Introduction

to Constitutional Law 1

Introduction to Constitutional Law
and Public International Law

Q&A Catalogue 1
Prof. Dr. Patricia Egli, LLM (Yale)
2nd Semester (Assessment)

Agenda
Chapter A: Introduction .......................................................................................................................... 2
Questions Chapter A ............................................................................................................................... 3
Chapter B: Historical Development......................................................................................................... 4
Questions Chapter B ............................................................................................................................... 4
Chapter C: Sources of Constitutional Law............................................................................................... 5
Questions Chapter C ............................................................................................................................... 5
Chapter D: Constitutional Interpretation................................................................................................ 6
Questions Chapter D ............................................................................................................................... 6
Chapter E: Constitutional Principles........................................................................................................ 8
1. Principle of the Rechtsstaat ................................................................................................................ 8
Questions Chapter E ............................................................................................................................... 8
2. Federalism........................................................................................................................................... 9
a) Cases ..........................................................................................................................................9
b) Individual Questions.................................................................................................................12

Mandatory Reading: EGLI, Introduction to Swiss Constitutional Law, Zurich/St. Gallen 2020, p. 1-61

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Introduction to Constitutional Law 2

Chapter A: Introduction

Learning Objectives

♦ Get an overview of the constitution in the formal and substantive sense.

♦ Know the functions of a constitution.

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Questions Chapter A

Question 1

Are the following principles part of the constitution in the formal or substantive sense?
a) The equal standing of the National Council and the Council of States (Art. 148 para. 2 Cst);
b) The principle of collegiality according to which the Federal Council reaches its decisions as a
collegial body (Art. 12 of the Federal Law on the Federal Government and the Federal
Administration, SR 172.010).

Question 2

The constitution may serve different functions. Analyze the following constitutional provisions by
discussing their main function:
a) Art. 74 Cst Protection of the Environment;
b) Art. 15 Cst Freedom of Religion and Conscience.

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Chapter B: Historical Development

Learning Objectives

♦ Get an overview of the historical development of the Swiss Constitution.

Questions Chapter B

Question 1
Look at the Preamble of the Swiss Constitution and Art. 1-6 Cst. Which provisions mirror the
historical development?

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Chapter C: Sources of Constitutional Law

Learning Objectives

♦ Know all different sources of constitutional law.

♦ Be able to recognize a legal provision regarding its source.

Questions Chapter C

Question 1

Which are the sources of constitutional law? Give an example for each source.

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Chapter D: Constitutional Interpretation

Learning Objectives

♦ Know all different methods of constitutional interpretation.

♦ Be able to interpret a legal provision according to the approach called pluralism of methods.

Questions Chapter D

Case 1

Analyze the following decision of the Swiss Federal Supreme Court and mark the different
methodological approaches applied (BGE 116 Ia 359 E. 5c (English Translation)):

G – Grammatical Approach
S – Systematic Approach
H – Historical Approach
T – Teleological Approach
P – Pluralism of Methods
C – Interpretation in Conformity with the Constitution
I – Interpretation in Conformity with International Law

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Introduction to Constitutional Law 7

The interpretation of a constitutional provision has to be governed by the same methodological rules
as those developed for the interpretation of laws at the sub-constitutional level (BGE 115 Ia 130 E.
3a; 112 Ia 212 E. 2a with references). The Swiss Federal Court follows a pluralism of methods (BGE
110 Ib 8). It starts with the wording of the provision (BGE 114 Ia 28, 196; 111 Ia 209 E. 6a) and
establishes the meaning and purpose of the statutory provision according to all recognized methods
of interpretation (BGE 114 Iba 162 E. 5a; 109 Ia 301 E. 12c). In doing so, the fact that the meaning of
a norm can change must be taken into consideration (BGE 115 Ia 133 E. dd; BGE 104 Ia 291). The
judge has to try to apply a norm in a way that corresponds as far as possible with the contemporary
conditions and opinions. Therefore, he will not be able to maintain a conventional interpretation that
undoubtedly was justified at the time of the enactment of the statute but cannot be held up in the
light of the changing conditions or developing opinions (BGE 105 Ib 60 E. 5a with references). (...)

When interpreting a statutory provision, the Federal Supreme Court must also consult the materials
prepared during a statute’s enactment and consider the intent of the historical framers of the
constitution and the statute so far as it found its way into the text of the statute (BGE 115 Ia 130 E.
3a; BGE 112 Ib 470; BGE 109 Ia 303 E. 12c, je mit Hinweisen). The drafting history of a provision can
be a valuable mean to identify its meaning and to avoid wrong interpretations (BGE 114 II 407 E. 3;
BGE 100 Ib 386). The preparatory work however is neither binding nor directly decisive for the
interpretation; in particular, statements of authorities and persons involved in the preparatory work
are not decisive when they did not find expression in the text of the statute itself (BGE 115 II 99; BGE
113 Ia 314; BGE 103 Ia 290 E. c, with references).

