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- 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. Election without Lists
- Bibliography and materials
I. History of origins
1 A regulation for the procedure in the event that no electoral lists are submitted in the renewal election of the National Council in a proportional representation constituency was already part of the work on the enactment of the Federal Act on the Election of the National Council 1918/1919. Thus, the draft already provided that in this case a free election should take place according to a relative majority. In the detailed deliberations in the National Council, the rapporteur emphasized that the constellation of no list being drawn up at all in an electoral district would probably occur only rarely. It was further explained that the intention was to follow the rule for majority voting in single-member constituencies with a relative majority in order to keep the rule as simple as possible and to enable a decision to be made in the first ballot. The draft did not give rise to any objections in the National Council. In the Council of States, the corresponding provision was waved through without discussion, whereupon it found its way into the proportional representation law in Art. 22 para. 3.
2 As part of the work on the Federal Act on Political Rights, the provision on "proportional representation" without lists was included in the draft without any material changes. The provision remained uncontested this time as well and was anchored in Art. 46 of the PRA in only an editorially revised form. Since then, the article has remained unchanged with the exception of a terminological revision of paragraph 2, which is meaningless in terms of content.
II. Significance of the provision
A. General
3 Art. 46 PRA regulates the case when no electoral lists are submitted in the election of National Council deputies in a multi-member constituency. The norm refers only to the general renewal elections of the National Council. Special procedural provisions apply to changes in the composition of the National Council during the term of office (Art. 54 et seq. PRA).
4 As already stated in the legislative materials, proportional representation without lists is also referred to in the literature as a merely theoretical case. So far, this has proven to be true, because since the introduction of proportional representation at the federal level, no case of application of Art. 46 PRA has occurred. It is also hardly conceivable in the future that no single valid candidature will be submitted for several National Council seats up for election. However, since the proportional representation procedure provides that a vote can only be validly cast for legitimately nominated candidates (Art. 38 para. 1 lit. a PRA), it is only logical to provide for a by-election procedure in the event that no candidatures are submitted. In this respect, it nevertheless seems questionable that numerous cantons do not provide for a corresponding regulation for the proportional election of their cantonal parliaments.
B. Legal Comparison
5 Some cantons have also made a provision for the case that no election proposals are submitted in the proportional election of their cantonal parliaments in an electoral district. In terms of content, these are largely parallel to federal law. Instead of proportional representation, in the absence of election proposals, a majoritarian procedure with a relative majority of votes takes place, in which votes can be cast for every eligible person. The canton of Geneva, on the other hand, has adopted a somewhat unusual regulation. If no electoral lists are submitted for an election, a relative majority election also takes place, but candidatures must again be submitted for these. The simplification in comparison to the original election procedure is that no electoral lists are required and accordingly the otherwise necessary 50 signatures do not have to be collected for an election proposal. If also in this so-called supplementary election no candidatures are received, it is up to the State Council to determine the modalities of the election or appointment.
6 However, numerous cantons, even if their parliaments are elected by proportional representation, do not provide for an explicit regulation on how to proceed in case of missing lists. However, this loophole has not been of any practical significance so far, since, as far as can be seen, there has not yet been a case in the cantonal parliamentary elections in which no electoral lists were submitted at all.
III. Election without Lists
A. Procedure in the absence of electoral lists (para. 1)
7 If all lists are missing in a proportional representation constituency, according to Art. 46 para. 1 FC any person who fulfils the eligibility requirements according to Art. 136 para. 1 FC may be voted for in the ballot. Exceptionally, therefore, instead of proportional representation in a multi-person constituency, a relative majority election takes place, i.e. those persons with the highest number of votes are already elected in the first ballot.
8 The decision in favor of a majority election is obvious in view of the absence of electoral lists, since the proportional representation procedure depends on election proposals. If there are no electoral lists, proportional representation is not feasible. The factual consequence of majority elections in multi-member constituencies is, however, that it can come to splintering of the majority and with the distribution of seats to still stronger political distortions with worse representation of the minorities, than this is the case with the Majorzverfahren in single-member constituencies.
9 Following the election procedure in single-member constituencies (Art. 47 para. 1 PRA), the legislator decided against a majority election procedure with an absolute majority requirement in the first ballot. This is surprising insofar as the most common form of majority in Switzerland is the one with the requirement of an absolute majority in the first ballot. Occasionally, there are even doubts about the constitutionality of relative majority voting. In any case, it seems undisputed that a majoritarian election procedure with an absolute majority requirement in the first ballot would better contribute to the preservation of the majority principle, because such a procedure increases the probability that the elected persons "at least appear to a majority of those voting as the 'lesser evil' among the existing alternatives." Moreover, absolute majority voting does better justice to the principle of freedom to vote, since eligible voters can cast their votes in the first ballot free from considerations of electoral strategy. Only in the second ballot, when the election chances of the individual candidates can be better assessed on the basis of the results of the first ballot, does the relative majority requirement create an incentive to vote primarily for the most promising candidates, so that one's own vote does not remain ineffective. Accordingly, the reason for the decision in favor of relative majority voting is probably to be found in the need for harmonization of electoral procedures. Since in the multi-member constituencies with proportional representation and in the single-member constituencies by law (Art. 47 para. 1 PRA) no second ballots take place, there would be a danger in an absolute majority election that the second ballot could be prejudiced by the election result from the first (and only) ballots of the other cantons. In this respect, the implementation of a relative majority election seems logical.
