#1. Legislative History

N. 1 Art. 161 Const. adopted unchanged the content of Art. 91 old Const. The provision on the free mandate (para. 1) has its roots in the democratic tradition of Switzerland and was already anchored in the Federal Constitution of 1874. The obligation to disclose interests (para. 2) was only introduced at the constitutional level with the total revision of 1999 (BBl 1997 I 1, 264 f.).

N. 2 The anchoring of the disclosure obligation took place in the context of discussions about more transparency in the political system. The constitutional legislator recognised that the independence of members of parliament (para. 1) is not restricted by the disclosure of their interests (para. 2), but rather strengthened by making potential conflicts of interest recognisable to the public (BBl 1997 I 265).

#2. Systematic Classification

N. 3 Art. 161 Const. is located in Chapter 3 (Federal Assembly) of Title 5 (Federal Authorities) and regulates the individual position of the members of the Federal Assembly. The norm supplements the institutional provisions on the Federal Assembly (Art. 148–160 Const.) with personal guarantees.

N. 4 The provision is closely connected with:

• → Art. 34 Const. (Political rights), which guarantees active and passive suffrage
• → Art. 144 Const. (Incompatibilities), which secures independence through incompatibility rules
• → Art. 149 Const. (Election and term of office), which establishes democratic legitimation
• ↔ Art. 5 Const. (Principles of rule of law conduct), particularly the transparency requirement

N. 5 At the cantonal level, parallel provisions on the free mandate are found in most cantonal constitutions (e.g. Art. 52 para. 1 Const./ZH). The case law on Art. 161 para. 1 Const. applies analogously to cantonal parliamentarians (BGE 135 I 19 E. 3.2).

#3. Elements of the Provision / Content of Norm

#a) Free Mandate (para. 1)

N. 6 The free mandate means that members of parliament are legally bound by no instructions in the exercise of their office. They are representatives of the entire people, not only of their electorate or party (Häfelin/Haller/Keller/Thurnherr, Federal Constitutional Law, 10th ed. 2020, N 1495).

N. 7 The principle comprises three dimensions:

• Legal independence: No binding instructions from parties, associations or voters
• Freedom of conscience: Decision according to own conviction
• Mandate protection: No withdrawal of mandate due to voting behaviour

N. 8 Independence from instructions applies absolutely to voting in parliament. Parliamentary group discipline and intra-party agreements are political, not legal, bindings (Rhinow/Schefer/Uebersax, Constitutional Law, 3rd ed. 2016, N 2885).

#b) Disclosure of Interests (para. 2)

N. 9 The disclosure obligation covers all essential interests that could influence parliamentary conduct. These include in particular:

• Professional activities and mandates
• Memberships in boards of directors and supervisory boards
• Permanent advisory functions
• Substantial participations
• Functions in interest organisations

N. 10 The concrete implementation takes place through the Parliament Act (ParlA) and the rules of procedure of the chambers. The disclosure must be complete and current (Müller/Schefer, Fundamental Rights, 4th ed. 2008, p. 892).

#4. Legal Consequences

N. 11 From the free mandate it follows that:

• Voting agreements are legally non-binding
• A withdrawal of mandate by party or voters is excluded
• Parliamentarians retain their mandate even after changing party

N. 12 The violation of the disclosure obligation can lead to:

• Disciplinary measures by the bureau of the chamber
• Reputational damage and political consequences
• Criminal consequences if corruption is present (→ Art. 322ter ff. CC)

N. 13 The limit of the free mandate lies in the deliberate deception of the electorate. Whoever already plans a party change before the election and conceals this violates the voting and election freedom of those entitled to vote (BGE 151 I 41 E. 7.4).

#5. Points of Controversy

N. 14 Scope of the free mandate in proportional elections: The doctrine is divided on whether the free mandate can be restricted in proportional elections. While Tschannen/Zimmerli/Müller (General Administrative Law, 4th ed. 2014, p. 167) favour a stronger binding to the electoral list, the prevailing doctrine (Häfelin/Haller/Keller/Thurnherr, op. cit., N 1496; Rhinow/Schefer/Uebersax, op. cit., N 2886) advocates the full validity of the free mandate even in list elections.

N. 15 Point in time of mandate freedom: Controversial is when the free mandate applies. According to BGE 151 I 41 protection begins only with the constitution of parliament. Biaggini (Const. Commentary, 2nd ed. 2017, Art. 161 N 3) criticises this restriction as inconsistent with the system, since the mandate already arises with the election.

