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Unit 9: Constitutional Structure: Judiciary

on the other that those involved may have at their disposal procedures enabling them to find Notes
the competent judge.
• There is the double degree of jurisdiction which makes it possible for any party to an action or
trial to appeal to a superior court against a decision rendered by an inferior court; it is an old
rule; but while under the ancien regime the appeal was a means for the king to assert his rights,
it has now become a guarantee of good justice.
• Then, there is the High Court of Justice. Art. 67 of the Constitution lays down that it shall be
composed of the elected members of Parliament in equal number by the National Assembly
and the Senate after each general or partial election to these assemblies and it shall elect its own
President from amongst its members. An organic law shall determine the composition of the
High Court, its rules and also the procedure to be followed there.
• Its most important function is to try the President of the Republic on charges of high treason
and the ministers or their accomplices on the charge of plotting against the security of the State.
However, three important points must be kept in view in this regard. First, the decision to bring
a ‘party’ before the court must be taken by both the Houses and not by the National Assembly
alone as under the Fourth Republic. Second, the vote is no longer secret as it is by open ballot.
Last, the sentence on a President of the Republic found guilty of high treason is no longer to be
determined on the basis of rules laid down in the penal code.
• Administrative law is the unique contribution of France. As Dicey says, it covers no less than
the whole realm of relationship between public authorities and the individual. Strangely enough,
this variety of law is based to a very large extent on judicial precedents with which the legislature
does not ordinarily interfere and which the aministrative courts themselves alter only gradually.
• The youngest of the three organs of Swiss national government is the Federal Tribunal or the
Supreme Court consisting of 26 judges and 12 alternates or substitutes elected by the Federal
Assembly in its joint session for a period of six years. One of the judges is elected as its President
and the other as its Vice-President for a term of two years, neither of whom can be re-elected for
the next consecutive term.
• The Constitution requires that all the three linguistic areas of Switzerland should find adequate
representation. However, a convention has developed whereby only men of forensic ability
and experience are elected and then re-elected as long as they ‘live or care to serve’.
• The jurisdiction of the Federal Tribunal extends over civil and criminal cases and other issues
of public law. Its civil jurisdiction covers all suits between the Confederation and the cantons
and between the Cantons themselves.
• The Federal Tribunal has jurisdiction, original and exclusive, in cases of high treason against
the state and revolt and violence against federal authorities, crimes and offences against the
law of nations, political crimes and misdemeanours which are either the cause or consequence
of disorders and disturbances necessitating armed federal intervention and, finally, offences
committed by the officials appointed by a federal authority before the Tribunal by that authority.
• 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.
• 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.

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