Law and democracy in emergency situations

Federica De Rossa - Director of the USI Law Institute, Assistant professor of Economic law at the USI Faculty of Economics, and Deputy judge and the Federal Supreme Court of Switzerland - presents in a short video a few essential aspects related to the subject of law and democracy in "coronavirus times". What measures can the Confederation and the cantons take to ensure their democratic legitimacy?

In recent weeks, federal and cantonal authorities have taken a series of measures to tackle the crisis. The uniqueness of these measures lies not only in their impact, but also in the fact that they are adopted by governments, which thus enjoy full powers in this emergency situation, while parliaments are no longer playing their usual role.

"The Federal council has never intervened in all areas of our economic and social life since the Second World War. Every State governed by the rule of law is based on the fundamental principle - related to the separation of powers - which is the principle of legality, according to which any government activity and in particular any measure restricting our individual freedom must be based on a law adopted by a parliament and submitted to an optional popular referendum", explains De Rossa.

Today we find ourselves in an exceptional legal regime, where the emergency law takes over and can upset certain mechanisms, but which has a foundation in our Federal Constitution, in Art. 185, para. 3. "This article - explains De Rossa - gives the Federal Council the power to issue decrees to deal with serious threats to the security of the country. In particular, in the event of a pandemic, the measures are based on a specific law, the  Epidemics Act, which in Art. 7 authorises the Federal Council to decree the extraordinary situation and to take all necessary measures for the country, for a limited period of time".

At the same time, however, these decisions drastically restrict a number of our fundamental freedoms - individual, of movement, economic, and of assembly - thereby sparking disputes about their sufficient democratic legitimacy. In May, the Parliament will meet in an extraordinary session to examine the measures taken by the government to deal with the Covid-19 emergency.