COVID-19 – a task which can only be solved together

For the second time, Swiss voters are voting on the COVID-19 Act. After the Federal Council had to take extensive measures in spring 2020 to contain the pandemic and to mitigate its effects with emergency law according to Article 185 of the Federal Constitution, the National Council and Council of States passed the necessary legal basis on 25 September 2020. Against this, the referendum was adopted, the people approved the COVID-19 Act on 13 June 2021 with about 60 percent. On 28 November, we will now vote on the changes that Parliament passed on 19 March 2021, against which again the referendum was adopted. This revised draft law was also declared urgent by Parliament, which means, that it came into force immediately (on 20 March), but is only valid for a limited period, basically only until 31 December 2021.
  Art. 6a (Certificate) is valid until 31 December 2022 (voting booklet, p. 46). The proposal’s main matters in difference are to be examined in the following.

In order to get attuned – we should not let our thoughts be muddled by the partly ferocious debate in the voting campaign – a statement from Federal Councillor Cassis, head of the Department of Foreign Affairs (FDFA) and medical doctor: “Most countries in the world have the problem that they have too few vaccine doses for their citizens. With us it’s the other way around. When I explain this to my foreign counterparts, they just shake their heads. They say: ‘We would like to have your problems.’ We should be aware that what causes incredibly emotional conflicts in us, from an outside perspective, above all are luxury problems. In many countries people die due to a lack of free beds in hospitals or vaccine. And we argue about whether it is reasonable to show a certificate when visiting a restaurant. What can I say?”¹

Does Parliament pass over too much power to the Federal Council?

This question has been accompanying the debate since the beginning of the pandemic. In times of crisis, it is essential that the executive can take action quickly and at any time. Parliament can only pass the relevant laws afterwards.
  The opponents of the referendum speak out against the “expansion of power by the Federal Council”, which is given “control over the entire life of the citizens” (voting booklet, p. 35). Among other things, they mean the following provision of the draft law:

Art. 1a: The Federal Council defines the criteria and benchmarks for restrictions and easing of economic and social life. In addition to the epidemiological situation, it also takes into account the economic and social consequences.

Recently, four experts in constitutional law from the Universities of Zurich and Basel commented from a legal point of view in the “Neue Zürcher Zeitung” on the question of whether Parliament should be allowed to delegate such far-reaching legislative powers to the Federal Council.
  According to Andreas Kley (University of Zurich), the parliament’s extension of the Federal Council's emergency powers violates Article 164 (“All important legislative provisions shall be enacted in the form of a federal law”) and Article 185 paragraph 3 of the Federal Constitution (emergency powers article, on which the Federal Council can directly rely to enact ordinances in the event of serious disturbances to internal or external security). “The Federal Assembly is obliged to establish these rules itself. It may not transfer this work to the Federal Council,” says Andreas Kley.²
  Felix Uhlmann, also an expert in constitutional law at the University of Zurich, agrees with his colleague that he describes the COVID-19 -law “largely [as] a collection of authorisations” and therefore “constitutionally problematic”. In view of the crisis situation, Felix Uhlmann “does not see these [constitutional] deficiencies as so serious that one has to reject the entire law – especially since it would make coping with the pandemic much more difficult”. He reminds that in this time of the crisis the uncertainties are still high. According to Art. 1 Para. 2bis of the draft, all measures taken by the Federal Council must be proportionate and continuously evaluated by Parliament and the Federal Council.³

Proportionality principle in times of crisis

In a reply to Andreas Kley, two emeritus professors of public law, Georg Müller and René Rhinow, reject the claim of non-constitutionality. “The legislator does not violate the constitution when it transfers additional powers to the Federal Council to regulate certain issues [...] in a law that primarily serves to legalise emergency decrees.”⁴ Nor does the law give the Federal Council a free hand, but rather lays down precise “principles for the exercise of the powers transferred to the Federal Council”. Like Felix Uhlmann, they are referring primarily to Article 1 para. 2bis and para.3.

Art. 1 para. 2bis: The Federal Council shall be guided by the principles of subsidiarity, efficacy and proportionality. It shall aim for the shortest and least severe restriction of economic and social life possible, by ensuring that the Confederation and the cantons exhaust all the options provided by precautionary measures, testing and vaccination strategies and contact tracing beforehand.
Para. 3: It shall consult the cantonal governments and the umbrella organisations for the social partners when drawing up measures that relate to their responsibilities.

It is good if we voters are aware that the Corona pandemic is not a Sunday stroll. We will best cope with the difficult situation together if everyone pulls along to the best of their ability. Of course, the executive may not do what it wants, but it must do something in times of crisis. Müller/Rhinow also argue along these lines: “Measures to contain the pandemic must be adapted frequently and quickly to developments in the epidemiological situation. The legislative process takes too long to meet these requirements. Therefore, the legislator must give the Federal Council the opportunity to react flexibly to changes in the situation by ordering measures in the form of ordinances”.