N. 16 Scope of the disclosure obligation: Disputed is how detailed the disclosure must be. While the St. Gallen Commentary (Ehrenzeller et al., 4th ed. 2023, Art. 161 N 12) demands comprehensive transparency, others advocate for a restriction to essential ties with direct reference to parliamentary activity.

#6. Practice Notes

N. 17 Members of parliament should:

• Disclose interests proactively and completely
• Communicate transparently in case of conflicts of interest
• Make intentions to change party known early
• Update the register of interests regularly

N. 18 In assessing party changes, the decisive factors are:

• The point in time of decision-making
• Communication towards the voters
• The presence of intention to deceive
• Proximity to the election date (BGE 151 I 41 E. 8.6)

N. 19 Parliamentary practice shows that political sanctioning of violations against party discipline or inadequate transparency is more effective than legal measures. The free mandate protects against legal, not against political, consequences.

#Free Mandate (para. 1)

#Party switching after election

BGE 135 I 19 cons. 3.2 of 17.12.2008

St. Gallen cantonal parliament; party switching between election date and constitution of parliament as violation of the political rights of the electorate.

The Federal Supreme Court explained the constitutional foundation of the free mandate and its application to cantonal parliamentarians.

«For members of the Federal Assembly, this principle is today derived from Art. 161 para. 1 Cst.; the provision was adopted unchanged in content from Art. 91 old Cst. According to the prevailing constitutional law doctrine in Switzerland, the principle of representation free from mandate belongs to the essence of the parliamentary mandate.»

BGE 135 I 19 cons. 5.5 of 17.12.2008

Validity of the election of a cantonal councillor despite party switching immediately after the election.

The judgment confirmed the validity of the election, as even a party switch carried out shortly after election day is compatible with the constitutional principle of direct suffrage.

«Here, the party switch was carried out only shortly after the election day or before the constitution of the newly elected parliament. This step may be questionable and the resulting loss of political credibility great. Nevertheless, even such a party defection is compatible with the constitutional principle of direct suffrage.»

#Limits of the free mandate in case of deception

BGE 151 I 41 cons. 7.4 of 22.5.2024

Zurich Cantonal Council; party switching of a cantonal councillor between election date and constitution of parliament.

The Federal Supreme Court clarified the case law from BGE 135 I 19 and defined the limits of freedom to switch parties in case of deliberate deception of the electorate.

«In principle, a person has the freedom to change party based on freedom of expression (Art. 16 Cst.), freedom of association (Art. 23 Cst.), protection of political rights (Art. 34 para. 1 Cst.) and the principle of the free mandate (Art. 161 para. 1 Cst. and Art. 52 para. 1 Cantonal Constitution/ZH). However, this freedom finds its limit in the freedom of election and voting of those entitled to vote: candidates who have already firmly decided to switch parties at the time of the election and conceal this, mislead those entitled to vote.»

BGE 151 I 41 cons. 8.6 of 22.5.2024

Constitutional limits in case of misleading the electorate about party affiliation.

The judgment established the standard for serious misleading of those entitled to vote in connection with list affiliation in proportional elections.

«However, anyone who runs for cantonal council and withholds their own, 'true' list/party affiliation from those entitled to vote, misleads the electorate about a fact that is central to the election. If the relevant information subsequently turns out to be misinformation following the election of the person concerned, this constitutes a new, objectively ascertainable fact that is essential in the context of an election and decisive for the election of the candidate concerned.»

#Disclosure of interests (para. 2)

#Transparency in public functions

The disclosure obligation under Art. 161 para. 2 Cst. has not yet been directly addressed in Federal Supreme Court case law. The few available decisions deal with the disclosure of interests in other areas of public law, particularly in connection with the Freedom of Information Act and transparency issues at universities and federal employees.

However, this case law is only of limited relevance for the interpretation of Art. 161 para. 2 Cst., as it does not specifically deal with the disclosure obligations of members of the Federal Assembly, but with general transparency issues in the administration.

#Development status of case law

No comprehensive Federal Supreme Court case law yet exists on the concrete design and limits of the disclosure obligation under Art. 161 para. 2 Cst. The practical implementation of this provision occurs primarily through parliamentary regulations and the corresponding administrative provisions of the Federal Assembly.