Alfred Kölz, Neuere schweizerische Verfassungsgeschichte – Ihre Grundlinien in Bund und Kantonen seit 1848, Bern 2004 (excerpt: chapter Der Totalrevisionsversuch von 1872, subchapter Einführung der Verfassungsgerichtsbarkeit gegenüber den Kantonen – Reform des Bundesgerichts, pp. 575-580)
Alfred Kölz – Einführung Verfassungsgerichtsbarkeit gegenüber den Kantonen
Background
Swiss legal culture typically reflects the federate structure of the country. The 26 cantons exercise all rights not incumbent upon the Confederation. Under current law, legislation in the areas of civil and criminal law, including procedural law, are the responsibility of the Confederation, but the cantons have fundamental organizational responsibility for the courts of first and second instance with jurisdiction in these areas of law. Public-law legislation is the responsibility of the cantons unless jurisdiction over particular matters is conferred to the Confederation under the Federal Constitution. Here too, however, legislators can leave implementation and enforcement to the cantons. They are also responsible for appointing judicial authorities for public law disputes in their area of competence. Appeals against the decisions of higher cantonal courts in any matters can be filed with the Federal Supreme Court, as it is the highest court of law above the cantons, charged with ensuring the primacy of federal law over cantonal law and the uniform application of federal law. The Federal Supreme Court also rules on conflicts of jurisdiction between federal authorities and cantonal authorities, and on disputes between the Confederation and the cantons and between cantons. Performing these duties is the Federal Supreme Court’s critical function within the federacy. But the Federal Supreme Court does not review cantonal law from any standpoint other than whether it may violate federal or international law
Constitutional law also falls within the scope of federal law. The Federal Supreme Court’s constitutional jurisdiction over the cantons ensures and has ensured the rule of law in the cantons. As outlined in Part I A. 1.1 on the separation of powers and independence of the judiciary, the granting of constitutional complaints for the alleged violation of individual rights under the first Federal Constitution of 1848 was a thoroughly political move. The political authorities primarily protected liberal-minded individuals or groups against conservative cantonal authorities, thus enabling the liberal-radical content of the Federal Constitution to be enforced in all cantons. Principally for reasons of workload and despite democratic concerns, the Constitution of 1874 transferred powers from the Federal Council and Federal Assembly to the Federal Supreme Court to hear individual complaints over violations of certain constitutional rights. This ensured independent legal protection. Federal Supreme Court case law on constitutional rights has developed within the framework of this power thereby shaping Swiss legal culture (see Part II E.). Constitutionally, this was only possible within a framework including jurisdiction vis-à-vis the cantons. Thus, federalism is constitutive of the Federal Supreme Court’s jurisdiction on fundamental rights. In relation to the cantons, the Federal Supreme Court is the constitutional court in the full sense of the word. If the Federal Supreme Court finds that a cantonal norm violates federal law, the Court disapplies the norm or strikes it down within the framework of the abstract review of legal norms. At times the Court only hands down an appeal decision if non-application or repeal of the norm would cause disproportionate disadvantagement to the person or community concerned. This contrasts with the review of federal acts. The constitutionality of federal decrees (excepting federal laws) can only be reviewed in the case of application (incidental review of legal norms), while constitutional complaints against cantonal decrees (except cantonal constitutions) are admissible prior to specific applications (abstract review of legal norms).
Unlike the federal courts of first instance, the Federal Supreme Court does not exercise supervision over the cantonal courts. However, since a few years, the Court invites the superior cantonal courts to an annual Justice Conference to discuss issues of common interest, which are reported in the Federal Supreme Court’s annual report.
All of this has been the result of a long process. In the section following the author describes the parliamentary debates in the context of the 1874 constitutional amendment, addressing various aspects of the relationship between the Federal Supreme Court and the cantons. Interestingly, the author puts particular emphasis on considerations in relation to foreign legal systems. It emerges that constitutional law makers at that time came up with unprecedented, independent solutions that continue to inform Swiss legal culture today.
The significance of federalism in the case law of the Federal Supreme Court is presented in Part II E. on fundamental rights and Part II F. on federalism, citing other texts.
Summary
Despite democratic concerns, responsibility for hearing constitutional law appeals was transferred from the political authorities to the Federal Supreme Court mainly for reasons to discharge a heavy workload transgressing the capacities of a part time parliament. There was no theory behind this move, nor were European models adopted for constitutional complaints against the cantons. This solution was unique in Europe for almost half a century.
In relation to the transfer of the Confederation’s responsibility for realizing uniform civil and criminal law as well as procedural law, the question arose as to whether federal or cantonal courts should be responsible for hearing cases in those areas. The proposal to create federal courts of lower instance in the cantons for the application of federal law along the lines of the US model was rejected for being too complex and excessively encroaching on the competence of the cantons. The cantonal courts thus became responsible in addition for the application of federal law. The question as to whether the Federal Supreme Court should act as a court of appeal or court of cassation with regard to cantonal civil and criminal judgements was widely discussed. The French Cour de Cassation, familiar in Switzerland, remanded cases to another court in cases of overturning a judgement. This solution, tailored to the unitary state, was out of the question in Switzerland for reasons of federalism. Again., there were no existing multi-tiered models of civil and criminal federal jurisdiction for reference elsewhere in Europe. The motion that appeals against final judgements of the cantonal courts should generally be allowed on grounds of violation or incorrect application of federal laws to be enacted failed to secure a majority in Parliament at the time. It was left to the federal legislators to define the powers of the Federal Supreme Court after the enactment of the unified civil and criminal laws to enable it to ensure uniform application.