61340 Vorabseiten_e - Unabhängige Expertenkommission Schweiz

The Federal Assembly had granted the Federal Council extraordinary powers at
the start of the First World War. Moreover, in the 1930s, the two chambers of
parliament regularly issued Emergency Federal Decrees which ruled out the
option of a referendum and granted comprehensive powers to the Federal
Council. In 1931, for example, the Federal Assembly empowered the Federal
Council to restrict the import of goods and payment transactions. 6 The
Emergency Federal Decrees differed from the Plenary Powers Decree in several
respects, however: they did not generally preclude the option of a referendum,
they could not serve as a basis for unconstitutional ordinances, and they were
explicitly enshrined in the Federal Constitution.
Although government by executive authority from 1939 encroached massively
on the Swiss constitutional order, 7 its fundamental admissibility went largely
unchallenged in legal doctrine 8 between 1939 and 1950. Contemporary
positive constitutional law 9 or principles generally accepted as legal but not
affirmed in the text of the Constitution 10 were cited in justification. Only one
minority opinion held that government by emergency plenary powers was
unconstitutional and lamented the absence of any formal anchoring of the
Emergency Plenary Powers Decree in the Federal Constitution. According to
this legal opinion, «extra-constitutional emergency legislation» was justified
solely by political necessity. A key proponent of this academic opinion was the
Zurich professor of constitutional law, Zaccaria Giacometti, who strongly criticised
government by emergency plenary powers during and after the war: «This
undemocratic and anti-liberal system of government by emergency plenary
powers under which we live today is a politically expedient, provisional state of
affairs; it is thus an illegal bridgehead connecting liberal Switzerland with an
authoritarian and totalitarian country which is alien to her. This bridgehead can
either lead us back to the Federal Constitution – or it can take us towards a
monistic, totalitarian executive state». 11
Controversy over the Government by Emergency Plenary Powers
An interesting controversy arose between the Zurich-based professors of
constitutional law, Zaccaria Giacometti and Dietrich Schindler, on the
wartime emergency laws. This was initially conducted via the press and
attracted considerable attention in academic circles and at political level.
Giacometti took the view that since the emergency legislation was not based
on any relevant article in the Constitution, it «hung in the air» in constitutional
terms – in other words, it had no constitutional basis. To Giacometti,
this meant that the «normative will and thus the sense of legality were lost,
signifying the collapse of the state under the rule of law and the introduction
of an arbitrary regime». 12 As the Federal Constitution did not specifically
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