Switzerland – 2020 Review of Constitutional Law: Constitutional and Administrative Law amid the COVID-19 Pandemic

Abstract

When the coronavirus disease 2019 (COVID-19) reached Switzerland in February 2020, the Federal Act of 28 September 2012 on Combating Communicable Human Diseases (Epidemics Act, EpA)’ had been in place for more than four years. The EpA was subject to a referendum in 2013. 60% of the voters approved the bill. The EpA set a three-tier approach in place: An aggravation of the epidemiological circumstances leads, based on a respective decision by the executive branch of the federal government (Federal Council), to a transfer of governmental tasks and responsibilities from the cantons (constituent states) to the Federation (federal government) on the one hand and from Federal Parliament (legislative branch) to the Federal Council (executive branch) on the other hand. The more the epidemiological situation escalates, the more power is thus being concentrated in the Federal Council. In the ‘first wave’ of the pandemic, emergency loans to small and mid-size businesses were swiftly administered by Swiss banks, underwritten with a full credit guarantee on the amount by the federal government, based on a unique and effective public-private partnership. Despite severe restrictions of fundamental rights, courts have played a mere subordinate role during the pandemic. The ‘second wave’ of the pandemic, peaking in November 2020, led some of the shortcomings of Switzerland’s political system bare. Its alignment towards consensus and integration of linguistic, confessional, and socio-economic minorities within the country, as underpinned by the Federal Constitution and as a salient advantage of the Swiss political system, comes at the price of the diffusion of political accountability. Direct democracy, federalism, the separation of powers between Federal Parliament and the Federal Council as well as the collegial decision making and interaction within the executive branches at both federal levels (Federation, cantons) all provide politicians not only with loopholes to evade political accountability, but also rhetorical munition to shift blame onto other actors within the political realm.