Main target COVID certificate

The most fiercely fought by the opponents is the COVID certificate, whose safety and formal criteria are regulated in Article 6a (vaccination, test and recovery certificates). The tone of the referendum committees is correspondingly sharp: “Indirect compulsory vaccination”, “discrimination”, “splitting society” and the like can be found among their “arguments”. The emotional nature of the referendum campaign is also shown by the untrue claim that the new provision on the contact tracing system (Article 3 b) would result in the “complete digital surveillance of all citizens”: “This would bring Chinese conditions to Switzerland.” (Voting booklet, p. 34) This is absurd, because the use of a contact tracing app is voluntary.
  Dario Meili is writing his dissertation on the topic of discrimination through the certificate obligation.⁵ He points out that not every unequal treatment is discrimination. Although the certificate requirement constitutes unequal treatment, it does not constitute discrimination within the meaning of Article 8(2) of the Swiss Federal Constitution. According to Article 36 of the Federal Constitution, restrictions on fundamental rights require “a legal basis” and must be “justified in the public interest or for the protection of the fundamental rights of others”. These criteria are fulfilled in the case of the certificate requirement. Because everyone has the choice to be vaccinated or tested if they want to visit a restaurant, one cannot speak of discrimination, argues Dario Meili. There is no obligation to obtain a certificate for basic services (shops, public transport), and, therefore, no de facto obligation to vaccinate. The young author’s conclusion is remarkable: “Opponents of certificates who demand unrestricted basic rights neglect the fact that their freedom to move everywhere without a certificate affects the freedom of all others.”
  Felix Uhlmann, professor of constitutional law, also does not consider the certificate requirement to be discriminatory. “The dispute over the concept of discrimination obscures one’s view of the essential question: vaccinated and recovered persons pose less danger, therefore they are treated differently. This is not only constitutionally permitted but required.” The certificate requirement is also “certainly the milder measure compared to nationwide closures”. Finally, he recalls “how complex it is to draft a law in such a way that equal treatment is guaranteed in all conceivable cases. And when the situation is constantly changing, this is particularly difficult [...]”. On the other hand, in the case of the 2-G rule (no certificate for tested persons), which is also already being discussed in Switzerland, Felix Uhlmann pleads for “such a decision to be made by the legislator”.⁶

Conclusion

For us Swiss, who sit in the honey pot compared to many other people in the world, it would be advisable to put our own wishes aside now and then with consideration for our fellow human beings. It is part of man’s social nature that the individual’s desire for freedom finds its limit in the good of the community. Today, the majority of beds in intensive care units are occupied by the unvaccinated, even though the vaccine is delivered to one’s doorstep by a vaccination bus. Some cantons even organise night vaccination parties or pick people up by taxi – all free of charge, i.e., paid for with taxpayers’ money. Isn’t that absurd? •

¹ Gafafer, Tobias; Schäfer, Fabian. “Die Schweiz darf in der Europapolitik nicht noch einmal in die gleiche Falle tappen” (Switzerland must not fall into the same trap again in European policy). Interview with Federal Councillor Ignazio Cassis, in: Neue Zürcher Zeitung of 9 November 2021
² Kley, Andreas. “Der Bundesrat kann, kann, kann … Die Änderung des COVID-19-Gesetzes ist ein weiterhin verfassungswidriges Vorhaben” (The Federal Council can, can, can ... The amendment of the COVID 19 Act continues to be an unconstitutional project). Guest commentary in: Neue Zürcher Zeitung of 20 October 2021
³ Gerny, Daniel. Interview mit “Staatsrechtsprofessor Uhlmann zum COVID- Zertifikat: ‘Das Parlament hätte Leitplanken setzen müssen’” (Interview with “Constitutional law professor Uhlmann on the COVID certificate: ‘The parliament should have set guard rails’”) in: Neue Zürcher Zeitung of 6 November 2021
⁴ Müller, Georg and Rhinow, René. “Das COVID-19-Gesetz ist nicht verfassungswidrig” (The COVID 19 Act is not unconstitutional). Guest commentary in: Neue Zürcher Zeitung of 9 November 2021
⁵ Meili, Dario. “Die COVID-Zertifikatspflicht ist nicht diskriminierend.” (The COVID certificate requirement is not discriminatory.) ETH Zürich (https://ethz.ch/de/news-und-veranstaltungen/eth-news/news/2021/09/die-covid-zertifikatspflicht-ist-nicht-diskriminierend.html)
⁶ Gerny, Daniel. Interview mit “Staatsrechtsprofessor Uhlmann zum COVID- Zertifikat: ‘Das Parlament hätte Leitplanken setzen müssen’” (Interview with “Constitutional law professor Uhlmann on the COVID certificate: ‘The parliament should have set guard rails’”) in: Neue Zürcher Zeitung of 6 November 2021