Felix Uhlmann, Was tun eigentlich Verfassungsgerichte, wenn sie nicht zuständig sind? (Problemzonen verfassungsgerichtlicher Zuständigkeit), in: Andrea Good/Bettina Platipodis (Hrsg.), Herausforderungen zwischen Politik und Recht, Festschrift für Andreas Auer zum 65. Geburtstag, 2013, pp. 215 – 225
Felix Uhlmann – Problemzonen verfassungsrechtlicher Zuständigkeit
Background
The scope of the Federal Supreme Court’s powers to review the constitutionality of legal norms was not established in final form at the time when the Federal Constitution and the Federal Procedure Acts came into force. It developed over time in securing access to justice. The paper by Felix Uhlmann, Professor and Head of the Centre for Legislation Studies at the University of Zurich, emphases this fact and that the Federal Supreme Court itself is an actor in determining its own jurisdiction. The author illustrates this with reference to recent landmark decisions in which the Federal Supreme Court can be seen expanding its powers of review. The paper outlines the reasons for this evolution, and expresses the view that legal scholars should be involved in the elaboration of the arguments for and against such an expansion.
Summary
The author opens with the observation that neither the Federal Constitution nor the more recent Federal Procedure Acts define the scope of the constitutional jurisdiction of the Federal Supreme Court without ambiguity. Over the years, the Federal Supreme Court itself has thus been a key player in determining its own constitutional powers of review. By recognizing unwritten constitutional rights the Court not only created new and substantial constitutional guarantees, but also expanded the scope of its constitutional control. The cantons are primarily affected. In relation to federal laws, which constitutionally are binding for the Federal Supreme Court, emphasis has shifted in that the Federal Supreme Court today reviews federal laws as to their compatibility with the guarantees under the ECHR. In the literature it is pointed out that such review is solely based on the superiority of international law and that they are not anchored in national law. The criticism is expressed that it is sometimes arbitrary which fundamental rights are not guaranteed under international law and which are, thus are subject to judicial review by the Federal Supreme Court. Moreover, fundamental rights under the Constitution are thus additionally subject to interpretation by international treaty bodies. The Federal Supreme Court also departed from its formerly strong orientation on the approval of cantonal constitution by the Federal Parliament and instead reviewing amendments as their compatibility with federal law subsequently enacted. Finally, the author sees the interpretation of norms in conformity with the constitution as “a mitigated form of constitutional review” as the Federal Supreme Court bases its own constitutional understanding on the interpretation of the norm concerned.
On the basis of three recent Federal Supreme Court decisions, the author points out constitutional issues. The Federal Supreme Court upheld an appeal against the result of a federal referendum (Corporate Tax Reform, BGE 138 I 61 of 20 December 2011), although the Federal Supreme Court is not entitled to review voting commentary by the Federal Council, the Federal Council had already upheld the voting result and this resolution was not contestable by appeal to the Federal Supreme Court. The Federal Supreme Court invoked the constitutional guarantee of political rights which protects the free formation of voters’ views on a topic and and unimpaired casting of votes. The Court addressed the substance of the case, stating that the official information provided by the Federal Government was misleading, unobjective and thus unconstitutional. The Court affirmed its competence to review the matter on various grounds. But the Court refrained from invalidating the vote in the case at hand, thus there was ultimately no conflict of competence among federal authorities. (S.L.: In BGE 145 I 207 of 10 April 2019, the Federal Supreme Court for the first time annulled a federal referendum due to blatant irregularities, the voting result was close and legal certainty was maintained) The author also mentions two landmark rulings of the Federal Supreme Court, in which, due to the lack of a valid object of contestation (BGE 136 II 415: Agreement between a cantonal public prosecutor’s office and a private euthanasia organization) or in the absence of a right of appeal (BGE 136 II 383: Cantonal appeal of a tax decision by the cantonal administrative court) the Court reviewed the substance of the appeals on the grounds that the validity of a contested decision should be considered ex proprio motu. The author doubts the lawfulness of such reviews. In BGE 135 II 426, the Federal Supreme Court addressed a supervisory complaint against a first-instance court of the Confederation in which the latter had overturned two practically identical cases and an ordinary appeal to the Federal Supreme Court was rejected on procedural grounds. It was left open whether the consistency of the rulings could be challenged in a supervisory complaint. What the cases described have in common is that there is “a feeling, a need, an urge for a ruling” on the part of the Federal Supreme Court in view of its core mission in the areas concerned of providing legal protection and further developing the law into a consistent body.
In the author’s opinion, the discourse on the expansion of constitutional review should not be limited to the issue of reviewability of federal laws, for, as the examples show, federal jurisdiction develops in other areas as well. The Federal Supreme Court should disclose its reasoning for affirming its jurisdiction in cases of doubt. In the past, opinions on judgements have often relied upon the parties’ need for legal protection and the right to judicial review. Less frequently they invoked the functions of ensuring legal consistency and of further developing the law. Only rarely the Court invokes an interest to avoid an excessive case load. The author concludes that legal theory should provide answers in favour and against the expansion of constitutional review.