Alfred Kölz, Neuere schweizerische Verfassungsgeschichte – Ihre Grundlinien in Bund und Kantonen seit 1848, Bern 2004 (excerpts: chapter Die Versuche der Einführung einer Verfassungsgerichtsbarkeit gegenüber Bundesakten, pp. 821-829)
Alfred Kölz – Einführung der Verfassungsgerichtsbarkeit gegenüber Bundesakten
Background
As outlined in the text above, the revised Federal Constitution of 1874 gave citizens a right to appeal to the Federal Supreme Court against alleged violations of certain constitutional rights, and limited to appeals against cantonal decrees and decisions. Ever since politicians and academics have discussed the question of whether the Federal Supreme Court should be declared competent to review the constitutionality of legislative acts of the Federal Parliament (see Part I A. 3. regarding reviews of constitutionality of Federal Council decrees, Part I A. 4. regarding review of cantonal acts). The idea of introducing constitutional review over federal legislation has mostly been supported by the legal community, with differing emphases and often in reference to foreign systems. It has remained without success to date. The section below outlines the efforts made and the resistances encountered in an international context (regarding practical constitutional jurisdiction in case law, see Part II D. Regarding the influence of the ECHR on constitutional jurisdiction see Part II D., E. and I.).
Federal Supreme Court case law on the scope of its obligation to uphold federal laws has developed over the years. It is clear that the Federal Supreme Court must apply federal laws irrespective of their constitutionality. Initially, the Federal Supreme Court refrained completely from commenting on the constitutionality of federal laws. Over the years, great importance came to be attached to federal laws being interpreted so as to conform with the constitution as far as possible subject to the limits of clear wording and meaning of a given statute. More recently, the Federal Supreme Court has upheld the principle that the requirement to apply the law does not preclude judicial review. While bound by the statute, the Court can thus review the constitutionality of a federal law and request the legislature to remedy any identified constitutional non-conformity (examples: BGE 136 I 65, 131 II 710, 129 II 249; see Part I A. 2.4 on the role of the Federal Supreme Court in the legislative process and Part II D. on constitutional jurisdiction in case law). Whether or not a review is carried out depends on the circumstances in the individual case at hand.
Summary
The prevailing view in Parliament is that judicial power should not overrule legislative power. On this basis, and in view of the legislative referendum introduced in the Constitution of 1874, it seemed unthinkable that the constitutionality of federal laws which were subject to referendum and possibly approved by the people, eventually be reviewed by the Federal Supreme Court despite foreign models of constitutional jurisdiction being known in Switzerland, particularly the model of the American Supreme Court. Yet, when the scope of federal law and treaties was enlarged under the Constitution of 1874, a need for constitutional review of federal laws was first recognized in constitutional legal theory. Gustav Vogt did not fail to point out the difference vis-à-vis the US in his speech at the Lawyers Conference of 1890, noting that while the judiciary in that country had strong legitimacy deriving from the Kingdom of England, the old order was overthrown in France in 1789 and in Switzerland in 1874, and the courts’ conservative powers to preserve the old order was feared. But by the end of the 19th century, Vogt believed that the time had come after all to introduce constitutional review for federal laws. The view, however, was not adopted. For as long as the Free Democrats held an absolute majority in the National Council, they preferred the content and pace of progress to be exclusively controlled and determined by politics. Even the Social Democrats, who were successful in the elections from 1919, relied more on the instruments of direct democracy than on the courts. At the Lawyers Conference of 1934, Fritz Fleiner demanded (S.L.: then Professor of Constitutional, Administrative and Church Law at the University of Zurich) and William Rappard (S.L.: Professor of Public Finance at the University of Geneva and Swiss delegate to the League of Nations) – as had Zaccaria Giacometti the year before (S.L.: Fleiner’s successor at the University of Zurich shortly afterwards) – that there should be constitutional review over federal laws against the background that the Federal Assembly had adopted a series of unconstitutional decrees not subject to referendum in continuation of the war-time emergency legislation. However, a corresponding popular initiative seeking the introduction of judicial review over federal statues was clearly rejected in 1939: The people did not want “government by the judges”, as a court is much less subject to public control than parliament, and it was felt that the best protection against constitutional violations is to put power in the hands of the people. Furthermore, particularly in times of economic crisis it is critical to be able to take extraordinary measures quickly without having to follow regular constitutional procedures. With particular reference to rulings of the German Federal Constitutional Court, jurisdiction over the constitutionality of federal laws has again been a subject of discussion since the 1960s. The Federal Council took up the question in the context of the judicial reform brought by the amended Federal Constitution of 1999, but failed in the endeavour due to strong opposition by the National Council on the basis of democratic principles.