Jörg Paul Müller, Entstehung und Entwicklung der Grundrechte in der Schweiz, in: Oliver Diggelmann/Maya Hertig Randall/Benjamin Schindler (Eds.), Verfassungsrecht der Schweiz Vol. 2, Zurich/Basel/Geneva 2020, pp. 1167 – 1191
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Background
The text referenced above indicates that from the very beginnings of the Federal Supreme Court’s jurisprudence, fundamental rights were on the one hand understood as defensive rights against the state but also attributed a constitutive effect, on the other hand. The recent paper by Jörg Paul Müller, the country’s leading constitutionalist, published in 2020 focuses on the changing understanding of the function of fundamental rights since the middle of the last century, as reflected in Federal Supreme Court rulings. The text also discusses developments in Switzerland with reference to the international context. It must be noted that the Federal Supreme Court regularly refers to the author’s publications in its opinions on landmark rulings. The author has written seminal theoretical and practical works on fundamental rights.
Summary
By way of introduction Jörg Paul Müller states that the rights and freedoms are the Constitution’s answer to demands for freedom which run through the whole of history. The protection of fundamental rights anchored in the constitutions and embedded in the transatlantic concept of the constitutional state and the rule of law establishes the prime legitimizing foundation of the modern pluralistic constitutional state. For Switzerland too the impetus came from the French Declaration of Human and Civil Rights of 1789 and its North American models, though this fact was often concealed. More recently, the development of Swiss fundamental rights has been influenced in particular by the European Convention on Human Rights. Through this convention, Anglo-American traditions such as the emphasis on due process and procedural rights, the principles of acts of habeas corpus and the importance of case law was received in Swiss law in recent periods since the end World War II. From the constitutional case law of the new German Federal Constitutional Court, the radiating effect of fundamental rights into private and criminal law and the recognition of the state’s duty to protect deployed a significant impact on Swiss law. The lack of a fully developed constitutional review in regard to federal laws today is partly compensated for by the the guarantees of the European Convention for the Protection of Human Rights (ECHR) as a matter of international law directly applicable in Swiss law, as well as by the principle of interpretation in accordance with fundamental rights and constitutional law. However, conflicts still exist between democratic fundamental rights based on the majority principle and the protection of classical fundamental rights. The responsibility for respecting fundamental rights lies with Parliament, and thus ultimately with the voters. The author raises the question of whether they are not overburdened with this responsibility.
A Swiss peculiarity is the development of unwritten fundamental rights in the constitutional rulings of the Federal Supreme Court from 1959 to 1998. After the codification of fundamental rights in the Federal Constitution of 1999, this development came to a standstill, but may resume under the new constitution in response to challenges yet unknown. Other Swiss peculiarities include the concretization of the principle of equality in terms of a prohibition of arbitrariness as a prime fundamental right of humans, and the interpretation of norms of competence in terms of individual claims and thus fundamental right entitlements.
Currently, the primary challenges to fundamental rights lie in the areas of migration and digitalization. Regarding migration, fundamental rights can only be recognized by national or international courts on a case-by-case basis, while the overarching issues have to be addressed by legislation on the basis of their strong democratic legitimacy. International cooperation is essential to this effect as issues cannot be settled and solved in isolation any longer.
The author subsequently focuses on the changing perceptions and understanding of the function of fundamental rights. While the significance of fundamental rights initially lay in defending against excessive statal intrusion and influence, over time the constitutive perception and understanding of fundamental rights assumed a key role. Fundamental rights thus have become a set of comprehensive design principles for the entire state and legal system in Swiss legal theory and court rulings since the mid-20th century. The idea is expressed very clearly, as compared to other constitutions, in Article 35 of the Federal Constitution: “Fundamental rights must be upheld throughout the entire legal system.” (official translation). The Federal Supreme Court recognized early on that the courts also have to defend fundamental rights where they are endangered by the gaps of power among private persons and operators, establishing so called third-party effects of fundamental rights. The state must contribute to the upholding of fundamental rights in all its activities, including civil and criminal justice. As early as 1890, the Federal Supreme Court upheld a farmer’s complaint against a neighbouring marksmanship club for excessive firearms noise on the basis that this represented an unreasonable encroachment on the farmer’s fundamental property rights. Fears of the recognition of a “direct” horizontal third-party effect, along the lines of an opinion represented in Germany, were caused by the wording of a 1985 ruling on the issue whether a strike potentially legal under the constitutional right to strike could justify unilateral termination of a private-sector employment contract. The author addresses the question as to whether or not the issue of horizontal third-party effect has any bearing beyond the generally recognized constitutive effect of fundamental rights. The state furthermore not only has a duty to respect, but also a duty to protect, as the state may violate fundamental rights by failing to protect them. Thus in a 2012 ruling the Federal Supreme Court recognized that a foreign national was entitled to residency under immigration law who cannot be expected to remain in a marriage with a violent husband just in order to retain legal residency. Fundamental rights entail specific, justiciable or programmatic obligations to protect. The programmatic content of fundamental rights is primarily the responsibility of the legislature, but in individual cases the judiciary equally is in a position to derive and grant legal protection. In one ruling, a disabled individual was granted social security benefits to enable the person to exercise freedom of establishment. The aforementioned problem of third-party effects can also be understood as a problem of the state’s duty to protect. However, the author is not aware of a particular ruling by which directly enforceable protection between private parties was accorded independently of a corresponding statutory norm. If civil and criminal courts too are obliged to uphold fundamental rights, this leads to increasing conflicts between the fundamental rights of individuals. In such complex constellations of fundamental rights, the interests of the parties involved have to be weighed and balanced against each other. This is referred to in constitutional theory as practical concordance. For example, in a 2001 ruling the Swiss Federal Supreme Court weighed the various fundamental rights issues in play between organizers of a demonstration and affected third parties (pedestrians, shopkeepers, etc.) when authorizing a demonstration at the World Economic Forum (WEF) in Davos. Fundamental rights in relation to each other have become an increasingly complex issue as the state has outsourced state functions to private entities and privatized previously state-run services (postal services, telecommunications, etc.). The author believes the question of practical concordance in proceedings before the ECtHR is still unresolved because both parties to the domestic court proceedings are not involved in proceedings before the Strasbourg Court.
In a modern, pluralistic constitutional state with a society that is neither ethnically, culturally nor politically homogenous, respect for the intrinsic value of every individual amounts to the very unifying bond. In the author’s words, fundamental rights have to be rooted in society to keep them from being sacrificed in day-to-day politics, and at the same time they mean “the freedom to cast off outdated restrictions and create new and shared values for organizing society. They are thus simultaneously a stabilizing factor for a society based on the rule of law and a guarantee of the possibility of societal development and renewal.”