Box 3.4 Direct democracy in situations of urgency and times of war

Decision-making in direct democracy takes time, and its results can remain uncertain. How can the Swiss government cope with these difficulties in times of economic crisis or war, when rapid decision-making is necessary?

We have to distinguish between two different mechanisms.

First, there is an 'urgency clause' in Article 89 bis (prior to 1949: Article 89) of the federal constitution. It authorises parliament, if immediate action is necessary, to adopt ordinances (Dringliche Bundesbeschlüsse) without a referendum. After excessive use in the 1930s the urgency clause was revised twice. A first amendment introduced in 1939 restricted the terms of 'urgency' and required the absolute majority of both chambers, while a second amendment in 1949 provided for time limits on urgency ordinances. Under these rules, all urgency ordinances of the Federal Council today are limited in time. If an ordinance remains valid for more than one year, it becomes subject to an 'abrogative referendum'. This means that the ordinance has immediate effect after its adoption, but in cases of successful (optional) referenda, the ordinance is abrogated after one year. The Federal Assembly can even adopt ordinances that are not compatible with the constitution. If this kind of urgent ordinance remains valid for more than one year, it becomes subject to an obligatory referendum which also has an abrogative effect after one year. Since 1949, therefore, direct democracy is no longer bypassed by the urgency clause, merely suspended for one year.

The last period of frequent use of the urgency clause was in the early 1970s, when the Federal Assembly used urgency ordinances to cope with economic and ecological problems. Criticism was made that the actual regulations still provide too much power to the Federal Assembly.³⁴ On the other hand it cannot be denied that legislation in direct democracy needs more and more time - thus often creating situations where 'normal', but urgently needed regulations have not passed the decision-making process.

In addition to the urgency clause used by the Federal Assembly, the Swiss parliament has delegated or recognised an emergency power of the Federal Council in times of war. These 'full powers' - not mentioned in the constitution but given to the Federal Council in 1914 and 1939 - comprise all measures necessary to ensure the survival of the population, notably the food supply. Using its 'full powers' during the Second World War, the Federal Council issued some 1 800 emergency ordinances, whereas the Federal Assembly, in the same period from 1939 to 1945 adopted some 220 laws and ordinances. The emergency ordinances of the Federal Council were subject to some control by parliament, but were not subject to referenda. There is no doubt that the Federal Assembly and the Federal Council would rely on the same procedures should war threaten again.

Sources: Jean-Frangois Aubert, Traite de droit constitutionnel suisse, (Neuchatel: Ides et Calendes, 1967/1982) nos 1122 sq; supplementary information from the author.