Urteil des Bundesgerichts vom 21. Juni 1978 i.S. Unité Jurassienne, Charpillod et Vecchi contre Conseil des 187 du Grand Conseil du canton de Berne (BGE 104 Ia 215); Urteil des Bundesgerichts vom 27. November 1985 i.S. X. gegen Kantonsgericht Appenzell I.Rh. (BGE 111 Ia 239)
Background
The Federal Constitution requires the cantons to adopt a democratic constitution. The cantonal constitutions must be approved by the Confederation. The Federal Assembly assumes the function to secure that cantonal constitutions in general do not conflict with federal law. The Federal Supreme Court, in turn, adjudicates particular disputes over violations of superseding federal law. If an appeal is filed with the Federal Supreme Court on grounds that a cantonal constitution or an official act based on a cantonal constitution violates federal law, the question arises as to whether the Federal Supreme Court may review conformity of the cantonal constitution with federal law after the Federal Assembly has carried out such a review before approving the cantonal constitution. The predominant view on the subject is that general review by a political body is qualitatively different from the review by a court, in particular the reviewing of an issue in a specific case. Although there is no corresponding requirement in the Federal Constitution, the Federal Supreme Court leaves the review of conformity of a cantonal constitution with federal law to the political authorities. The landmark Federal Supreme Court decisions summarized below however demonstrate a development to the effect that the Federal Supreme Court affirms its jurisdiction if the federal law in question was enacted after the approval took place by the Federal Assembly The Federal Supreme Court indicates that an appeal can also be filed if specific content of a federal legal norm derives from court rulings handed down after the cantonal constitution in question was guaranteed (e.g. BGE 121 I 138 E. 5c).
The ruling from 1978 summarized below was handed down in connection with the secession of the new canton of Jura from the canton of Bern between 1974 and 1978 through several referenda by the population of the future canton of Jura, voters of Southern Jura, remaining in the canton of Bern, voters of the new canton of Bern and all cantons comprising the entire Swiss population (https://hls-dhs-dss.ch/de/articles/007399/2019-09-19/)
Summary
BGE 104 Ia 215
The government of the canton of Bern set 26 February 1978 as the date for the amendment of the Constitution of the Canton of Bern, which had become necessary due to the secession of the new canton of Jura, among the voters of the new canton of Bern. The “Unité Jurassienne” movement and two individuals filed a complaint with the Federal Supreme Court, requesting that the proposed constitutional amendments and the schedule of the referendum on these amendments be struck down or to invalidate the referendum result if the constitutional amendments were upheld. The referendum was nonetheless held and the amendment adopted. The Federal Supreme Court refers to case law existing since 1891, according to which a complaint over a cantonal constitution cannot be filed with the Federal Supreme Court as the constitutional provision on the approval of cantonal constitutions by the Federal Assembly takes precedence over the Federal Supreme Court’s powers to review cantontal acts of law. In 1965, this case law was modified to permit the preliminary review of cantonal constitutions in specific cases. The case law precedent was widely opposed by legal scholars like Zaccaria Giacometti, an eminent expert on constitutional law. For reasons of legal certainty and to avoid commingling the powers of the national authorities, the Federal Supreme Court also refused to review a cantonal constitution before its being guaranteed by the Federal Assembly. The complainants in the case at hand had filed suit as well with the ECHR, so the Federal Supreme Court found that the Federal Assembly has to additionally review the cantonal constitution for conformity with the ECHR because the fundamental freedoms guaranteed by the Convention have constitutional status.
BGE 111 Ia 230
This decision was based on the fact that the Cantonal Court of Appenzell I.Rh. had rejected the request of a criminal defendant to hold a public hearing on the basis of the cantonal constitution. The defendant appealed to the Federal Supreme Court for breach of Article 6 ECHR. In its opinion the Federal Supreme Court opened with the observation that existing case law that the Court is not competent to review cantonal constitutions is nearly universally rejected by contemporary legal scholars. The Court left it open however “whether the case law referred to should be generally reviewed in view of the basis nearly unanimous and objectively weighty criticism”. The legal practice, it was outlined, is based on the fact that the Federal Supreme Court is not responsible for answering the same questions concerning breach of federal law that the Federal Assembly had previously addressed in the review process before pronouncing a guarantee. In the case at hand however, the Federal Assembly’s decision to grant the right of asylum dates from 1949, while the ECHR did not enter into force for Switzerland until its ratification on 28 November 1974. According to the legal summary document, the Federal Supreme Court clarified its opinion to the effect that a preliminary review of cantonal constitutional provisions for compatibility with the rights guaranteed under the ECHR and other federal laws can be requested by way of appeal if the law taking precedence was not yet in force at the time when the Federal Assembly approved the legal norm before the court. and therefore could not be examined and considered in the previous review. The Court then upheld the appeal because excluding the public from a criminal trial violated the ECHR without due cause.