely

A few words on the criticism of the National Council and the Council of States, which decided on 12 March, when the corona pandemic hit our country with force, to break off their spring session after two weeks. According to the critics, without a formal decision, Parliament had thus forced the Federal Council into a role that it should actually have played itself.
  Let us consider this accusation on the basis of the Federal Constitution to the end. First of all, the Swiss parliament, unlike most other European parliaments, is a militia parliament. It holds four three-week sessions a year and in the meantime meets in the various commissions to prepare the sessions and express its views on current issues. Specifically, dear critics: what should the two chambers of parliament have done in the third week of the spring session? Could they have debated and decided on the necessary steps for the coming months within five days in mid-March, when much was still unclear? A simply impossible task. Should they have given the Federal Council a power of attorney as they did before the Second World War? Heavens, no!
  According to the Swiss Federal Constitution, this is not even necessary. It is the task of the Federal Council to discuss and decide on the necessary measures to maintain internal order, as it has had to do on a daily basis at times (FC article 185 paragraph 2). In addition, article 7 of the Federal Act on the Control of Communicable Human Diseases (Epidemics Act) provides: “If an extraordinary situation so requires, the Federal Council may order the necessary measures for the whole country or for individual parts of the country.”
  In this sense, three professors of constitutional and administrative law at the University of Freiburg/Fribourg state: “In our opinion, the Federal Council has so far basically remained within the limits of its legal and constitutional powers.”4 They point out that the legislator is also free to strengthen its own possibilities of exerting influence and control in similar situations.
  Not to be forgotten: the health of the members of our National council and council of States must also be a concern for us. If there had been corona sufferers or even deaths in their cramped meeting rooms – unimaginable!
  It is also a fact that Parliament was always present in the background. On the one hand, all the parliamentary groups have backed the Federal Council and its powers to regulate the extraordinary situation. On the other hand, National Council President Isabelle Moret and President of the Council of States Hans Stöckli announced as early as 19 March 2020 that urgent committee meetings (for example of the finance delegation FinDel, whose approval is required for urgent loans from the Federal Council) would be held in compliance with the rules on distance, and that the extraordinary session would be prepared for early May. (“Swiss parliament remains capable of acting in the crisis”. Media release dated 19 March 2020)
  As soon as it was advisable from an epidemiological point of view, the commissions of both councils resumed their work. From 6 April, they worked through the Federal Council decisions of the last few weeks and prepared their special session on the corona pandemic (4 – 8 May 2020).
  Incidentally, the Federal Council was the first to ask Parliament to hold such a session and to decide on the motions and decisions of the executive power. The objection that parliament could not change much at all is justified. However, it is an indication of the good, friendly confederate cooperation that the members of National Council and Council of States have supported the decisions of the Federal Council with very clear majorities and thanked it for its great commitment.   •
 


1  Bonati, Lorenz. “Krise trifft Schweizer Metallindustrie schwer.” (Crisis hits Swiss metal industry hard.) Rendez-vous from 26 May 2020
2  see for example the Brussels correspondent of the St. Galler Tagblatt, Remo Hess, on 25 May 2020, under the significant title: „Fast eine Familie“ (Almost a family) and the lead “During corona, Bern and Brussels worked hand in hand. Now one hopes that this pragmatic spirit will live on a little longer.”
3  Fabian Schäfer. “Mini-lockdowns” against the virus.“ Neue Zürcher Zeitung from 23 May 2020
4  Stöckli, Andreas; Belser, Eva Maria; Waldmann, Bernhard. «Gewaltenteilung in Pandemiezeiten» (Separation of powers in pandemic times). Guest commentary in Neue Zürcher Zeitung of 26 May 2020

Summer Session from 2 to 19 June 2020: some important issues

mw. Legal basis for a proximity tracing system (urgent amendment of the Epidemics Act)

In the extraordinary May session, the National Council and the Council of States instructed the Federal Council to present a legal basis for the introduction of a contact tracing app that it plans to introduce. This instrument should further contain the coronavirus.
 
