publicationPublished on 11.06.2024

Three publications as part of the SNSF research project

At the end of May and beginning of June, three scientific contributions were published as part of the SNSF research project «Overcoming crises: Strengthening Democracy, Human Rights and Federalism» within the respective research areas – rule of law and democracy, fundamental and human rights, and federalism.

As part of the research field «Rule of Law and Democracy», Luis A. Maiorini's article «Strengthening Parliament in Times of Crisis – Appraisal of the ParlG Revision after the Covid-19 Crisis» is dedicated to the strengthening of the parliament’s role in future crises. After a description of the amendments made to the Parliaments Act in the wake of the Covid-19 pandemic, he concludes that the expansion of parliamentary instruments alone is insufficient for strengthening the role of parliament in crises. Instead, the application of these instruments depends on political consensus and resources. Furthermore, he emphasizes the relevance of the committees and the necessity of their early consultation. Only the ability of the committees to act enables the Parliament to establish a functioning Council and to apply the instruments created in the first place. Finally, the author rounds off his article with appreciative comments on the amendments to the Federal Act on the Consultation Procedure, the digitization of the parliamentary operation, and the question of resources, and synthesizes his findings in a summary enriched with his own revision proposals.

In the article «Judicial control of emergency law – Effective legal protection in crisis management» from the research field «Fundamental and Human Rights», Johanna Jean-Petit-Matile critically examines the judicial control of emergency law. In particular, she looks back at the Covid-19 pandemic and uses the experience gained there to show the gaps in legal protection during crises, identifies corresponding challenges and at the same time presents suggestions for improvement and adjustments to judicial protection for a crisis-resilient constitutional state. Specifically, she recognises three proposals for the expansion of constitutional jurisdiction. The first proposal takes up various parliamentary initiatives that suggest the possibility of challenging emergency ordinances issued by the Federal Council. The analysis shows that this would lead to an overall improvement in legal protection, but that there are still many unanswered questions regarding its concrete form. As a second proposal, she considers an urgent procedure to the Federal Supreme Court in the event of invoking Art. 185 para. 3 Cst. to counterbalance the restriction of important fundamental rights with a form of judicial review that, while subsequent, is nonetheless swift. Finally, she emphasises the repeatedly discussed possibility of comprehensive constitutional jurisdiction. However, due to the current political situation, it is unlikely that this will be introduced in the near future. Overall, the author regrets that none of the proposals for improving judicial protection by the courts have been implemented to date.

In their article «Cantonal emergency law systems – A comparative overview of intra-constitutional emergency law in the cantons», Stefanie Rusch and Bernhard Waldmann examine the colourful diversity of cantonal emergency law systems in the research field «Federalism». In a comparative study, the authors analyse the constitutional emergency law and emergency clauses on the basis of systematics, prerequisites for application, scope of competence and constitutional-democratic compensation mechanisms and attempt to identify corresponding similarities and differences – not least against the background of the Covid-19 pandemic and other crisis situations. In a concluding assessment of the cantonal standards, they outline the essential elements of emergency law systems that enable both rapid and sufficiently legitimised action in extraordinary situations. Firstly, the authors point out that dispensing with a system of emergency law at cantonal level is difficult to reconcile with the rule of law and is essential for reasons of democracy and legal certainty. In addition to the mandatory anchoring at constitutional level, the relationship between the emergency law and emergency clauses and any special statutory authorisation clauses as well as the general police clause must be clarified. Although it would be advisable to refrain from excessive regulatory activity, the scope of the powers to take measures and the constitutional and democratic corrective mechanisms would have to be enshrined in the emergency law and state of emergency clauses. Ultimately, the greatest difficulty would lie in resolving the tension between a density of norms that takes account of the specific characteristics of a crisis on the one hand and the necessary legal certainty on the other.