#1. Legislative History

N. 1 Art. 143 Cst. adopted the content of the Federal Constitution of 1874 (Art. 75, 96 and 108 old Cst.) and systematically expanded it. The total revision of 1999 consolidated the provisions on eligibility for the National Council, Federal Council and Federal Court, previously distributed across three articles, into a single norm.

N. 2 The Constitutional Council discussed extending the scope of application to eligibility for the Council of States (Art. 133 Draft 1996), but rejected this in favour of cantonal regulatory competence. The deletion of the historical exclusion clause for clergy had already taken place in 1986 for the Federal Council and was adopted for all three federal authorities during the total revision (BBl 1997 I 441).

#2. Systematic Classification

N. 3 Art. 143 Cst. is systematically positioned between the provisions on political rights (Art. 136 Cst.) and the incompatibility regulation (Art. 144 Cst.). The norm concretises the democratic principle of general eligibility as an expression of political rights.

N. 4 The Constitution distinguishes between:

• the fundamental eligibility of all persons entitled to vote (Art. 143 Cst.)
• the incompatibilities between different offices (Art. 144 Cst.)
• the election procedures (→ Art. 149 para. 2, Art. 157 para. 1, Art. 168 para. 1, Art. 175 para. 2 Cst.)

N. 5 There is no federal eligibility regulation for the Council of States; this remains reserved to cantonal law according to Art. 150 para. 3 Cst..

#3. Elements of the Offence / Normative Content

N. 6 Persons entitled to vote within the meaning of Art. 143 Cst. are all Swiss citizens who have completed their 18th year of age and are not under guardianship due to mental illness or mental deficiency (→ Art. 136 para. 1 Cst.).

N. 7 Passive electoral capacity for the three highest federal authorities is thus exclusively linked to active voting rights. Further differentiation according to domicile, profession, education or other personal characteristics is inadmissible at the constitutional level.

N. 8 The range of offices covered comprises exclusively:

• all 200 National Council seats
• all 7 Federal Council members
• all ordinary and part-time federal judges

#4. Legal Consequences

N. 9 Art. 143 Cst. establishes a subjective right to eligibility for all persons entitled to vote. This right can only be restricted by constitutionally compliant incompatibility provisions or statutory eligibility requirements.

N. 10 The election of an ineligible person is void. Sägesser postulates the nullity of an election in case of lacking eligibility at the time of election. Aubert/Mahon and Biaggini, on the other hand, represent a more differentiated position according to which the legal consequences depend on the specific eligibility defect.

#5. Controversial Issues

N. 11 Additional eligibility requirements by the legislature: The prevailing doctrine holds that the requirements mentioned in Art. 143 Cst. are exhaustive. Sägesser, on the other hand, considers it permissible for the legislature to establish further eligibility requirements if the office requires special training, notably legal training for federal judges.

N. 12 Applicability of the criminal law professional ban: It is disputed whether the professional ban under Art. 67 SCC is applicable to the highest federal authorities. Rhinow/Schefer answer in the affirmative, arguing that political mandates should also be qualified as «activity» within the meaning of the criminal provision. Biaggini rejects this view and argues with the priority of the more specific constitutional norm.

N. 13 Lay judges at the Federal Court: The democratic tradition of lay judges stands in tension with the professionalisation of the judiciary. Kiener emphasises that the court constitution is characterised by the priority of democratic conceptions. The admissibility of additional qualification requirements for federal judges remains controversial (→ N. 11).

#6. Practice Guidelines

N. 14 When examining eligibility, a strict distinction must be made between constitutional eligibility and any incompatibilities. A person may be eligible but be forced to resign from an incompatible office by accepting the election (→ Art. 144 Cst.).

N. 15 The regulation of eligibility requirements for federal judges in Art. 5 para. 2 FCA (knowledge of at least one official language) moves within the borderline of what is constitutionally permissible. However, practice shows that the requirement of language knowledge is accepted as a minimal functional prerequisite.

N. 16 Different procedures apply for challenging elections to the federal authorities: National Council elections are subject to appeal to the Federal Court (Art. 82 lit. c FCA), while Federal Council and federal judge elections by the Federal Assembly are final.

#Principle of general eligibility

Case law on Art. 143 Const. is sparse, as the provision establishes a clear principle that seldom requires direct judicial interpretation. The few available decisions primarily address the limits of this general eligibility and its relationship to incompatibility rules.

BGE 91 I 260 of 15 September 1965 Incompatibility between cantonal office and membership in the cantonal parliament determines limits of eligibility. Although this landmark decision deals with cantonal law, it contains important statements on the relationship between Art. 143 Const. (then Art. 77 old Const.) and incompatibility provisions.

«Just as Art. 77 Const. does not prevent a civil servant appointed by the Federal Council from being elected to the National Council and being a member thereof if he renounces his office.»

#Distinction from incompatibility rules

Case law clearly distinguishes between eligibility requirements and incompatibility provisions. Art. 143 Const. governs eligibility, while other constitutional and statutory provisions may establish incompatibilities.

BGE 91 I 260 of 15 September 1965 Incompatibility is not identical to lack of eligibility. The decision clarifies the relationship between eligibility requirements and subsequent incompatibility rules.

«There is no disagreement that this is a mere incompatibility provision.»

#Federal civil servants and National Council mandate

Parliamentary proceedings and isolated court decisions show that the incompatibility between federal civil service and National Council mandate is based on the principle of separation of powers, not on a restriction of eligibility under Art. 143 Const.

#Current developments

Recent case law on political rights primarily addresses electoral procedures and cantonal provisions. The fundamental eligibility of all citizens entitled to vote for federal authorities under Art. 143 Const. is not called into question.

BGE 149 I 354 of 22 October 2023 Political rights in National Council elections are interpreted extensively. This latest BGE on political rights shows the Federal Court's liberal-extensive interpretation in the area of political participation rights.

«Art. 34 Const. [...] only sub-list alliances between lists of different political parties are permitted.»