- Eva Maria Belser, Professor of Public Law, Co-Director of the Institute of federalism, University of Fribourg / CH
- Astrid Epiney, Professor of European, International and Public Law, President of the University of Fribourg / CH
- René Pahud de Mortanges, Professor of Law, University of Fribourg / CH
In the current debate about a legislative and constitutional reform in Israel, proponents of the reform have made certain claims on elements of the Swiss legal/constitutional order that, in their view, provide support for key elements of the planned legislative reform. In what follows, we show that these claims are presented without the necessary context of the whole Swiss legal and constitutional system and its practice. With this system being taken into account, the comparisons drawn between the elements of the Swiss legal system and the planned legislative reform lose their persuasive force.
Claim 1: Switzerland functions perfectly well as a democracy without granting its highest court with the authority to void legislation.
Contextual considerations:
• Switzerland has a written federal constitution which provides for an extensive human rights catalogue and divides power between the federal and cantonal tier. The constitution is binding on all state authorities and can only be amended by a popular referendum accepted by the majority of the people and the canton.
• The Swiss Federal Tribunal can indeed only pronounce itself on the incompatibility of federal legislation with the constitution, without having the power to void it and while remaining bound by it. In the field of human rights, this limitation to constitutional review has, however, been overcome by the functioning of the European Convention of Human Rights: The Federal Supreme Court has full power to review federal legislation in view of the ECHR and, in case of conflict, is bound to the ECHR, not the the law. Furthermore, it has the power to review and void cantonal laws based on the constitution. Since (with 26 cantons) most of the questions related to federal legislation also occur on the cantonal level and since Parliament observes very cautiously the rulings of the Swiss Federal Tribunal, there is a sort of indirect and de facto constitutional control also of federal legislation, which guarantees in fine that the Constitution is respected.
• The Swiss constitutional system has a particular separation of powers. One core constitutional actor is the people which uses its power mainly through the available directdemocratic instruments. It is for example comparatively easy to amend the federal constitution by means of a successful constitutional initiative accepted by the people. This may create new binding constitutional provisions that require implementation by federal laws. Such federal laws subsequently are not subject to the review of the Federal Tribunal, as mentioned. However, there are other mechanisms of control in place. Notably, in the case of federal legislation, there always is the option before a law enters into force of requesting a referendum – a binding popular vote – that can have as its outcome that a law is not enacted. It is thus in this instance that the people can intervene as an instance of control as the correct implementation of initiatives by the legislator is concerned.
• In addition, the Swiss Federal Tribunal has also consistently ruled that international treaties can be directly applicable in the monist Swiss legal order and have – as a matter of principle – primacy over national law. The Federal Tribunal can thus also review based on such treaties – notably human rights treaties – and apply such treaties.
• Furthermore, it must not be forgotten that as a party to the ECHR, Switzerland and its legal/constitutional system are also subject to external human rights-based review by the European Court of Human Rights.
• Lastly, there is a strong constitutional tradition in Switzerland to comply with judicial statements of courts that a law is not in conformity with international law (in particular as regards the ECHR and the European Court of Human Rights).
The claim is misleading as the Swiss system presents a complex balance of various mechanisms of control that complement the lack of judicial review of federal legislation by the Federal Tribunal. Simply transplanting this one element of that system into the very different context of the Israeli legal/constitutional system is likely to yield very different, unpredictable and potentially highly problematic results.
Claim 2: In Switzerland, it is a widely accepted system that the judges to the highest court are appointed in a political process, i.e. by elections based on the party majorities in parliament.
Contextual considerations:
• The Swiss system of electing judges to the Federal Tribunal must be understood before the background of its tradition of concordance democracy. As a key feature, representation of all the parties in various instances is highly important. For example, the parties in parliament are always all represented (to the extent possible) in the Federal Council, the Swiss government. The system of government, relations with parliament and ultimately the role of the judiciary (including the Federal Tribunal) are all influenced by this tradition. It cannot be transplanted easily into a different context of e.g. a much more competition-oriented parliamentary system with coalition governments representing typically clear “sides” of the political spectrum. The Swiss system works because all parties in parliament agree that also among judges, there needs to be clear representation of all the different parties. It is on this basis that parliament elects the
judges, taking into account a variety of criteria to ensure representativeness, among which party affiliation of judges.
• It should also be noted that there are practically no mechanisms once a judge is elected to influence their behavior. Experience has shown that judges do make use of their independence and clearly deviate from political positions of “their” party in their judicial decisions without any form of sanction.
Conclusion:
Again, the Swiss system is rooted in a particular tradition of party cooperation and concordance democracy which includes the idea of representation of all parties in various instances such as the Federal Tribunal. It is for this reason that this system is highly accepted and trusted in Switzerland and the independence of the judiciary is generally not called into doubt. It cannot easily be copied into another legal/constitutional system without risking unpredictable and potentially highly problematic results, including a loss of legitimacy of the highest court of said system.
Fribourg, 21th of march 202
