Paul Tschümperlin, Die Rolle des Bundesgerichts im Gesetzgebungsprozess, Gesetzgebung und Evaluation (LeGes) 2016, pp. 441-455
Paul Tschümperlin – Die Rolle des Bundesgerichts im Gesetzgebungsprozess
Background
In a system of separation of powers there are areas of direct or indirect interaction between state organs. The specificities of system design can vary from country to country. As set out, the Swiss Parliament exerts a strong influence on the Supreme Federal Court compared to the situation in other countries. It starts with the power to elect federal judges (see Part I C.) and continues with the power of the purse, the power of supervision (see Part I A. 2.3) and the limitation of the Federal Supreme Court to respect federal statutes even if found unconstitutional (see Part I A. 2.). The Federal Supreme Court in turn exerts its own influence over legislation in various ways. The paper below by a long-standing Secretary General of the Federal Supreme Court properly illustrates the role of the court within the legislative process. In addition, a federal judge is occasionally invited to join a commission of experts in the legislative process, or to testify as an expert before a parliamentary commission and to provide legal advice. The Federal Supreme Court often identifies problems in its work which the legislature was unaware of when the law was enacted. Thus legislators are interested in being advised thereof by the Federal Supreme Court. Hence, it was agreed with the top-level supervisory authority that the Federal Supreme Court would report in its annual report on contradictions and loopholes in legislation which became apparent in judicial practice. The business audit commissions and the Federal Office of Justice forward the “Advices to the Legislature” to the bodies responsible for preparing legislation. The most important information, however, can be gained from case law itself. Judgements alert the legislature to matters requiring addressing which have not yet been satisfactorily resolved. The Federal Supreme Court can declare a federal law unconstitutional (see Part I A. 2 and Part II D.), though it will be up to Parliament to amend laws. Also, Parliament regularly takes Federal Supreme Court decisions in legislative response as an opportunity to amend laws if the ruling shows that current law does not permit a satisfactory interpretation of the law from the legislator’s point of view, or if the legislature does not agree with a Federal Supreme Court ruling. It is not uncommon for legislators to codify the jurisdiction of the federal courts. The way advisories or requests sent to the legislator are handled varies.
Summary
The paper by Paul Tschümperlin addresses the role of the Federal Supreme Court within the actual legislative process. It does not address the influence by other means. The author starts by observing that the Federal Supreme Court is not a legislative body. Reflecting the view that separation of powers does not exclusively mean that state organs function in isolation from each other, but rather permits cooperation and coordinated activity, the Federal Supreme Court in many ways is involved in the legislative process. In preparing legislative drafts in the so-called consultation procedure, the Court has been consulted, along with the cantons, the political parties and other interested parties. It is a statutory requirement to obtain the opinion of the Federal Supreme Court if draft legislation concerns proceedings before the Federal Supreme Court or another judicial authority of the Federation. This allows legislators to leverage the expertise of the courts. If draft legislation is intended to regulate the position, organization or administration of the Federal Supreme Court or another judicial authority of the Confederation, the Federal Supreme Court is invited to provide its opinion prior to the opening of the formal consultation procedure, and then again within the framework of the general consultation procedure. The Court may request that its opinion be reproduced in full in the explanatory memorandum (“Botschaft”) to the government’s bill. These special participation rights of the Federal Supreme Court originate from the 1998 protocol of proceedings negotiated with the Federal Council. This was an initiative of the Federal Supreme Court taken after it had been neglected to be consulted in a few instances. The protocol regulates hearings on the opinion and the administration of the Federal Supreme Court in significantly greater detail, as the involvement of the Federal Supreme Court is to be sought early on and in all the following stages. If these rules are not followed, the Federal Supreme Court is not bound by regulations enacted by the Federal Council. In the event of a conflict, delegations of the Federal Supreme Court and the Federal Council will meet for a discussion. In relation to Parliament, the Federal Supreme Court is in a weaker position While it is recognized that the Federal Assembly, on the basis of the 1999 Federal Constitution, deals with the Federal Supreme Court directly – and no longer through the agency of the Federal Council – the only specific provision is that the parliamentary committees providing preliminary advice must give the Federal Supreme Court opportunity to submit an opinion where draft legislation concerns the powers, organization or administration of the federal courts. Formal specificities respecting the submission of the opinion are not defined by law. The commissions decide at their own discretion whether a representative of the Federal Supreme Court should be heard at their deliberations. Sometimes a representative is not sent in view because the Federal Supreme Court has no right to file a submission to these committees on its own initiative, in contrast to the rights vis-à-vis the Federal Council. There is hardly an objective justification for not having a permanent representation to ensure that the Federal Supreme Court is involved with its expertise. So far, the Federal Supreme Court has failed in its efforts to obtain a procedural protocol for interaction with the Federal Assembly commensurate to the interaction with the Federal Council achieved.
Observing the separation of powers and in order to preserve its own independence in future proceedings on the issue in question, the Federal Supreme Court has been generally cautious in its opinions, refraining in particular from value judgements of political nature, such as the expansion of constitutional powers of the Court. However, the Court makes its position clear in respect of significant procedural issues, the organizational structuring of authorities, supervisory issues and advisories submitted to the legislature in the Federal Supreme Court’s annual report. Important opinions of the Court are highlighted in the annual report.