When reviewing the constitutionality of a cantonal provision, the Federal Supreme Court moreover
has to ask if the provision concerned can be interpreted in a way consistent with the constitutional
guarantees invoked. (BGE 109 Ia 277 E. 2a). The constitution is the basic legal order from which all
state law is derived. Accordingly, the interpretation of all legal norms has to be brought in line with
the superior values of the constitution. The interpretation in conformity with the constitution thus
emphasizes the inner connection between all state legal norms (...).

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Introduction to Constitutional Law 8

Chapter E: Constitutional Principles

1. Principle of the Rechtsstaat

Learning Objectives

♦ Get an overview of the constitutional principle of the Rechtsstaat in Switzerland.

♦ Being able to identify and interpret the respective constitutional provisions.

Questions Chapter E

Question 1

What is the relationship between the principle of the Rechtsstaat and the principle of legality?

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2. Federalism

Learning Objectives

♦ Get an overview of the constitutional principle of federalism in Switzerland.

♦ Being able to identify and interpret the respective constitutional provisions.

a) Cases

Case 1

The Swiss Constitution refers to Switzerland as a “Confederation”. Is Switzerland a confederation in

the legal sense?

Case 2

Could Switzerland be considered as a unitary state?

Case 3

In view of the cantonal autonomy, is it possible for a canton to refuse political suffrage to women?

Case 4

Will the Federal Assembly guarantee the following provisions in a cantonal constitution? Art. 138 of
the Constitution of the Canton of Jura is phrased as follows:
“The Republic and the Canton of Jura may include each part of the Jurassic territory directly affected
by the popular vote of 23 June 1974 provided that the part has separated in accordance with federal
law and cantonal law concerned.”

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Case 5

The Canton of Schaffhausen has a population of 78,000 people and 26 communes. The smallest
commune, Bargen, has a population of 300 and the biggest commune, the city of Schaffhausen, has a
population of 35,000. The structures in the communes have become obsolete and in the long term,
they are not maintainable since the costs involved are very high. The most cost-saving reorganization
is to entirely abstain from the communal level and to confer the communal tasks to the cantonal
administration with the objective to have only one administrational level: the cantonal
administrational level. Against this background, the cantonal parliament of Schaffhausen and the
government council of Schaffhausen wish to abolish all 26 communes of the Canton of Schaffhausen.
In addition, they want to reduce the costs for supporting people in need. The cantonal parliament
and the government council of the Canton of Schaffhausen thus amend Art. 4 Cst of the Canton of
Schaffhausen as follows:

Art. 4 Cst of the Canton of Schaffhausen (new) ...

Para. 2: The Canton of Schaffhausen abolishes all communes. There is only one administrational level:
the cantonal administrational level.
Para. 3: Persons in need and unable to provide for themselves do not have the right to financial
means.

Will the amendment of the cantonal constitution of Schaffhausen be guaranteed by the Federal
Assembly? Explain with reference to the relevant provisions.

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Example of an Exam Question (2014)

(Remark: These facts are made up and do not represent reality.)

In recent years, several tragic accidents of children injured by dogs have caught the attention of the
public in Switzerland. In December 2005, three pitbull terriers attacked a six year old boy and injured
him so severely that he died. As a consequence, a prohibition of dangerous dogs (so-called “attack
dogs”) was widely discussed. In some Swiss cantons, these discussions were followed by new
cantonal laws. Some of the cantons even prohibited the keeping of all dangerous dog breeds.
However, some cantons have not taken any legal steps so far.

National Councillor X. intends to start a petition for a federal law with the purpose to guarantee an
effective protection from all dangerous dog breeds in all cantons. The federal law is supposed to
include a general prohibition to keep dangerous dog breeds.

National Councillor X. wants to know if there is a federal competency in the Swiss constitution, which
would allow for such a federal law prohibiting dangerous dog breeds? Explain your answer with
reference to the relevant provisions!

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b) Individual Questions

Question 1

Which are the main elements of the cantonal autonomy in the Swiss legal system?

Question 2

In view of the Federal Constitution, what are the differences between the cantons and the
communes?

Question 3

In which competency do the following subject matters fall?

a) Foreign policy;
b) Education;
c) Economic policy;
d) Management of the judiciary.


Question 4

Determine the extent and the effect of the following federal competencies:

a. Art. 111-113 Cst;

b. Art. 92 Cst;
c. Art. 79 Cst;
d. Art. 60 Cst;
e. Art. 129 Cst;
f. Art. 122 para. 1 and 2 Cst.

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