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Unit 9: Constitutional Structure: Judiciary

Then, the Federal Tribunal has a restricted constitutional jurisdiction. It takes cognizance of conflict of Notes
competence between federal authorities on the one side and cantonal authorities on the other, disputes
in public law between cantons, and appeals against violation of constitutional rights of citizens and
appeals of private persons against violation of international agreements or treaties. In all cases of conflict
of competence, it is the power of the Court to uphold the federal Constitution against ordinary laws
and decrees of the cantons and the cantonal Constitution against ordinary laws and decrees of the
cantons. Its power of judicial review is limited to cantonal governments alone and, as such, it can
invalidate cantonal laws and look into the constitutional validity of cantonal executive actions. It is not
only that the Tribunal has no power to question the constitutionality of federal laws, it is specifically
required by the Constitution to treat all federal laws as constitutional and to enforce them.
However, the Swiss judicial system is quite different from the American model. There are no
subordinate courts and the Federal Tribunal stands alone. Nor has it separate officials to execute
judgment. Its power of judicial review does not cover federal laws and decrees. It may further be
added that although conflicts of jurisdiction between cantonal and federal authorities are decided by
the Federal Tribunal, the conflicts of jurisdiction between the Federal Council and the Federal Tribunal
are decided by the Federal Assembly. As a result, the Swiss Federal Tribunal cannot have the position
enjoyed by its American counterpart where, as Justice Frankfurter once confidently asserted, ‘the
Supreme Court is the Constitution.’ It is pointed out that “to endow it with the right of disavowing
federal statutes would therefore be to impose on a much weaker court a much heavier burden than
that under the American judiciary sometimes seems to be staggering.”
Self-Assessment

1. Fill in the blanks:
(i) The appointment of a Judge is made on a permanent basis for life and it is a matter of his will
to retire at the age of ............... (after 15 years of service) or resign at the age of ............... after
serving for 10 years.
(ii) The main civil courts in England and Wales for small cases are ............... .
(iii) Cases involving persons under 17 years of age are heard by justices of the peace in specially
constituted ............... .
(iv) The court of Appeal hears appeals in both criminal and ............... cases.
(v) The judges of the Supreme court of the United Kingdom are known as ............... of the Supreme
Court.
9.4 Summary

• The chief responsibility of the judiciary is to administer justice, according to the existing laws.
When the case cannot be decided in accordance with the existing law the judges decide the
same on the basis of their knowledge, commonsense and experience. Such decisions serve as
precedents for similar cases in future and form an important source of law.
• The judiciary acts as the guardian of the constitution and reserves the right to declare the law
passed by the legislature and orders issued by the executive as unconstitutional if they violate
the constitution. The power of judicial review is enjoyed by the judiciary in all federations. In
Great Britain, however, the judiciary cannot pronounce upon the constitutional validity of laws,
because the law is what the Parliament says it is.
• The judiciary also acts as guardian of individual liberty and protects the individual against all
possible encroachments by state. The Courts can also issue orders or injunctions restraining the
authorities from violating the rights.
• In England the Courts possess the power of making declaratory judgements, which eliminates
the formalities of a trial.
• Judiciary enjoys advisory powers in India and can advise on the constitutionality of an Act,
before it is finally adopted. The U.S. Supreme Court does not enjoy any such power.

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