Gustav Vogt, Die Einsetzung eines eidgenössischen Verwaltungsgerichtshofes, Zeitschrift für Schweizerisches Recht (ZSR) 1897, pp. 821-829
Gustav Vogt – Einsetzung eines eidg. Verwaltungsgerichtshofes
Background
As outlined above, limiting legal protection against the Federal Administration to internal administrative appeals was no longer deemed satisfactory a short time after the Federal Constitution of 1874 entered into force. The paper cited below by Gustav Vogt, Professor of Democratic Constitutional Law at the University of Zurich and former editor-in-chief of the Neue Zürcher Zeitung, the country’s leading liberal paper, at the Lawyers Conference of 1897 is indicative of the initial ideas entertained respecting a path of instances with greater independence from of the Administration. Note that the proposal refers to administrative jurisdiction models in place in Germany, Austria and France. It reveals caution in endeavouring to adapt these models to Swiss constitutionalism, arriving ultimately at the acceptance of the proposal to have a judicial body integrated within the administration. The Lawyers Conference favoured a proposal to go a step further with the creation of an independent, autonomous administrative court. Pursuant to a unanimous resolution, the Federal Council was asked to draft a bill along those lines. As outlined above, this move was successful, although ultimately final powers over federal administrative matters were transferred to the Federal Supreme Court.
Summary
In his introduction the author observed that, in contrast to constitutional jurisdiction vis-à-vis the cantons, federal administrative jurisdiction is not segregated but organized as an independent function, applied and implemented by the Federal Administration. Under the Federal Constitution, “administrative disputes” are constitutional appeals to be adjudicated by the Federal Council and the Federal Assembly unless they fall within the jurisdiction of the Federal Supreme Court under the Federal Constitution of 1874. There is no judicial legal protection in place against acts of the federal administration. In this respect, Switzerland lags behind “most modern nations, our neighbouring states in particular”. In the author’s opinion, introducing the judicial hearing of cases against the administration does not impinge upon the jurisdiction of other courts. If a court for hearing public law cases were to be created, a different, specialised court equivalent to the Federal Supreme Court would have to exercise constitutional jurisdiction, especially because a judge is unable to master the application of all branches of the law with equal expertise, and new courts as well are created in other areas of law. Administrative law in particular requires specialized judges. The establishment of an administrative court does not compromise the powers of the Federal Council, particularly because the court would not be empowered to decide discretionary matters or review actes de gouvernement. The administration has an interest in compliance with the law, but in a dispute the Federal Council is both party and judge. If a court were to decide such disputes, the decision has higher credibility, shielding the administration from accusations of impropriety. Legal protection against the administration can be realized either by creating administrative courts or by means of a legal control within the administrative body of the Federation. The question regarding the way forward cannot be answered on the basis of theoretical considerations, but rather only by considering existing Swiss institutions. The German and Austrian administrative courts have jurisdiction in matters which in Switzerland fall within cantonal jurisdiction, thus creating a large, separate court would not be justified. In Germany too there is not yet an administrative court to hear cases regarding matters of the Reich. Instead, administrative review is granted to individual offices of the Reich, such as the Reich Insurance Office. A major legal reform should be sought in Switzerland and an independent court should be created with jurisdiction to hear constitutional law cases instead of the Federal Supreme Court. Out of geographical considerations alone this Court should have its seat in the capital of Bern, as the Federal Administration always has to be heard. The author ultimately supports the creation of a Federal Commission for Legal Matters, integrated within the Federal Administration, which would not require a constitutional amendment. This Commission could also be mandated by the Federal Council to assess legal questions, such as the interpretation of provisions of international treaties, and be involved in drafting legislation to secure high quality legislation which are responsibilities not entrustable to an independent court of law. The Conseil d’Etat, incorporated within the French state administration until 1872, also exercised judicial functions with great independence. The Federal Council can be expected, it is argued, to go along with the legal rulings of a Federal Commission for Administrative Disputes which the Council itself has elected. Alternatively, the possibility could be introduced to bring cases before the Federal Assembly.