Free mandate
Free mandate means that the elected MP exercises his mandate in parliament without being instructed. As the holder of the free mandate, the member of parliament is not bound to any orders from the voters, his party or his parliamentary group , but only to his conscience. In contrast to this is the imperative mandate .
Philosophical foundation
The conservative British politician and state philosopher Edmund Burke is considered the spiritual father of the free mandate , who declared in his speech to the voters of Bristol (1774):
“Your representative owes you not only his energy, but also his judgment; and he betrays you instead of serving you when he sacrifices his judgment to your opinion [...] Government and legislation are matters of reason and judgment, and not of inclination, and what kind of reason it is in which the determination is made precedes the discussion in which one group of people deliberates and another decides, and where those who draw the conclusions are perhaps three hundred miles from those who hear the arguments. Expressing an opinion is the right of all people; a voter's opinion is a weighty and respectable opinion which a representative should always be happy to hear and which he should always consider seriously. But decisive instructions, fixed mandates, which the member of parliament has to obey blindly, although he contradicts the clear conviction of his judgment and his conscience; such a thing is completely unknown to the laws of our country. "
The background to this speech was that Burke campaigned in parliament for the repeal of the Penal Laws , which, among other things, restricted the export of Irish goods. In the English trading city of Bristol, however, the politically and economically relevant circles rejected increased competition from free trade with Ireland. With his speech, Burke made it clear to his constituents that he saw economic growth and prosperity across the kingdom as more important than the interests of the local electorate.
Free mandate and bribery of parliamentarians
There is a tension between the free mandate and the offense of bribery of parliamentarians . According to the traditional view, freedom of mandate included that the motives for voting behavior should not be subject to any control. This view has changed over time. Today the prevailing opinion is that in order to avoid corruption, the free mandate has to be given back. After the vote of no confidence in the Willy Brandt government in 1972 due to bribery of members of parliament, the German Bundestag adopted an order of honor in which the bribery of members of parliament was forbidden. Since 1994, bribery of parliamentarians has been a criminal offense in Germany under Section 108e of the Criminal Code .
Germany
Bundestag
The independent mandate of the members of the German Bundestag is under federal constitutional law by Article 38. Para. 1 sentence 2 Basic Law enshrined (GG): "[The members] are subject to representatives of the whole people, not bound by orders or instructions and only to their conscience." This exempts the members of the Bundestag from being bound by orders and instructions (for example from their own party or another group, for example the voters in their constituency ) in their decision-making.
The MP is therefore only subject to his conscience when making a decision . The so-called parliamentary group obligation , which is often discussed in connection with the legislative bodies mentioned , does not exist. However, in reality the free mandate is restricted by a faction discipline. This means that the minority, which is defeated in the parliamentary group's votes, bows to the parliamentary group's majority and votes in the same way. The internal party democracy enshrined in Article 21.1 sentence 3 of the Basic Law also enables the party to influence its decision-making through possible exclusion or, for example, refusal to reinstate the member. Some justify this leverage by stating that the MPs were usually only allowed to vote by the party - be it by way of being a direct candidate in a constituency or by being elected on a state list .
Federal Council
In the Federal Council , however, there is no free mandate. The members of the Federal Council are internally bound by the instructions of their state government .
Attempts to restrict the free mandate
Obligation to pay when leaving the parliamentary group
Helmut Hass set a precedent for the scope of the free mandate of MPs. Before the state elections in Lower Saxony in 1967, the NPD had all candidates sign a bill of exchange for 30,000 DM (57,900 euros in today's purchasing power). This "change of security" should be due when the MP leaves the NPD parliamentary group. After hatred left the NPD parliamentary group, the NPD initiated enforcement ; However, this was rejected by the Regional Court of Braunschweig as immoral .
Rotation principle
The compatibility of the Greens rotation principle in the 1980s with the free mandate was controversial.
Austria
The free mandate of the members of the National Council and the Federal Council is anchored in Article 56, Paragraph 1 of the Federal Constitutional Act (B-VG) . You are not bound by any order. Under federal constitutional law, the free mandate of members of the state parliament is derived from the principle of parliamentary democracy and is also included in most state constitutions .
Switzerland
In Switzerland, the free mandate of the National Councils and Councils of States is guaranteed by the constitution. The so-called “prohibition of instructions” in Art. 161 sentence 1 of the Federal Constitution stipulates that the parliamentarians vote without instructions. You make active use of this right, especially in the Council of States.
Individual evidence
- ↑ Original: Your Representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion. [...] Government and Legislation are matters of reason and judgment, and not of inclination; and, what sort of reason is that, in which the determination precedes the discussion; in which one sett of men deliberate, and another decide; and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments? To deliver an opinion, is the right of all men; that of constituents is a weighty and respectable opinion, which a representative ought always to rejoice to hear; and which he ought always most seriously to consider. But authoritative instructions; Mandates issued, which the Member is bound blindly and implicitly to obey, though contrary to the clearest conviction of his judgment and conscience; these are things utterly unknown to the laws of this land. Edmund Burke: Speech to the electors of Bristol, November 3rd 1774 ( Memento of the original from April 23, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ Jesse Norman: Edmund Burke. The Visionary who invented modern Politics. William Collins, London 2014 ISBN 978-0-00-748964-0 pp. 90f.
- ↑ Uwe Hoffmann: The NPD. 1998, ISBN 3-631-35439-8 , p. 403; Uwe Hoffmann refers to Der Spiegel. 8/1970 ( online ) and the FAZ. dated April 9, 1970.
- ↑ Spiegel No. 14 of April 4, 1983, pp. 22 to 25: The Greens' fear of office and power. Are imperative mandate and rotation unconstitutional?
- ^ Theo Öhlinger : Constitutional Law. 6th edition. Vienna 2005, margin no. 411.
literature
- Ulli FH Rühl : The “Free Mandate”: Elements of an interpretation and problem history. In: The State . Journal of State Theory, Public Law and Constitutional History . 39 Vol., 2000, pp. 23-48.
- Norbert Leser : Considerations on the Free Mandate. In: Hedwig Kopetz, Joseph Marko, Klaus Poier (eds.): Sociocultural change in the constitutional state. Phenomena of political transformation. Festschrift for Josef Mantl on his 65th birthday . Volume 1. Böhlau Verlag, Vienna / Cologne / Weimar 2004, ISBN 3-205-77211-3 , pp. 95-102.