N. 1 Legislative History

Art. 145 Cst. was adopted in the total revision of 1999 without substantial changes from the previous constitution. The Dispatch on the new Federal Constitution of 20 November 1996 (BBl 1997 I 1, 421) states that the provision brings together the previously scattered provisions on terms of office across various articles. The four-year term of office for the National Council and Federal Council had been constitutionally anchored since 1848, while the six-year term of office for federal judges was first introduced in 1874. The differentiated design of terms of office was deliberately maintained to take account of the different functional requirements of the three branches of government.

N. 2 Systematic Classification

Art. 145 Cst. is located in Title 5 on the Federal Authorities and is systematically positioned between the provisions on eligibility (Art. 143 f. Cst.) and incompatibility (Art. 144 Cst.) on the one hand, and the immunity provisions (Art. 162 Cst.) on the other. Together with → Art. 143 Cst. (eligibility) and → Art. 144 Cst. (incompatibilities), the norm forms the constitutional foundation for the personal organisation of the federal authorities. In the context of the separation of powers (→ Art. 144 para. 1 Cst.), the different terms of office for political authorities and judicial bodies is of particular importance.

N. 3 Elements of the Offence / Content of the Norm

The provision conclusively regulates the terms of office for three categories of federal offices. The concept of term of office designates the time frame for which a person is elected to an office. The four-year term of office for the National Council, Federal Council and Federal Chancellor corresponds to the legislative period, thereby ensuring democratic legitimacy and political coherence. The six-year term of office for federal judges deliberately deviates from this to strengthen judicial independence. The norm contains no provision on re-eligibility, which follows from → Art. 143 Cst. (unlimited eligibility).

N. 4 Legal Consequences

Upon expiry of the term of office, the rights and duties associated with the office expire by virtue of the Constitution. An automatic extension or tacit continuation of the office is excluded. According to doctrine, the fixed term of office means that democratic legitimacy of state power can only be provided for a manageable duration. During the term of office, there is in principle an entitlement to exercise the office; early dismissal for political reasons is constitutionally inadmissible. However, removal from office can occur for non-political reasons (incapacity for office, gross violation of official duties), with non-re-election serving as a functional equivalent for federal judges (JAAC 68.49).

N. 5 Controversies

Doctrine is divided on two central questions. First, there is disagreement about the constitutionality of the age limit for federal judges under Art. 9 para. 2 FCJA. While the Dispatch on Federal Judicial Administration affirms compatibility with Art. 143 Cst., Fischbacher, Biaggini, Gächter and Kiener take the view that the provision is not consistent with Art. 143 Cst., as it establishes a new eligibility requirement. Second, the admissibility of removal from office of federal judges by the Federal Assembly is disputed. Biaggini, Kiener, Rhinow and Schefer consider such removal from office by means of a federal decree subject to referendum to be unconstitutional, while the St. Gallen Commentary (Ehrenzeller) and a legal opinion express at least doubts about its constitutionality. A third point of contention concerns the optimal term of office for federal judges: one view in the literature calls for an extension of the term of office or alternatively appointment for life without the possibility of re-election, while another is critical of life tenure.

N. 6 Practical Guidance

The different terms of office have considerable practical consequences for the conduct of office. For federal judges, a general renewal election is held every six years by the United Federal Assembly (→ Art. 168 para. 1 Cst.), with staggered elections contributing to continuity in jurisprudence. The age limit of 68 years (Art. 9 para. 2 FCJA) means that federal judges must also step down during an ongoing term of office. For National Councillors, the four-year term of office means that they must regularly face the voters, which strengthens democratic accountability. For Federal Councillors, despite formal re-eligibility, a practice of de facto irremovability has developed — non-re-elections are extremely rare. The Federal Chancellor is elected simultaneously with the Federal Council for four years (→ Art. 175 para. 2 Cst.), thereby ensuring the coherence of the executive. In case of early resignations, replacement elections are held only for the remainder of the current term of office.