Structural Principles of the Constitution Flashcards
What does the guarantee of the existence of the cantons mean?
The guarantee of the existence of the cantons is a guarantee for the cantons as
members of the federal state (Art. 53 para. 1 Cst) as well as a guarantee of the number of the cantons (Art. 1 Cst)
Which procedure is applicable for the merger of the canton X with the canton Y?
Whenever the existence of the cantons is concerned, the procedure in Art. 53 para. 2 Cst must be observed. In such a case, the concerned population, the concerned cantons, the Swiss population and the majority of cantons have to agree to the modification.
When is a Popular Initiative valid?
The validity of a popular initiative depends on four requirements Art. 75 PoRa):
i. Consistency of form: A popular initiative demanding a partial revision of the Swiss constitution can take the form of either a general proposal or a specific draft of the provisions proposed (Art. 139 para. 2 Cst; Art. 194 para. 3 Cst). The consistency of form is met when the initiative is couched exclusively in the form of a general proposal or of a specific draft provision; a mixture of different forms is not allowed (Art. 75 para. 3 PoRA)
ii. Cohesion (or consistency) of subject matter: (Art. 139 para. 3, Art. 194 para. 2 Cst). There is consistency of subject matter in a popular initiative when there is an intrinsic connection between the individual parts of the initiative (Art. 75 para. 2 PoRA).
iii. The initiative must be in accordance with mandatory provisions of international law, the ius cogens (Art. 139 para. 3, Art. 194 para. 2 Cst. It is generally accepted that ius cogens includes the prohibition of genocide, slavery, torture, wars of aggression, and the principle of non-refoulement.
iv. Lastly, it must be possible to implement the initiative (feasibility). If the initiative calls for a matter that is impossible to execute, it must be declared invalid.
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What is the main idea behind the Rechtsstaat principle?
The main idea behind the Rechtsstaat principle is to limit the power of the state by law in order to protect individuals from the arbitrary exercise of authority.
Trentino is a representative democracy. Is it legally possible to stay a representative democracy as a new Swiss canton and not to establish any instrument of direct democracy in the canton’s constitution?
Art. 51 para. 1 Cst requires a cantonal constitution to be democratic.
This means that the constitution must be approved by the people, i.e. there must be a mandatory constitutional referendum.
In addition, it must be possible to revise the constitution, if the majority of those eligible to vote so request. That means that there must be a possibility for a constitutional initiative.
In sum, it is not possible to stay a representative democracy as a new Swiss canton.
Due to Trentino’s number of citizens, the new canton would be one of the biggest in Switzerland. Therefore, Ugo Rossi wants to know whether it is possible for the new canton to have more than two Councillors of States in order to be a more powerful canton? Explain your answer with reference to the relevant provisions!
According to Art. 150 para. 2 Cst. [0.5 Point], each canton elects two representatives in the Council of States.
Another rule is only provided for the cantons of Obwalden, Nidwalden, Basel-Stadt, Basel-Landschaft, Appenzell Ausserrhoden and Appenzell Innerrhoden which each elects just one representative.
Thus, it is not possible for the new canton to have more than two Councillors of States.
If the new canton would want to have more than two Councillors of States, Art. 150 para. 2 Cst would need to be amended
If Trentino insists on having three Councillors of States, which instrument of the semi-direct democracy may be launched to realize this demand? Which form would you recommend and why? Explain your answer with reference to the relevant provisions
It is possible to request a partial amendment of the constitution by a popular initiative [0.5 Point] according to Art. 139 Cst.
The initiative can be submitted in two different forms:
1. a general proposal [0.5 Point] or 2. a specific draft.
The form of a specific draft is recommended. It allows to ensure that the draft submitted to the people and the cantons reflects the will of the authors correctly in the accurately phrased specific draft. Most popular initiatives are formed in a specific draft.
The Swiss legal system is based on different classic constitutional principles. Define the principle of social justice as understood in the Swiss constitutional conception. In addition, give two examples of constitutional provisions aimed at realizing the principle of social justice in the Swiss legal system and explain their function.
The principle of social justice aims at establishing just and equal conditions within a society, particularly between the various social classes.
However, the Swiss constitution is reluctant to outline a specific clear cut concept of social justice or to denominate Switzerland explicitly as welfare state
Examples:
The preamble of Cst: It declares inter alia the strength of the people is measured by the well being of its weakest members. However, the preamble is far too vague to confer enforceable rights on individuals.
Art. 2 Cst: The provision describes the aims of the Swiss Confederation, including the promotion of common welfare and the equality of opportunity among the citizens. However, the aims set out in Art. 2 Cst are far too vague to confer enforceable rights on individuals.
–> extensive list in exam
Can a National Council addition to his current post as National Councillor, also act as a member of the cantonal government of the Canton X?
As Art. 144 Cst and Art. 14 ParlA do not exclude the possibility to act as a member of a cantonal government, it may be argued e contrario that this
political mandate is compatible with the membership in the National Council.
A Canton wants to abolish all communes: Will the amendment of the cantonal constitution of Canton X be guaranteed by the Federal Assembly?
According to Art. 51 para. 2 Cst, the Federation shall guarantee a cantonal constitution provided it is not contrary to federal law.
* The Federal Constitution guarantees in Art. 50 para. 1 Cst the autonomy of the communes in accordance with cantonal law. Therefore, the autonomy of the communes is only guaranteed within the boundaries of the canton’s legal system.
* In the case at hand, the Canton X is free to abolish all communes and to confer the communal tasks to the cantonal administration with the objective to have only one administrational level.
* Therefore, the Federal Assembly will guarantee the correspondent constitutional amendment of the Canton of X
What the four fundamental principles of the Swiss Constitution?
-Principle of the Rechtsstaat
-Principle of Federalism
-Principle of Democracy
-Principle of Social Justice
–> they guide all state actions and influence numerous constitutional provisions.
What are the formal elements of the Rechtstaat?
-Principle of Legality
-Division of powers
- judicial review
What are the substantive elements of the Rechtsstaat?
-Social objectives
-Fundemental rights
