-
- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. History of origins
- II. Significance of the Provision
- III. Commentary on the Text of the Norm
- Materials
- Bibliography
I. History of origins
1 When proportional representation was introduced at the federal level in 1919, it was already anticipated that cases might arise in which a party was allocated more mandates than it had candidates on its list. The federal legislator deliberately decided against the solution common at that time in the cantons with proportional representation. This provided for the 'remaining' seats to be distributed proportionally among the other lists. This was contrary to justice and equity. Instead, a supplementary election was to be held, in which only the group that still had unfilled mandates was allowed to submit a list. In this way, proportionality was to be preserved. According to the understanding of the National Council Election Act of 1919, the mandates distributed to the lists thus became the "property of the group" and were to remain so even if not enough candidates had stood for election.
2 This underlying idea was fleshed out in two legal norms. The first norm - of interest here - dealt specifically with the case in which a list immediately at the election had too few candidates for the number of mandates awarded to it, and referred to the second, in which the procedure of supplementary election was standardized in detail. The first provision in question was adopted in the Councils in 1919 without debate. The basic structure and this provision have survived until today without any material changes.
II. Significance of the Provision
A. General
1. Subject matter and delimitation
3 Art. 44 PRA regulates the case in which a list is awarded more mandates than it lists candidates. The provision thus applies after National Council elections have been held and the mandates have been allocated to the individual lists (Art. 40-42 PRA), when these mandates must be allocated to the individual candidates on the lists - before the beginning of the legislative term.
4 Art. 44 PRA refers to the procedure of the supplementary election according to Art. 56 PRA. This provision in turn, according to the title of the corresponding chapter in the PRA, regulates "changes during the term of office", specifically the moving up during the term of office in the absence of substitutes. The delimitation of the two provisions is thus based on the point in time at which mandates are allocated to individuals who were not on the original list: Art. 44 PRA concerns the time immediately after the election, Art. 56 the time during the term of office. The procedure remains the same, but for the constitutional assessment this distinction may be relevant.
2. Practical Relevance
5 Two supplementary elections have been required immediately after ordinary National Council elections, both in 1919, after the very first National Council elections with proportional representation. In the canton of Fribourg, the Catholic-Conservative Party won six of the seven seats in the National Council, but had only five candidates on its list. In the canton of Schaffhausen, the Peasants' Party was awarded both National Council seats, but had only one candidate listed. Since then, no case of application of today's Art. 44 PRA has occurred.
6 It is still conceivable that a party (also for itself) receives a surprisingly large number of mandates and has not nominated a sufficient number of candidates - especially in the case of new parties which may be limited in terms of topics. As long as this theoretical possibility exists, this provision is certainly important to prevent legal loopholes that would be politically controversial and constitutionally problematic to close only in concrete cases of application. In all likelihood, however, its practical relevance will remain limited.
B. Comparison of Laws
7 Most cantons that elect their parliament by means of a proportional representation system regulate the handling of surplus mandates similarly to the PRA. They primarily provide for the possibility of the list being supplemented by the (majority of the) signatories of the election proposal; if this possibility remains unused, a by-election is held, which is not limited to one party or list ("free election"). Four cantons proceed directly to a free by-election. In the canton of Valais, vacant seats go to the separately elected suppleants.
8 In almost all cantons, the same procedure applies to the by-election regardless of the time of the supplement: in the case of surplus mandates before the term of office, the same as for changes during the term of office. The only exception is the canton of Schwyz, which makes a distinction. In the case of supernumerary mandates, the addition to the list is possible without an election; in the case of vacant seats during the term of office, a free by-election takes place immediately. This distinction seems plausible: the principle of proportional representation requires that the composition of parliament proportionally reflects the preferences of the eligible voters at the time of the election. Therefore, it seems justified not to change the party-political composition of parliament before the term of office, although this is at the expense of the democratic legitimacy of the individual member of parliament concerned - in the case of changes during the term of office, on the other hand, a free election is to be preferred.
III. Commentary on the Text of the Norm
A. Case of application: "If a list is allocated more mandates than it lists candidates"
9 Lists or election proposals submitted (Art. 21 ff.) may also list fewer names than there are seats to be allocated in the electoral district. If such a ballot paper is submitted during the election, the blank lines count as additional votes for the list whose name or number the ballot paper bears (Art. 37 para. 1 PRA). Therefore, it may happen that a list is awarded more mandates than the number of candidates it lists.