B. Supernumerary votes on ballots (para. 2)
10 Paragraph 2 of Art. 46 PRA regulates the procedure if the ballot paper of a person entitled to vote contains more names than there are mandates to be allocated. This provision is of decisive importance for the determination of the election result. It provides that the last names listed shall be deleted. In this respect, it is based on the same assumption as its parallel provision in Art. 38 para. 3 PRA, namely that the last names listed in each case correspond to the persons least favored by the persons entitled to vote and that a deletion is therefore in their interest.
C. Reference to majority elections in single-member constituencies (para. 3).
11 The third paragraph refers to the provisions of the majority voting procedure applicable to single-member constituencies for the other modalities of the election without lists. Since the law provides for an analogous application of the corresponding norms, it must be decided separately for each provision concerning the majority election whether and to what extent it is applicable to the election without lists.
12 The time limit for the delivery of ballot papers by the cantons can be applied without further ado also to the election without lists (Art. 48 in connection with Art. 46 para. 3 PRA).
13 The regulation of the drawing of lots in the event of a tie is also unproblematic. Since there are always several seats to be filled in the election without lists, the provision may, however, only be applied if it is a question of filling the last seat or seats and there is a tie between more candidates than there are still vacant seats. If, for example, two seats are to be filled and there is a tie between the candidates with the second best result, a decision by lot must be made (Art. 47 para. 1 in conjunction with Art. 46 para. 3 PRA). If, on the other hand, there is a tie between the two candidates with the best result, both shall be elected and the remaining candidates shall be disregarded.
14 However, the provision on the invalidity of ballot papers containing the names of different persons (Art. 49 para. 1 lit. a PRA) does not apply to elections without lists. For obvious reasons, in multi-person constituencies it is unavoidable and even desirable that several persons are named on one ballot paper. The other grounds for invalidity of the majority election in single-member constituencies (Art. 49 para. 1 lit. b-d PRA) coincide with those in multi-member constituencies anyway and therefore, based on Art. 46 para. 3 PRA, also apply to the election without lists.
15 It is unclear, however, whether Art. 46 para. 3 PRA also permits an analogous application of the provisions on silent elections in single-member constituencies (Art. 47 para. 2 PRA). From a procedural point of view, this would be possible, since the election registration deadline for election proposals in proportional representation cantons is the last Monday in August at the latest (Art. 21 para. 1 and 2 PRA). If no election proposals have been received by this date, a relative majority election is held by law (Art. 46 para. 1 PRA). In single-member constituencies, cantonal law may provide for a silent election if by the seventh Monday before the election - which takes place on the second-last Sunday in October (Art. 19 para. 1 PRA) - only one valid candidature has been received by the competent cantonal authority (Art. 47 para. 2 PRA). An analogous application to elections without lists would mean that the cantons could provide for a silent election if the cantonal electoral authority receives between the election registration deadline for the proportional representation procedure and the seventh Monday before the election the same number or fewer candidatures for election in the relative majority voting procedure than mandates to be allocated. Since the silent election is permitted by federal law both in multi-member constituencies and in single-member constituencies, one could assume that it should in principle be possible for the cantons to provide for it in cantonal law also for elections without lists. In contrast, the explanations of the dispatch on the individual articles explicitly mentioned that silent elections were not permissible in the case of elections without lists. This decision was not explicitly justified, but a parallel was drawn to the single-member constituencies, in which silent elections were also out of the question at that time due to the lack of a proposal procedure. However, since November 15, 1994, silent elections are in principle also permitted in single-member constituencies if the canton concerned provides for them by law (Art. 47 para. 2 PRA), it is unclear whether or to what extent this could now also apply to elections without lists. In any case, it is de facto almost inconceivable that, after no election proposals were received for proportional representation, sufficient legally valid election proposals for a silent election could be submitted within a week. Also, these considerations are rather theoretical, since a corresponding legal basis does not exist in the cantons.
16 The constellation that no electoral lists were available for the original election also gives rise to certain peculiarities with regard to a possible vacancy during the term of office. For example, a seat that has become vacant cannot be filled by substitutes from the same list, as is usually the case in constituencies with several National Council seats (Art. 55 PRA). The silent supplementary election within the meaning of Art. 56 PRA, in which three-fifths of the signatories of the corresponding list, or the executive committee of the cantonal party, propose a substitute and the latter is declared elected (Art. 56 para. 1 and 2 PRA), is also out of the question for obvious reasons. Theoretically, it would be conceivable that even without election lists, the vacancy is filled by moving up the person who achieved the next best election result in the majority election. The system of moving up, however, aims to maintain the party strengths existing at the time of the renewal election and thus the distribution of seats among the parties during a term of office. However, this only makes sense in the context of a proportional representation election, in which the party affiliation of the candidates is of decisive importance. In a majority election without electoral lists, however, the list or party affiliation of a candidate has no legal significance, which is why moving up in majority elections is completely alien to the system and cannot be justified in view of the requirement of direct popular election in Art. 149 para. 2 FC. According to what has been said, the reference in Art. 46 para. 3 PRA must also extend to Art. 51 PRA, which provides that in National Council elections by majority vote, any by-elections must also be filled in accordance with the same provisions - i.e. again by majority vote. Accordingly, if a seat in a multi-member constituency has exceptionally been filled in a majority election due to a lack of electoral lists, and if this seat becomes vacant during the legislative period, it must consequently again be filled in a majority election.
Bibliography and materials
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