The app has recently been used on an experimental basis. It traces back who has been in contact with a person tested positive for the new coronavirus and informs those affected that they may have become infected, while maintaining their anonymity. The data is to be stored decentrally – and only as long as necessary – the use of the app is voluntary.
 
The Federal Council has already drafted the amendment to the Epidemics Act and the dispatch to parliament. Both Councils will debate it in the June session, decide on the amendment and – if approved – declare the law urgent. According to Article 165 paragraph 2 of the Federal Constitution, a federal law that has been declared urgent enters into force immediately; the referendum may be held subsequently.1
  High expectations are placed in the use of the Contact Tracing app, which will be fulfilled all the better if the highest possible proportion of the population is prepared to use the app.

Additional financing of CHF 14.2 billion for unemployment insurance (AlV)

The Federal Council is requesting this additional credit to the 20201 estimate from parliament in order to counteract the massive indebtedness of the unemployment insurance system resulting from the sharp increase in short-time working since mid-March. For the current year, the Confederation is to assume the costs of short-time working compensation for around 1.94 million employees (37% of all employees) in 190,000 enterprises. This is to prevent that in the difficult economic situation, the unemployment insurance premiums for 2021 would have to be increased by 0.3% in accordance with the debt brake.2 
  The high number of short-time workers shows that most entrepreneurs have done their utmost to avoid having to lay off their employees. Thanks to the short-time work compensation payments, numerous jobs were saved for the period after the reopening of the enterprises. This is a beneficial institution, which should be granted to employees in every country.

Economic consequences of the corona crisis (Postulate of the Council of States)

In the May session, the Council of States requested a report from the Federal Council “on the economic consequences of the corona crisis and lessons for the future”. The Federal Council has declared itself willing to accept the postulate and “to work out the economic consequences of this crisis in detail on the basis of the broadest possible data base [...]”.3
  What will be important for the future is above all to answer the question of the “medium and long-term lessons” that Switzerland and our authorities should learn from the crisis. This will certainly include improved security of supply, not only with medical supplies. We would do well to pay particular attention to this.

Extension of Swiss participation in KFOR (Kosovo)

The Swiss Army has been conducting military operations in Kosovo (Swisscoy) for 20 years. Swisscoy is used to demonstrate the alleged necessity of Swiss Army missions abroad. Although these clearly violate Swiss neutrality and could easily be replaced by civilian aid abroad, the Federal Council and the majority of parliament maintain that the Swisscoy deployment should be regularly extended. The Security Policy Committee of the National Council is therefore once again asking “[...] by 16 votes to 8 to approve the extension of the Swisscoy mission in Kosovo until the end of 2023 and an increase in the number of troops”. The only pleasing aspect is the justification of the minority motions: “A minority considers a military mission abroad by neutral Switzerland to be fundamentally wrong. In addition, the Swisscoy mission should not become a permanent mandate and must be terminated after 20 years on the ground. Another minority considers the use of military means to be inappropriate and calls for a strengthening of civil development cooperation”.4 
  Together with the SVP and other members of the Council who uphold Swiss neutrality, the many new green and green-liberal parliamentarians should actually succeed in obtaining a majority in favour of ending the military operations in Kosovo that are contrary to neutrality.

 


1  To be dealt with in the Council of States on 3 June, in the National Council on 8 June.
2  2020 estimate. Addendum IIa (20.042), to be dealt with in the National Council on 3 June, in the Council of States on 4 June.
3  Postulate 20.3132 to be dealt with in the Council of States on 8 June. For more details see Marianne Wüthrich “Everything is as it should be according to the constitution”. In: Current Concerns, No 9, 15 May 2020.
4  “Schweizer Beteiligung an der Kfor. Verlängerung des Swisscoy-Einsatzes” (19.082). Media release by the Security Policy Committee of the National Council dated 11 February 2020. To be dealt with in the National Council on 4 June, in the Council of States on 16 June.

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