Kanton St.Gallen

Staatskanzlei

Codification in Switzerland and the Canton of St.Gallen

St.Gallen, 2nd of October Benedikt van Spyk, Ph.D. in Law

Kanton St.Gallen

Seite 2

since 2011

Deputy Head of Legal Service and Legislation Support Canton of St.Gallen

2010

Ph.D. in Law (University of St.Gallen/University Heidelberg)

2008

Admission to the bar

2004

Law Degree (University of St.Gallen)

Staatskanzlei

Benedikt van Spyk

Kanton St.Gallen

Seite 3

Swiss Confederation

The Confederation only has authority in those areas in which it is empowered by the Constitution.

26 Cantons

All the other tasks are dealt with by the cantons. In some areas, the Confederation and the cantons share certain responsibilities.

2596 Municipalities

The cantons decides, what tasks are dealt by the local authorities.

Staatskanzlei

The Federal System

Kanton St.Gallen

Seite 4

Switzerland has a civil law legal system. Therefore, enacted or written law is the primary source of law.

Case law is the secondary source of law.

Staatskanzlei

Civil law legal system

Kanton St.Gallen

Seite 5

As in all other civil law legal systems, Swiss law is divided into public and private law.

Public law governs the organization of the State, as well as the relationships between the State and private individuals (or other

entities such as companies).

Private law governs the relationship between individuals. Swiss civil law is mainly comprised in the Swiss Civil Code (which governs

Status of Individuals, Family Law, Inheritance Law, and Property Law) and in the Swiss Code of Obligations (which governs

Contracts, Torts, Commercial Law, Company Law, Law of checks and other payment instruments).

Staatskanzlei

Civil legal System II

Kanton St.Gallen

Seite 6

Legislation in Switzerland is officially published in print by the applicable federal or cantonal Chancellery.

web

Staatskanzlei

Publications

Kanton St.Gallen

Seite 7

1. Initiating

2. Drafting and writing of a bill

3. Submission for inclusion on the agenda

4. Deliberation and Consultation

5. Adoption and Promulgation

Staatskanzlei

Legislation Process: Overview

Kanton St.Gallen

Seite 8

Initiating:

1. Every member of the Federal Parliament,

2. The Federal Council (Executive Power)

3. Every Canton

4. Private Initiativecomittee (100'000 signatures)

Drafting and writing of a bill:

The administration and its departments are mainly involved in the drafting procedure.

This first draft is submitted to a consultation procedure.

Staatskanzlei

Legislation Process II

Kanton St.Gallen

Seite 9

Submission for inclusion on the agenda:

The Federal Council submits bills that have been drafted by the departments of the administrative

organ, along with its publication in a special document to the Federal Parliament.

Deliberation and Consultation:

A valid vote is only possible when the two Chambers of Parliament come to an agreement, which

has to be reached independent of each other.

Staatskanzlei

Legislation Process III

Kanton St.Gallen

Seite 10

Adoption and Promulgation

In the final vote the two Chambers of Parliament decide to put a law into force or to dismiss it.

The bill can now come into force as a new law unless a referendum is demanded.

50'000 citizen or eight cantons are permitted to demand a referendum.

Staatskanzlei

Legislation Process IV

Kanton St.Gallen

Seite 11

The Legislation Projects and Methodology Division at the Federal Office of Justice or the Legal Service and

Legislation Support in the Canton St.Gallen is involved in:

1. drafting of constitutional and administrative law;

2. supports the federal or cantonal agencies by developing methodological principles;

3. implementing these principles by way of counseling and training.

Its goals are to improve lawmaking quality and ensuring the coherence of federal or cantonal law and

adherence to legal principles.

Staatskanzlei

Legislation Support

Kanton St.Gallen

Seite 12Staatskanzlei

Positiv Law Codification

Kanton St.Gallen

Seite 13

CERTAINTY:

By codification law becomes certain and it no longer remains vague and uncertain as it generally is in precedent and custom.

SIMPLICITY:

The codification makes law simple and accessible to everybody. By codification, law on any particular point is made accessible and known to everyone so that the citizens come in a position to know their rights and duties well.

LOGICAL ARRANGEMENT:

By codification, law is logically arranged in a coherent . form and there occurs no chance of conflict or inconsistency arising among the different provisions of the law.

STABILITY:

Codification makes the law simple and stable. Stability is very essential for law so that the people may have confidence in it and the legal transactions may be made

easily.

PLANNED DEVELOPMENT:

Codification brings uniformity which in turn helps in the planned development of the country.

UNITY:

Codified laws have uniform and wider application. This helps in developing affinity and unity among the people who are governed by the same laws.

PROTECTION AGAINST ARBITRARY, BIASED AND DISHONEST DECISIONS:

The existence of fixed principles of law avoid dangers of arbitrary, biased and dishonest decisions. Law applies equally to all without any distinction.

IMPARTIALITY:

The function of the court is merely to apply and enforce the law. It is one of the cardinal principles of law that justice should not only be done but also appear to be done. This can be achieved only when there are fixed principles of law.

PROTECTION FROM THE ERRORS OF INDIVIDUAL JUDGEMENT:

The law serves to protect the administration of justice from the errors of individual judgement. The problem of adjudication are sometimes difficult. Law represent the collective wisdom of the community and overrides the will and reason of judges and magistrates.

RELIABLE THAN INDIVIDUAL JUDGEMENT:

Another advantage of law is that it is more reliable than individual judgement. Human mind is fallible and judges are no exception. The wisdom of the legislature which represents the wisdom of the people is safer and more reliable means of protection than the momentary fancy of the individual

judge.

Staatskanzlei

Benefits of Positive Law Codification I

Kanton St.Gallen

Seite 14

1. Improved organization

2. Legal evidence

3. Elimination of obsolete provisions

4. Improved wording and form

5. Correction of technical errors

6. Precise statutory text

7. Cleaner amendments

8. Streamlined citations

Staatskanzlei

Formal Benefits of Positive Law Codification

Kanton St.Gallen

Seite 15

A Law Revision Counsel prepares an initial draft of a bill to restate existing law as a positive law title.

The bill is introduced in the Parliament.

After introduction of the bill, an extensive review and comment period ensues. The Law Revision Counsel actively seeks input

from Federal agencies, congressional committees, and others with expertise in the area of law being codified.

At the conclusion of the comment period, an amendment in the nature of a substitute – reflecting corrections and comments – is

prepared by the Law Revision Counsel and transmitted to the Parliament.

Staatskanzlei

Process of Codification

Kanton St.Gallen

Seite 16

1. Clear definition of Competences (President, Government, Parliament, Courts)

2. Clear definition of Acts, Bills, Statutes and Decisions

3. Clear systematic order of subjects

4. Clear Process of Legislation

5. Clear Competences for revision

Staatskanzlei

Conditions for Codification