Switzerland; Switzerland -- Politics and government -- 1815-
The power of the court in the matter of claims for violation of rights
of citizens has been exercised with much latitude. The most usual
and proper cases arising under it are: infringements of the federal
guarantee to the citizen of equality before the law, of freedom of
settlement, of security against double taxation, of liberty of the
press, etc. But the court has gone much beyond these; its jurisdiction
has been extended to the hearing of complaints against cantonal
authorities, for ordinary alleged failures of justice, such as could
hardly have been contemplated by the constitution. It has even taken
jurisdiction of cases where the appellant asserts a denial of his claim
by a cantonal judge, grounded upon merely obstructive motives or an
arbitrary application of the law.
The Constitution of 1874 had as one of its chief objects the
strengthening of the federal judiciary; and by statutes, enacted in
pursuance of the constitutional authority given to the Federal Assembly
to place other matters within the competence of the court, there have
been transferred generally to it the appeals heretofore made from
the Federal Council to the Federal Assembly. There is no purpose to
entirely exclude the legislative branch from judicial action; for the
constitution, in dealing with the Federal Tribunal, expressly provides
that “administrative” cases are reserved to the Assembly; and the act
of 1874 defined the jurisdiction of the Federal Council and Federal
Assembly, under this reservation, to embrace disputes respecting
public primary schools of the Cantons, liberty of commerce and trade,
rights of established Swiss, religious disputes relating to matters of
public law, questions as to the calling out of the cantonal militia,
consumption taxes and import duties, exemption from military service,
and the validity of cantonal elections and votes. In all these cases
an appeal lies from the Federal Council to the Federal Assembly. Thus a
wide field of judicial action is withheld from the sphere of the court,
and upon questions which do not appear to possess any “administrative”
character; producing a division of functions which is very anomalous.
There has always existed in Switzerland a very strong current of
opinion, that the court should be occupied exclusively with questions
of public law, and should possess no jurisdiction in matters of private
law. The Federal Tribunal has no officers of its own to execute its
judgments; but its judgments, as well as the decrees of courts of
arbitration in intercantonal conflicts, are executed by the Federal
Assembly; and the Federal Assembly in turn is obliged to resort to
cantonal machinery for the purpose of doing this; so that, in fact,
these judgments finally are executed by the cantonal authorities.
Public-domain text, read in full here on John Shaqi.
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