DEMOS CRATOS IS ONE-EN-один (D)


(BEING CONTINUED FROM   18/01/15)

4 The Statutory Referendum

4.1 Mandatory Statutory Referendum

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Table 4 describes the existence and scope of the mandatory statutory referendum. In many cantons, a mandatory statutory referendum exists that is applicable solely to very specific  laws and contracts but not to all cantonal laws in general. For example, since 1999 in  Nidwalden, the new mandatory referendum is applicable solely to administrative permissions  on subterraneous exploitation or storage (art.52, 6. CC) and in Bern exclusively to  intercantonal treaties and alterations in the cantonal demarcations (art. 61, 1 lit. c, d). In such  cases, the mandatory referendum is treated and regarded as nonexistent for the construction of  the index of direct democracy because these special cases do not form part of the daily  political decision-making process. For this reason, I have usually excluded these mandatory  referenda on treaties and special issues. Included however are the extraordinary statutory  referenda because they might shed light on the entire range of statutory referenda (jointly with
the optional statutory referendum) that exists in a canton. In general, however, the analysis of  the mandatory statutory referendum addresses all those applicable to all cantonal laws,decrees and by-laws.

4.2 Comments on the Changes in the Mandatory Statutory Referendum

Between 1997 and 2003, a considerable constitutional change regarding the mandatory  statutory referendum could be observed in Zürich: the mandatory statutory referendum was  abolished and a optional statutory referendum was introduced instead. This change became  effective on the 1st of January, 1999. To evaluate how this change affects the index for the  statutory referendum, the interplay with the optional statutory referendum must be taken into  consideration (see section 4.3), which caused a drop in the subindex of the statutory  referendum (from 6 to 3.33). On the other hand, in 1999, an additional extraordinary  mandatory referendum was introduced for laws and decrees (art. 30 bis, 1 and 3 CC).
In canton Bern, a restriction with respect to extraordinary mandatory referendum was  introduced in September 2002. Before this change any law could be subject to such an  extraordinary referendum if 120 members (out of 200) of the Grosser Rat so decided (see T/S  1999, p. 177). Now, however, it is stipulated that 100 members (out of 160, art. 72 CC) can  put a law or decree on the ballot if it is subject to an optional referendum anyway according to art. 62. CC, to which all laws, international treaties, and most decrees are subject. Excepted  are specific expenditure projects that are below the threshold for an optional fiscal
referendum. This change, however, did not affect the index of direct democracy because the  extraordinary mandatory statutory referendum does not form part of it.
In the canton of Obwalden, the abolishment of the Landsgemeinde in 1998 led to a dramatic  change regarding the mandatory statutory referendum. Traditionally, before the popular vote  on the 29th of November, 1998, the assembly of the cantonal electorate voted on all laws at  the ballot box (art. 65 old CC) and by open ballot in case of optional statutory referenda on
decrees of the Kantonsrat (art. 61 old CC). In the new partial revision of the constitution of  1998, this mandatory statutory referendum was eliminated and replaced by an optional  statutory referendum for laws (art. 59, 1 CC), and the old optional referendum on decrees was  completely abolished58. According to the revised constitution, a statutory initiative must be
voted upon if the Kantonsrat does not agree or if it makes a counterproposal (art. 58 lit. cCC). According to art. 59, 2 lit. a, an extraordinary mandatory statutory referendum can be  held if a third of the members of the Kantonsrat agree. This development led to a decline of  the subindex of the statutory referendum in Obwalden from 6 in 1998 to 4.33 in 1999.

 

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Table 4 describes the existence and scope of the mandatory statutory referendum. In many  cantons, a mandatory statutory referendum exists that is applicable solely to very specific  laws and contracts but not to all cantonal laws in general. For example, since 1999 in Nidwalden, the new mandatory referendum is applicable solely to administrative permissions  on subterraneous exploitation or storage (art.52, 6. CC) and in Bern exclusively to  intercantonal treaties and alterations in the cantonal demarcations (art. 61, 1 lit. c, d). In such cases, the mandatory referendum is treated and regarded as nonexistent for the construction of  the index of direct democracy because these special cases do not form part of the daily  political decision-making process. For this reason, I have usually excluded these mandatory  referenda on treaties and special issues. Included however are the extraordinary statutory  referenda because they might shed light on the entire range of statutory referenda (jointly with
the optional statutory referendum) that exists in a canton. In general, however, the analysis of  the mandatory statutory referendum addresses all those applicable to all cantonal laws,decrees and by-laws.

(TO BE CONTINUED)

Justina AnastasiaValerie Fischer
from  Deutschland
Approved on the application of  Prof. Dr. Gebhard Kirchgässner  and  Prof. Dr. Simon Hug

DISSERTATION /2005
of the University of St.Gallen
Graduate School of Business Administration,
Economics, Law and Social Sciences (HSG)  to obtain the title of Doctor of Economics

NOTES

57 Personal communication with Mr. DILLIER of Rechstdienst of Obwalden (24/08/2004).

58 Personal communication with Mr. DILLIER of the Rechtsdienst of Obwalden (24/08/2004).

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