4. Constitutional Principles

Question 1

Define and explain the principle of Rechtsstaat

Answer 1

The goal of the principle is to limit the power of the state by law in order to protect individuals from the arbitrary exercise of authority It is divided into 3 branches (art. 5 cst.):

1. Legislature
2. Executive
3. Judiciary All 3 branches aim to limit the power of the other 2.

Question 2

Explain the concept of Rechtsstaat in the formal sense

Answer 2

Describes the type of state where everything is limited by law

1. All activities of the state shall be based on and limited by law (Art. 5 cst.)
2. Division of powers
3. Independent judiciary as a control mechanism
4. Important legal rules must be enacted in the form if federal statute by the federal assembly (art. 164 p. 1 cst.)
5. Federal statutes are a subject to optional referendum (art. 141 p. 1 lit. a cst.)
6. International law (art. 5 p. 4 cst.)

Question 3

Explain the concept of Rechtsstaat in the substantive sense

Answer 3

Formal sense is complemented by the substantive sense ensures:

• freedom
• equality
• safety Promotes principle of social justice as it promotes individual freedom

Question 4

Name the classic constitutional principles and explain what is a constitutional principle

Answer 4

The principles guide government actions and are closely intertwined in the constitution

1. Principle of Rechtsstaat
2. Principle of federalism
3. Principle of democracy
4. Principle of social justice They cannot be found explicitly in the constitution and cannot be directly relied on

Question 5

What’s the difference between Rechtsstaat and the rule of law?

Answer 5

Both:

• consider the members of state authority and society to be equally subject to publicly disclosed legal norms and
• concern with imposing effective limits of governing authority
• safeguard rights and liberties of citizens
• are open-ended concepts and subjects to constant debate and changing in order to meet the unstable political environment

Rule of law articulates 3 principles:

1. Absolute supremacy of law as opposed to arbitrary power
2. Equal subjection of all ordinary law as administered by courts
3. Protection of citizens’ freedoms by ordinary law rather than abstract written constitutional declarations

Rule of law focuses on importance of fundamental right guaranteed in ordinary law and their protection in due processes before courts

Rechtsstaat focuses more on static understanding of law and its realisation in a legal system

Question 6

Explain the principle of legality

Answer 6

The principle demands that all state action is to be based on and limited by law (art. 5 p. 1 cst.). The state must be bound by legal rules in general and abstract nature (unlimited nr. of people and cases)

Requirement of a legal rule:

• A legal rule is generally applicable, i.e. to an indefinite number of individuals and abstract, i.e. to an indefinite number of cases.
• Equality before the law

Sufficient precision

• Legal rules must be formulated with sufficient precision to permit individuals to act in conformity with it.
• Legal certainty

Requirement of an adequate legal form

• Important legal rules must be enacted in the form of a statute by the legislature (subject to a referendum) (Art. 164 para. 1 Cst).
• Democratic legitimacy

Question 7

What are the different forms of legal norms and what are their characteristics?

Answer 7

1. Constitutional provisions (art. 140 p.1 lit. a cst./ art. 195 cst.):
   - take precedence over all other legal norms - approved through mandatory referendum
   - approved by majority of people and cantons
2. Federal statutes (art. 140 p. 1 lit. a, b cst.):
   - enacted by federal assembly
   - legally binding rules (unlimited nr. of people and cases)
   - subject to optional referendum
   - high democratic legitimacy
3. Parliamentary ordinances (art. 182 cst.):
   - enacted by federal assembly
   - legally binding rules (unlimited nr. of people and cases)
   - not a subject to a referendum - less democratic legitimacy
   - may also be issued by federal council
4. Federal decrees (art. 163 p. 2 cst.):
   - “simple federal decree”
   - not a subject to a referendum
   - does not encompass binding legal rules of general and abstract nature
   - deals with specific decisions (eg. Validity of a popular initiative)
   - subdivision on whether or not an optional referendum can be requested

Question 8

What is the process and what are the most important provisions regarding federal statutes?

Answer 8

1. Legislation (art. 164 p. 1 cst.)
2. Consultation procedure (art. 147 cst.)
3. Parliamentary committee makes adjustments and recommends it to the parliamentary chamber
4. Publication in federal gazette
5. Optional referendum (art. 141 p. 1 lit. a cst.)
6. No need for majority of cantons

Question 9

What is an emergency legislation?

Answer 9

Not possible to wait before new law enters into force (art. 165 cst.)

The decree must be:

• urgent
• aimed to achieve specific goals

Question 10

What are the most important provisions regarding federal decrees? Provide examples of federal decrees.

Answer 10

Decrees are acts of the parliament that do not embody legal rules. Federal decrees can be used in case of:

• change of territory between cantons (art. 53 p. 3 cst.)
• optional referendum (art. 141 p. 1 lit. c cst.)
• no reference to form of the decree (art. 163 p. 2 cst.)

Examples:

• decisions on validity of popular initiatives (art. 173 p. 1 lit. f cst.)
• determination if expenditure of the confederation (art. 167 cst.)
• election of the federal council (art. 168 cst.)

Question 11

What are ordinances?

Answer 11

They cover all the legal rules not enacted in the form of constitutional amendment or a federal statute.

• regulate internal organisation of the respective authorities
• legally binding rules (unlimited nr. of people and cases)
• not a subject to a referendum
• adopted ba state authorities (usually the executive branch)
• can also be adopted by the federal assembly (art. 163 p. 1 cst.) or the federal supreme court

Question 12

How can you delegate the legislative powers to the Federal council or Federal administration? When is the explicit delegation required?

Answer 12

The legislative powers may be delegated through federal statutes unless this is excluded by the constitution (art. 164 p. 2 cst.)

An explicit delegation is required when an ordinance is to supplement a statute.

The delegation must comply with requirements:

1. It is not excluded by the constitution (art. 164 p. 2 cst.)
2. It has to be based on statutory provision
3. It must be condifed to a subject matter defined exactly in the statute itself
4. The most important provision on the subject matter delegated must be encompassed in the statute itself- However, the degree to which it must determine the subject matter varies (depends on the subject and imporancs of the rules for individuals concerned)

However, no need for delegation if:

• the ordinances are to guide the application of the statute (can be based on government duty) (art. 182 p. 2 cst.)
• in case of threats to public order and security the federal council may issue ordinances directly based on the constitution (art. 185 p. 3 cst.)

Question 13

What is the hierarchy of norms regarding the domestic law?

Question 14

What is the hierarchy regarding the domestic law?

Answer 14

1. Federal Law
2. Cantonal Law
3. Communal Law

Question 15

Which prevails when there is a conflict between Swiss Domestic and International law?

Answer 15

It is a controversial subject. If there is such a conflict, the court will determine the provision of the domestic law so that it is compatible with international law.

• Federation must respect the international law (art. 5 p. 4 cst.)
• Federal supreme court is to apply both: federal statutes as well as the international law (ar. 190 cst.)
• They are equally binding
• Usually the determination takes place by which is younger