Constitutional law

Question 1

Definition of Constitution

Answer 1

A conclusion is a set of fundamental principles & rules according to which a state is governed, constituting the State and also defining the nature, function, and organization of a state

Question 2

Constitution: formal sense

Answer 2

The Constitution in the formal sense encompasses all the legal provisions enacted in the special enact procedure for a constitutional amendenment.

Question 3

Constitution: Substantive Sense

Answer 3

The Constitution in the substantive sense encompasses all essential legal principles concerning the nature of the State and its relation with individuals.

Question 4

Functions of the Constitution

Answer 4

1. Order and organization
2. Limits of Powers and guarantees of Freedom
3. Creation and direction

Question 5

Constitutional principles

Answer 5

Principle of Rechtstaat, federalism, democracy & social justice

Question 6

which are the 2 premises (general 2 basic assumptions)

Answer 6

Lex derrogat posterior legi priori: the most recent law prevails over the older provision
Lex derrogat specialis legi generali: the more specific takes precedence over the more general

Question 7

what is Federalism?

Answer 7

A federal system is a composite structure of two or more orders of government combining federal shared-rule and self-rule of the constituent political units. It is composed by a Federal authority and constituent political units, called e.g. cantons or states

Question 8

The Cantons — Participation at Federal level

Answer 8

there are three tools:

• Mandatory referendum (art. 140 para. 1 Cst) –> all constitutional amendments, the membership of an organization for collective security or supranational community, and other legal acts listed in 140 require the majority of people and the majority of cantons’ approval.
• Optional referendums (art 141, para 1 Cst vote of the people when 8 cantons request so (or 50k signatures)
• Pop. initiative A canton has the right to submit initiatives to the Federal parliament in the form of a petition (art 160)

Question 9

Federal Guarantee of the Cantonal Constitution Requirements

Answer 9

The requirements are listed on art. 51 para 1. and 2 Cst and are the following: For one side they have to be consistent and compatible with federal law and international law and to have a democratic nature; respecting the principle of division of powers, approved by a cantonal parliament approved by people and mandatory consti. referendum and constit. initiative.

Question 10

How and what types of extent of Competency exist?

Answer 10

1. Comprehensive — may enact on any matter
2. Fragmentary — only authorized to regulate a fragment
3. Framework — the detailed regulations for the Cantons
4. Promotion — support and encourage efforts in are<s where cantons are primarily responsible

Question 11

How and what types of effect of competency exist?

Answer 11

1. Subsequently derogating effect (almost all)
2. originally subsequent effect (rare only:
3. Parallel effect (e.g. universities, cinemas)

Question 12

Direct Democracy

Answer 12

People decide on policy questions directly; all eligible citizens directly influence on de political decision-making . In the ideal form of direct democracy, the Parliament does not exist

Question 13

Representative democracy

Answer 13

Citizens influence only in the election of the representatives in the government (government oficials) which represents people. The people therefore do not generally decide on political questions. The most famous are presidential and parliamentary democracy.

Question 14

Semi-direct democracy

Answer 14

This democracy form is a representative democracy with direct democracy tools. In general, Is the Parliament the one deciding on the political decisions but citizens have access though tools where they can directly influence politics e.g. referendum or initiatives.

Question 15

What is the first requirement for the validity of a popular initiative?

Answer 15

1. Consistency of form:
   in order to approve a partial revision of the Cst, it has to take the form of a specific draft or a general proposal of the provisions proposed (Art 139 para 2 Cst)(art 194 para 3 Cst) This consistency is only achieved when is couched exclusively in one of this forms; a mixture is not valid. In the case at hand, ….

Question 16

What is the second requirement for the validity of a popular initiative?

Answer 16

2. Cohesion of subject matter: (arta 139. para 3 Cst) Art 194 para. 2 Cst
   There is consistency of subject matter when there is an intrinsic connection between the individual parts of the initiative (Art 75 para. 2 PoRa). In the case at hand….

Question 17

What is the third requirement for the validity of a popular initiative?

Answer 17

3. The initiative must be in compliance with mandatory provisions of international law i.e. ius cogens (Art. 139 para 3 Cst) , (194 para 2)
   it is generally considered as ius cogens concepts such as the prohibition of slavery, torture, genocide, war crimes, and principle of non-refoulment.

Question 18

What is the fourth requirement for the validity of a popular initiative?

Answer 18

4. The initiative must be possible to implement:
   If the initiative calls for a matter that is impossible to execute, it must be declared invalid. If the initiative is simply legally impossible to implement, but otherwise feasible then it must be declared valid.

Question 19

Which is the article range of social meausures competed by the Federation)

Answer 19

art 111-117.

Question 20

Organization of The Federal Assembly

Answer 20

(art. 148 para. 1 & 2)
It is the highest authority and it is composed of a Bicameral parliament with equal standings, the National Council (art. 149) and the Council of States (art. 150).
Powers — art. 163 et seqq
Finance powers — art. 167
Elections — art. 168
and so on…

Question 21

Name the four requirements for a fundamental right to be affected

Answer 21

(Art. 36 Cst.)
1. Is the fundamental right guaranteed on national or supranational level?
2. Is the scope of the fundamental right affected?
3. Is the victim beneficiary of the fundamental right?
4. Is the claim filled against and addressee of the fundamental right?

Question 22

What is the principle of Rechtsstaat?

Answer 22

The main idea behind the Rechtsstaat (the law-based-state) principle is to limit the power of the state by law in order to protect individuals from the arbitrary exercise of authority.

Question 23

Name the four requirements for the restriction to be lawful

Answer 23

• Is there a legal basis for the restriction? (art. 36 para 1. Cst)
  * The restriction must be determined by a legal rule
  * Every restriction must be described in a general (indefinite no. of cases) and abstract (indefinite no. of cases) legal provisions.
  * The legal rule must be formulated with sufficient precision.
  Take into account —> general police clause and its 4 requirements
  –> The legal norm must conform to a certain legal norm depending on the significance of the restriction. A significant restriction must have its bases on either federal or cantonal level
• Is there a public interest or the need of the protection of the fundamental rights of others justifying the restriction?
• The restriction must be proportionate to the goal pursued according to art. 36 para 3. Cst.
  * Is the measure adequate?
  * Is the measure necessary?
  * Is the measure proportionate in relation to the public interest pursued?
• The essence of the fundamental right at stake must be respected according to art. 36 para. 4 Cst.