Switzerland: The Government as Legislator in Direct Democracy – a New Boost for the Upgrade of Constitutional Jurisdiction at the Federal Level?

Abstract

In Switzerland, it was mainly the Governments on the federal and the regional level that enacted the measures to fight the COVID-19 pandemic in the form of ordinances. Consequently, the formal legislation by the Parliaments and the People suffered a considerable loss of importance. Inspired by the far-reaching judicial review through the Federal Tribunal regarding to ordinances released by the Cantons, the question of extending constitutional jurisdiction at the federal level moved into the focus of legal policy. The analysis of the first leading decisions by the Federal Tribunal and some cantonal courts concerning the enactment of ordinances shows, on the one hand, that the constitutional limits continued to have their effect during the pandemic. On the other hand, however, functional weaknesses became apparent, as judicial protection could hardly be obtained in time for structural reasons.