B. Reference to Art. 56 PRA, "Supplementary Election
1. Proportionality
10 The PRA assumes that the mandates "belong" to the list that is entitled to them according to the initial and remaining distribution. The party-political composition of the National Council is to remain the same in supplementary elections as it was in the distribution of mandates among the lists; proportionality is further maintained. The supplementary election procedure therefore primarily provides that the signatories of the election proposal may "supplement" the list (cf. Art. 56 PRA). In this respect, the name "supplementary election" is misleading, since precisely no (free) by-election takes place.
2. Criticism
11 The procedure of the "supplementary election" according to Art. 56 PRA has been criticized in the doctrine on various occasions. The fact that the signatories of the election proposal can directly determine who will become a member of the National Council, i.e. that there is no direct election within the meaning of Art. 149 para. 2 FC, is judged to be constitutionally problematic. This gives the parties very great weight. In addition, it is criticized that the provisions on the supplementary elections place party-related proportionality above the democratic legitimacy of the individual members of the National Council - which is particularly objectionable because there is no entitlement to proportional representation during the entire term of office of the National Council.
12 Proportionality is restricted in various places in the PRA, but often in constellations that rarely occur in practice. The constitutional formulation that National Council elections are conducted "according to the principle of proportional representation" (Art. 149 para. 2 FC) allows for this. Therefore, in my opinion, it would also be permissible to restrict proportionality in the interest of democratic legitimacy for supplementary elections under Art. 44 PRA, which are also rarely held.
13 It must be differentiated whether this is also necessary. Before the start of the term of office, i.e. immediately after the voters have expressed their will, their preferences must be reflected as proportionally as possible, which is guaranteed by the current regulation on supplementary elections. During the term of office, however, this can no longer be affirmed with the same absoluteness for two reasons. First, the preferences of the population naturally change over time, but are expressed only periodically, every four years, in the context of National Council elections. Second, the composition of the National Council can also change, for example, if a member changes parties. Therefore, the current rule of supplementary elections seems better justified for the filling of surplus mandates before the term of office than for the case of a replacement during the term of office according to Art. 56 PRA.
Materials
Botschaft des Bundesrates an die Bundesversammlung betreffend die Wahl des Nationalrates nach dem Grundsatze der Proportionalität vom 26.11.1918, BBl 1918 V S. 121 ff. (zit. Botschaft NWG).
Bericht des Bundesrates an den Nationalrat betreffend die Nationalratswahlen für die XXV. Amtsperiode vom 22.11.1919, BBl 1919 V S. 637 ff. (zit. Bericht Nationalratswahlen 1919).
Botschaft des Bundesrates an die Bundesversammlung zu einem Bundesgesetz über die politischen Rechte vom 9.4.1975, BBl 1975 I S. 1317 ff. (zit. Botschaft BPR 1975).
Bibliography
Gruner Erich, Die Schweizerische Bundesversammlung 1848-1920, Band I, Bern 1966.
Hangartner Yvo/Kley Andreas, Die demokratischen Rechte in Bund und Kantonen der Schweizerischen Eidgenossenschaft, 1. Aufl., Zürich 2000.
Hangartner Yvo/Kley Andreas/Braun Binder Nadja/Glaser Andreas, Die demokratischen Rechte in Bund und Kantonen der Schweizerischen Eidgenossenschaft, 2. Aufl., Zürich 2023.
Joos Eduard, Parteien und Presse im Kanton Schaffhausen, Thayngen 1975.
Poledna Tomas, Wahlrecht im Bund, in: Thürer Daniel/Aubert Jean-François/Müller Jörg Paul (Hrsg.), Verfassungsrecht der Schweiz, Zürich 2001, S. 363–371.
Rhinow René, Nationalrat ohne Volkswahl? – Nachrücken von Parteignaden, ein Akt gegen das Demokratieprinzip, in: NZZ, 12.1.2008, S. 18.
Weber Anina, Mandatsverlust bei Parteiwechsel – Wem "gehört" ein Mandat bei Proporzwahlen?, SJZ 2011, S. 439–358.