Constitutional Law Flashcards

What is a constitution?

A set of fundamental principles and rules according to which a state is governed

What is constitutional law?

Basic principles and rules that define the nature, function and organization of a state

Hierarchy of legislation (highest to lowest)

Federal constitution → Federal statutes → Federal ordinances → Cantonal constitutions → Cantonal statutes → Cantonal ordinances → Legal acts of the communes

Constitution in the formal sense

All legal provisions enacted in the special enactment procedure of the constitution

Constitution in the substantive sense

All essential principles concerning the nature of the state and its relation to individuals

Functions of a constitution

Order and organization ( How the state is constituted, state organs and institutions, powers and functions, relationship between state organs); Limits of power and guarantees of freedom (Guarantees fundamental freedoms of individuals); Creation and direction (Basic substantive goals of the state and main direction for further state action)

Sources of constitutional law

The Federal Constitution of the Swiss Confederation of 18 April 1999; Public international law; Federal statutes; Customary law; Federal Supreme Court

Requirements of customary law

Evidence of a continuous, uninterrupted and coherent practice; An opinio iuris; A lacuna in the written law

Basic structural principles

Principle of the Rechtsstaat; Principle of federalism; Principle of democracy; Principle of social justice

Main idea of the Rechtsstaat principle

Limit the power of the state by law in order to protect individuals from the arbitrary exercise of authority

Formal elements of the Rechtsstaat principle

Principle of legality; Division of powers; Independent judiciary

Substantive elements of the Rechtsstaat principle

Fundamental rights; Social guarantees

Elements of the principle of legality

• Requirement of a legal rule à Equality before the law

o Generally applicable (indeterminate number of individuals)

o Abstract (an indeterminate number of cases)

• Sufficient precision à Legal certainty

o Formulated with sufficient precision to allow individuals to act in conformity with it

• Requirement of an adequate legal form à Democratic legitimacy

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

Steps for a total revision of the constitution (draw the scheme + list provisions)

Steps for the partial revision of the constitution (draw the scheme + list provisions)

Enactment of a federal statute (draw scheme + list provisions, 8 steps)

Overview of the Form of Legal Acts (draw table)

Lex posterior derogat legi priori

The most recent legal norm takes precedence over the older provision

Lex specialis derogat legi generali

A law governing specific subject matter overrides a law governing only general matters

National law vs international law (describe the relationship)

• Federation and cantons shall respect international law (Art. 5 para.4 Cst)

o Federal statutes and international treaties are equally binding for the courts.

o Normally no precedence of international law over domestic law in the constitution. Exception: ius cogens overrides national law (139 para.3, Art 194 para 2 Cst)

• If there is a conflict:

o Court will interpret domestic Swiss law in such a way that it is compatible with international law

o If this is not possible then different approaches are discussed

• Approaches:

o General approach: lex posterior rule applies

o Exception: Schubert Doctrine where the Federal Supreme Court ruled that the older statutory provision was to prevail if parliament had intentionally departed from the international treaty.

o Recent decisions: International human rights treaty provisions must prevail.

Interpretations of legal provisions:

• Grammatical: The wording of the term is examined

• Systematic: The systematic context of the term is examined

• Teleological: The purpose of a provision is examined

• Historical: The historical background is examined

What is a federal system and a federal state?

• Federal system: Composite structure of two or more orders of government combining federal shared rule and self-rule of the constituent political units

• Federal state: state with a federal organization, composed of a federal authority and constituent political units, called cantons or states

Criteria of statehood (and why Switzerland is a state, explain)

1) State populace: the cantons

2) States territory: the sum of the canton's territories

3) State authority: the independent supreme authority of the federal territory as expressed in the powers of the federal executive, legislative and judiciary

Three fields of cantonal autonomy

Tasks; Organization; Finance (Art. 47 Cst)

Federal guarantees

Guarantees the cantonal constitutions; Protects the constitutional order of the cantons; Guarantees the existence and territory of the cantons

Federal guarantee of cantonal constitutions

• Consistency with federal law (Art. 51 para. 2)

• Democratic nature (Art. 51 para. 1)

o Cantonal parliament elected by the people

o Principle of division of powers

o Mandatory constitutional referendum and mandatory constitutional initiative

Requirements for modification of the existence of a canton

o Concerned population

o Concerned cantons

o Majority of Swiss citizens and majority of cantons

Modification in the territory of cantons

o Concerned population

o Concerned cantons

o Approval of Federal Assembly in the form of a federal decree

Requirements for inter-cantonal boundary adjustment

o Treaty between the concerned cantons (+notification of the Federation) according to Art. 48 Cst.

o Procedure of approval by the Federal Assembly only if canton or Federal Council raises objections (Art. 172 para. 3 Cst)

Approval requirement for inter-cantonal boundary adjustment

Procedure of approval by the Federal Assembly only if a canton or the Federal Council raises objections (Art. 172 para. 3 Cst)

Distribution of competencies principle

The assignment of competencies in the Constitution is complete and conclusive

In the absence of specific authorization in the Constitution for federal competencies, the task remains within the residual power of the cantons

Art. 3 Cst and Art 42 para. 1

Comprehensive competency

the Federation may enact any legal regulation for any matter pertaining to the field it considers appropriate

"shall legislate" / "shall regulate" / "is responsible for" / "shall take measures" / "has the exclusive right"

Fragmentary competency

the confederation is only authorized to regulate a fragment of a subject matter, "may levy [up to X%]" / "may require" / "may collect"

Framework competency

Confederation sets skeleton rules only; cantons fill in the details, "shall lay down principles" / "shall set out principles"

Promotion competency

Confederation may only support cantonal efforts; cannot regulate the subject matter itself, "promotes" / "may support" / "may encourage" / "may assist"

Effects of competencies (3 effects)

• Subsequently derogating effect (standard cases)

• Originally derogating effect (rare cases), Art 58 Armed Forces

• Parallel effect (some cases)

Democracy and its main characteristics

Def: All state power is based on the will of the people

Main characteristics:

• Popular self-determination

• Public control over political power

Different types of democracy

Direct democracy

People decide on policy questions directly

All eligible citizens have direct and active participation in the decision-making

No parliament in ideal form