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Old 18.06.2012, 23:14
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Does Switzerland need a constitutional court?

A hypothetical question.

The Swiss people gave themselves a constitution - they wanted human dignity protected, basic rights guaranteed and the law of nations respected. If a cantonal law violates the constitution the "Bundesgericht" will decide about the validity. But there is no higher instance for federal laws.

In the last years, proposals have been accepted in referendums that violated the law of nations which is protected by the Swiss constitution (think minarets, lifelong custody of sex offenders, deportation of criminal foreigners). Like all state organs, the legislative body has to adhere to the constitution. But what to do in case of a conflict?

Time to let the constitutional court decide, no?
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Old 18.06.2012, 23:43
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No, as the US constitutional court shows it is yet another body driven by its political agenda or ideology. Not that direct democracy is perfect, but it is a necessary lesser evil.
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Old 18.06.2012, 23:45
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Re: Does Switzerland need a constitutional court?

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A hypothetical question.

The Swiss people gave themselves a constitution - they wanted human dignity protected, basic rights guaranteed and the law of nations respected. If a cantonal law violates the constitution the "Bundesgericht" will decide about the validity. But there is no higher instance for federal laws.

In the last years, proposals have been accepted in referendums that violated the law of nations which is protected by the Swiss constitution (think minarets, lifelong custody of sex offenders, deportation of criminal foreigners). Like all state organs, the legislative body has to adhere to the constitution. But what to do in case of a conflict?

Time to let the constitutional court decide, no?
The Bundesgericht IS the federal constitutional court and above both the legislative and the executive
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Old 18.06.2012, 23:52
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Re: Does Switzerland need a constitutional court?

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The Bundesgericht IS the federal constitutional court and above both the legislative and the executive
Nope. Wiki says:

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Das Bundesgericht ist unter anderem zuständig zur Beurteilung von Beschwerden wegen Verletzung verfassungsmässiger Rechte durch Rechtsakte von Bundes- oder Kantonsbehörden. Im Unterschied zu den obersten Gerichten anderer Staaten ist das Bundesgericht kein umfassendes Verfassungsgericht. Artikel 190 der Bundesverfassungbestimmt: «Bundesgesetze und Völkerrecht sind für das Bundesgericht und die anderen rechtsanwendenden Behörden massgebend.» Daher prüft das Bundesgericht die von der Bundesversammlung erlassenen Gesetze de facto auf ihre Übereinstimmung mit der Bundesverfassung oder der Europäischen Menschenrechtskonvention. Es muss aber trotz festgestellter Verfassungswidrigkeit ein Bundesgesetz anwenden. Dieses Anwendungsgebot gilt nur für Bundesgesetze, nicht aber für weitere Rechtserlasse des Bundes (z. B. Verordnungen) oder der Kantone, soweit ihre Verfassungswidrigkeit nicht durch ein Bundesgesetz legitimiert ist.
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Old 18.06.2012, 23:53
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Re: Does Switzerland need a constitutional court?

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The Bundesgericht IS the federal constitutional court and above both the legislative and the executive
Nope: The federal court has to apply federal law in its rulings. It is not a constitutional court.

Last edited by SamWeiseVielleicht; 18.06.2012 at 23:53. Reason: Zymogen was way faster.
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Old 19.06.2012, 00:54
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Re: Does Switzerland need a constitutional court?

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Time to let the constitutional court decide, no?
Depends.

There are two different cases to consider.

A) A federal law violates the constitution

In this case I am in favor of a constitutional court. Currently, a federal law can blatantly violate the constitution yet it still remains effective and the Federal Supreme Court can do nothing about it. I would like a similar rule as with cantonal laws where the Court can nullify legislation that violates the Federal Constitution.

B) A federal law or the constitution itself violates international law

In this case I am rather against it, because it undermines the democratic right of the Swiss citizenry to decide freely.
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Old 19.06.2012, 01:06
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Re: Does Switzerland need a constitutional court?

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Nope. Wiki says:
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Nope: The federal court has to apply federal law in its rulings. It is not a constitutional court.
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Depends.

There are two different cases to consider.

