Introduction

to Constitutional Law 1

Introduction to Constitutional Law
and Public International Law

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Prof. Dr. Patricia Egli, LLM (Yale)
2nd Semester (Assessment)

Agenda
Chapter E: Constitutional Principles........................................................................................................2
3. Democracy ..........................................................................................................................................3
a) Cases .............................................................................................................................. 3
b) Individual Questions ...................................................................................................... 5
4. Social Justice .......................................................................................................................................6
Chapter F: Parliament, Government and the Judiciary...........................................................................7
a) Cases .............................................................................................................................. 8
b) Individual Questions ...................................................................................................... 9

Mandatory Reading: EGLI, Introduction to Swiss Constitutional Law, Zurich/St. Gallen 2020, p. 61-108

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Introduction to Constitutional Law 2

Chapter E: Constitutional Principles
Learning Objectives

♦ Get an overview of the constitutional principles in Switzerland.

♦ Being able to identify and interpret the respective constitutional provisions.
♦ Know the characteristics of each constitutional principle, its functions and forms in detail.

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Introduction to Constitutional Law 3

3. Democracy

a) Cases

Case 1

Some political parties believe that popular initiatives conflicting with fundamental rights guaranteed
on international level (in particular in the European Convention on Human Rights) should not be
submitted to a popular vote.

a) Is this view consistent with the Constitution?

b) What are the advantages and disadvantages of such a proposal?

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Introduction to Constitutional Law 4


Example of an Exam Question

The Swiss People’s Party (SVP) launched a popular initiative with the title “Swiss law instead of
foreign judges (self-determination initiative)”. The popular initiative aims at amending Art. 5 para. 1
and para. 4 Cst, Art. 56a Cst (new), and Art. 190 Cst. The initiative has the following wording:
The Constitution shall be amended as follows:
Art. 5 para. 1 and para. 4
1
All activities of the state are based on and limited by law. The Swiss Constitution is the primary legal
source.
4
The Federation and the cantons shall respect international law. The Swiss Constitution stands above
international law and takes precedence over international law, subject to the mandatory provisions of
international law (ius cogens).
Art. 56a International Treaties
1
The Federation and the cantons do not conclude international treaties contradicting the Swiss
Constitution.
2
In case of a conflict, the Federation and the cantons provide for a modification of the international
treaty, if necessary for the termination of the respective international treaty.
3
This provision shall be subject to the mandatory provisions of international law (ius cogens).
Art. 190 Applicable Law
The Federal Supreme Court and the other judicial authorities apply the federal acts and international
law. International law is only applicable, if it has been approved by referendum.

Discuss the validity of the popular initiative “Swiss Law instead of foreign judges (self-determination
initiative)”. Explain your answer with reference to the relevant provisions!

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Introduction to Constitutional Law 5

b) Individual Questions

Question 1

Is the Swiss constitutional system a direct democracy?

Question 2

Are the following instruments provided for in the Swiss constitution?

! Constitutional referendum; international treaty referendum; legislative referendum;
! Constitutional initiative; legislative initiative;
! Recall of the Federal Assembly, the Federal Council, and the federal judges.

Question 3

What is a counterproposal?

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Introduction to Constitutional Law 6

4. Social Justice

Question 1

Do you see a connection between the elements of social justice and democracy in the Swiss
constitutional system?

Question 2

May the Federation enact a federal statute on primary school education based on Art. 19 Cst?

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Chapter F: Parliament, Government and the Judiciary
Learning Objectives

♦ Being able to explain the principle of division of powers and its implementation in the Swiss
constitutional system.
♦ Being familiar with the responsibilities of the Federal Assembly, the Federal Council and the
Federal Supreme Court, the organs’ election, the organs’ composition and the organs’
instruments.

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Questions Chapter F

a) Cases

Case 1

The National Council tables a motion demanding the creation of a new Department of Education and
Science. The Federal Council does not agree. Can parliament force the Federal Council to create such
a department?

Case 2

In view of the growing administrative tasks, the parliament wants to enact a new federal statute that
increases the number of Federal Councillors. Is this possible?

Case 3

a) The newly elected Federal Councillor X is a well-known lawyer. As his department is run very
efficiently, he plans to keep working as a lawyer on a part-time basis. Is this allowed?

b) Julia Meier is Swiss and lives in Berlin. She was elected National Councillor in 2015, although she
lives abroad. Is she eligible for election to the Federal Council?

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b) Individual Questions

Question 1

What are parliamentary committees and do they have legislative powers?

Question 2

Are the two members of the Council of States from the canton of St. Gallen obliged to vote according
to the views held by the cantonal parliament?

Question 3

Is Art. 171 Cst in accordance with the principle of division of powers?

Question 4

May the Federal Supreme Court annul an unconstitutional cantonal statute? May the Federal
Supreme Court annul an unconstitutional federal statute?

Question 5

Does the election of the federal judges by the Federal Assembly contradict the principle of the
independence of the judiciary?

Question 6

Discuss reasons for the limited constitutional review provided for in Art. 190 Cst.

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