Alfred Kölz, Neuere schweizerische Verfassungsgeschichte – Ihre Grundlinien in Bund und Kantonen seit 1848, Bern 2004 (excerpts: chapter Aufbau des Bundesstaates, subchapter Justizfunktionen im jungen Bundesstaat, pp. 488-491; chapter Der Totalrevisionsversuch von 1872, subchapter Einführung der Verfassungsgerichtsbarkeit gegenüber den Kantonen – Reform des Bundesgerichts, pp. 575-580)
Alfred Kölz – Justizfunktionen im jungen Bundesstaat (pp. 488-491)
Alfred Kölz – Der Totalrevisionsversuch von 1872 (pp. 575-580)
Background
Switzerland has a system of separation of powers which goes back to the writings of the Enlightenment philosophers John Locke and Montesquieu. Legislative, executive and judicial powers are exercised by various state bodies that are separate in terms of personnel composition in order to limit their power. The Federal Supreme Court is the highest judicial authority of the Confederation. Influenced by the ideas of the French Revolution and the US Constitution of 1786, the first federal constitution of 1848 introduced and established separation of powers to a minor degree. Swiss peculiarities still exist today, which are described in this chapter. These peculiarities also characterize the interplay of powers, which finds itself in a certain tension with the independence of the judiciary and is indispensable in one form or another within the system of separation of powers and checks and balances. The federalist structure that characterizes Swiss legal culture can be understood as a vertical expansion of the doctrine of separation of powers.
Alfred Kölz explains the development of Swiss constitutional law in his history of modern Swiss constitutionalism. He places particular emphasis on elaborating the characteristic elements of Swiss constitutional law and the ideas of the French Revolution and of the United States of America that were taken up by Swiss constitutional legislators.
Summary
The Federal Constitution of 1848 only granted limited powers to the Federal Supreme Court. Its dependence on Parliament was considerable as a large proportion of the judges at the time were also members of the Federal Assembly. In both institutions, the term of office was only three years (re-election possible) and thus subject to political control. Citizens were entitled to lodge complaints, or an appeal under constitutional law for violation of the limited fundamental freedoms guaranteed by the Federal Constitution, namely equality of rights, political rights, freedom of establishment, freedom of religion and freedom of the press. However, the Federal Supreme Court at the time was not empowered to hear such complaints. This was the prerogative of the Federal Council and the Federal Assembly, the joint body of the house of representatives (Nationalrat) and the Senate (Ständerat). The idea of entrusting the protection of individual rights to political authorities originated in the French Revolution and was adopted by Switzerland. The Federal Supreme Court only had jurisdiction if a case was referred to it by the Federal Assembly. The practice of political authorities had a thoroughly political character in that the Federal Council and Federal Assembly mainly protected liberal-minded individuals or groups against conservative cantonal authorities. The powers granted to the political authorities were also motivated and justified by the fact that the Federal Supreme Court was only supposed to apply existing law, not making the law in situations where it still was unsettled.
The question of judicial powers was again discussed in the context of the Federal Constitution of 1874. In the Federal Assembly, the view was once again expressed that it is not the judiciary’s role to address public law, which was said to fall within the domain of governments and parliaments. The suitability of the politically constituted parliament for addressing constitutional law complaints was rarely put into question. There were no European models in existence for an individual constitutional complaint. Nevertheless, a majority agreed to the transfer of powers to the Federal Supreme Court due to the workload on complaints incurred. The General Assembly had to spend roughly a third of its time addressing appeals in constitutional law. Two limits were set on constitutional complaints: firstly, they could only be brought against acts of the Cantons, not of the Confederation. Secondly, the review of constitutionality of laws and treaties enacted by the Federal Assembly was explicitly excluded, reinforcing the predominance of democracy over the rule of law. Another new feature of the Federal Constitution of 1874 was that federal judges were no longer allowed to simultaneously sit as members of the Federal Assembly.
The development of the Federal Supreme Court through the agency of constitutional lawmakers demonstrates the difficulties Swiss democracy had in establishing an independent judiciary. Unlike in surrounding monarchies, there was no strong judicial tradition. To the cantonal supreme courts, created from 1830 onwards, juries and courts of cassation were added, based on the French model, as a democratic correction. Giving judges too much power was considered “monarchist” in France and Switzerland. From the perspective of Swiss Republicans, the American organization of the courts having constitutional jurisdiction and judges being appointed for life, had elements of the monarchic English court system. All in all, the separation of powers was rather alien to parliamentarians for a long time because of strong emphasis on the idea of democracy. For if people are sovereign, they do not need any guarantees vis-à-vis those whom they themselves elect and remove from office. Only in isolated cases was an effective counterweight to the Federal Assembly desired in relation to the growing expansion of the federal government’s legislative powers.