A) A federal law violates the constitution

In this case I am in favor of a constitutional court. Currently, a federal law can blatantly violate the constitution yet it still remains effective and the Federal Supreme Court can do nothing about it. I would like a similar rule as with cantonal laws where the Court can nullify legislation that violates the Federal Constitution.

B) A federal law or the constitution itself violates international law

In this case I am rather against it, because it undermines the democratic right of the Swiss citizenry to decide freely.
Alright, kein umfassendes Verfassungsgericht , and has to apply existing federal law. But what law do "constitutional courts" elsewhere apply ?

I think that Switzerland does NOT need a separate Federal Constitutional Court, but that the Bundesgericht should get more powers
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Old 19.06.2012, 07:22
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Re: Does Switzerland need a constitutional court?

The Swiss people have the power to decide if the constitution they have themselves put in place is being observed faithfully or not. The real danger is when it becomes accepted doctrine that if the Verfassungsgericht (or Supreme Court, for an existing example) fails to strike down a law, that means the law is understood to be constitutional and government officials can then implement it with impunity. In most cases in practice, nothing could be further from the truth, but with such a court being the "final decider", the people are cut out of that decisionmaking process, except to somehow work to get rid of those judges. (?)

With small political divisions and high mobility between them, arrogant local government can be easily sidestepped by moving out of their jurisdiction, instead of homogenizing the system under a central authority which is more remote and much more difficult to "vote with one's feet".
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Old 19.06.2012, 18:33
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Re: Does Switzerland need a constitutional court?

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Alright, kein umfassendes Verfassungsgericht , and has to apply existing federal law. But what law do "constitutional courts" elsewhere apply ?
I'm not sure I understand what you're asking. Cantonal/state law as well as federal law are subject to constitutional courts elsewhere. They check upon request whether a law conforms to the Constitution.

Here, the federal court/ Bundesgericht can only state that a certain federal law violates the constitution but it cannot force the legislative body to revise it. This is different for the cantonal laws who have to be revised if the Bundesgericht decides that they're not in compliance with the Constitution.
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Old 19.06.2012, 19:02
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Re: Does Switzerland need a constitutional court?

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Depends.

There are two different cases to consider.

A) A federal law violates the constitution

In this case I am in favor of a constitutional court. Currently, a federal law can blatantly violate the constitution yet it still remains effective and the Federal Supreme Court can do nothing about it. I would like a similar rule as with cantonal laws where the Court can nullify legislation that violates the Federal Constitution.

B) A federal law or the constitution itself violates international law

In this case I am rather against it, because it undermines the democratic right of the Swiss citizenry to decide freely.
The Swiss people still decide freely on referendums but there is a higher instance with the power to nullify what "the people" have voted for. That's the whole point of having a constitutional court - forces you to play by your own rules.
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Old 19.06.2012, 19:13
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Re: Does Switzerland need a constitutional court?

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I'm not sure I understand what you're asking. Cantonal/state law as well as federal law are subject to constitutional courts elsewhere. They check upon request whether a law conforms to the Constitution.

Here, the federal court/ Bundesgericht can only state that a certain federal law violates the constitution but it cannot force the legislative body to revise it. This is different for the cantonal laws who have to be revised if the Bundesgericht decides that they're not in compliance with the Constitution.
You precisely answered your question. What I would like to see, is the the Bundesgericht CAN force legislative or executive to revise any law contradicting the constitution or treaties ratified by Switzerland.
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Old 19.06.2012, 19:32
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Re: Does Switzerland need a constitutional court?

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...
Here, the federal court/ Bundesgericht can only state that a certain federal law violates the constitution but it cannot force the legislative body to revise it. This is different for the cantonal laws who have to be revised if the Bundesgericht decides that they're not in compliance with the Constitution.
So in principle, that means the supreme law of the land are the federal laws and not the constitution. In that case, Switzerland would be more like the UK than the US. Perhaps that's good as I wouldn't like to see "constitutional idolatry" around here.
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Old 19.06.2012, 19:34
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Re: Does Switzerland need a constitutional court?

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The Swiss people still decide freely on referendums but there is a higher instance with the power to nullify what "the people" have voted for. That's the whole point of having a constitutional court - forces you to play by your own rules.
The court cannot overthrow laws but it can rule on their interpretation. That is a fine difference, and one that preserves the democratic will of the people rather than trampling on it.
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