#1. Legislative History
N. 1 The current configuration of the right of initiative at the federal level dates back to the total revision of the Federal Constitution of 1874, which introduced the popular initiative for partial revision (FG 1872 I 777, 821–823). The obligatory referendum for constitutional amendments had already existed since 1848. The initiative in the form of a general suggestion was introduced by popular vote in 1891 (FG 1890 I 1, 15–18), while the specific draft had already been possible since 1874.
N. 2 The limitation of mandatory international law was only explicitly enshrined in Art. 139 para. 3 FC with the new Federal Constitution of 1999 (FG 1997 I 1, 380–382). Previously, according to the practice of the Federal Assembly, there was no possibility to declare popular initiatives invalid for violation of the ECHR, as the controversy over the popular initiative "for a reasonable asylum policy" in 1994–1996 showed (FG 1994 III 1486; FG 1996 I 1355). The constitutional legislator reacted with the 1999 revision to this unsatisfactory legal situation.
N. 3 The most recent development concerns the discussion since 2008 on expanding the grounds for invalidity. The Federal Council presented a comprehensive report in 2010 that examined various reform options (FG 2010 2263). The parliamentary initiative 10.440 "Declaration of invalidity of popular initiatives. Also in case of violation of the core content of fundamental rights" was suspended in 2015 (AB 2015 N 1096). The debate over the material limits of the right of initiative remains a perennial theme in Swiss constitutional politics.
#2. Systematic Classification
N. 4 Art. 139 FC is located in Title 4 "People and Cantons" and forms, together with Art. 138 FC (popular initiative for total revision) and Art. 139b FC (procedure for an initiative and counter-proposal), the heart of direct democratic participation rights at the federal level. The provision concretizes the fundamental right to political rights guaranteed in Art. 34 FC for the specific case of constitutional initiative (Tschannen, Die Formen der Volksinitiative und die Einheit der Form, ZBl 2002, 2–29, 4).
N. 5 The connection to Art. 136 FC (Political Rights) and Art. 173 para. 1 lit. f FC (Powers of the Federal Assembly regarding popular initiatives) is systematically central. Art. 190 FC plays an important role in the question of the justiciability of accepted popular initiatives, while Art. 192–195 FC establish the limits of constitutional revision.
N. 6 In the international context, Art. 139 FC must be read together with Art. 5 para. 4 FC (observance of international law). Practice shows tensions between popular sovereignty and international law obligations, as exemplarily visible in the minaret initiative (accepted 2009) and the deportation initiative (accepted 2010) (Biaggini, Die schweizerische direkte Demokratie und das Völkerrecht, ZÖR 2010, 325–343, 330–335).
#3. Elements of the Offence / Normative Content
#3.1 Number of Signatures and Collection Period (Para. 1)
N. 7 The number of 100,000 signatures of eligible voters corresponds to about 1.9% of those entitled to vote (as of 2024: approx. 5.5 million). This threshold has remained unchanged since 1977, although the number of eligible voters has more than doubled since then (Hangartner, Unklarheiten bei Volksinitiativen, AJP 2011, 471–478, 472). The relative lowering of the threshold is partially compensated by the professionalization of signature collection.
N. 8 The 18-month period begins with the official publication of the initiative text in the Federal Gazette (Art. 69 para. 1 BPR). BGE 131 II 449 E. 3.2 established a strict practice: voting right certificates must be obtained from the competent authority within the collection period. Subsequent remedies are excluded.
N. 9 The general suggestion formulates a concern in general terms and leaves the elaboration to the Federal Assembly. This form now makes up less than 5% of all initiatives (Auer, Contre-projet indirect, procédure à une phase et clause référendaire conditionnelle, ZBJV 1986, 209–248, 215). The last initiative submitted as a general suggestion was the fat cat initiative (2008), which was however converted into a specific draft before the vote.
N. 10 The specific draft must be formulated as a fully drafted constitutional text. It is subject to strict formal requirements: clarity, consistency and ability to be integrated into the system of the Federal Constitution (Tschannen, ZBl 2002, 8–12). Practice shows increasing professionalization of text drafting, often with the involvement of specialized law firms.
#3.3 Grounds for Invalidity (Para. 3)
N. 11 Unity of form requires that an initiative be submitted either as a general suggestion or as a specific draft, but not as a mixed form. BGE 129 I 381 E. 2 confirmed that mixed initiatives must be declared invalid in their entirety. A division is not provided for under federal law, even though some cantons recognize this in their law.
N. 12 Unity of subject matter requires a factual connection between all parts of an initiative. BGE 129 I 366 E. 2 clarified: voters must not be put in a predicament where they must accept parts they wish to reject. The test is objective: Could a reasonable voter want to judge different parts differently for factual reasons?
N. 13 Mandatory international law (ius cogens) comprises, according to the practice of the Federal Council, at least: the prohibition of torture, genocide, slavery, the prohibition of violence, the non-refoulement principle as well as the non-derogable guarantees of the ECHR (FG 2010 2263, 2291). This enumeration is not exhaustive; the concept develops with international law.
N. 14 Factual impossibility of implementation is recognized by the Federal Council and Federal Assembly as an implicit ground for invalidity, but finds no express basis in Art. 139 para. 3 FC. Practice is extremely restrained: only in cases of evident impossibility of implementation is an initiative declared invalid (FG 2008 2891, 2907–2908 regarding the gold initiative).
#4. Legal Consequences
N. 15 Initiatives declared valid in the form of a general suggestion lead to a two-stage procedure according to para. 4: If the Federal Assembly approves, it drafts a proposal. If rejected, the people first decide on the suggestion. Only with the people's approval must the Federal Assembly act.
N. 16 Specific drafts go directly to popular vote (para. 5). The Federal Assembly gives a voting recommendation and can draft a direct or indirect counter-proposal (for the direct counter-proposal: Art. 139 para. 5 and Art. 139b FC). The historical success rate is about 11% (24 out of 216 initiatives put to vote since 1891, as of end 2023).
N. 17 Accepted popular initiatives become part of the Federal Constitution and enjoy the protection of Art. 190 FC. The Federal Court cannot review them for their constitutionality. In conflicts with the ECHR, however, the Federal Court applies its "PKK practice": the ECHR takes precedence even over subsequent constitutional law (BGE 139 I 16 E. 5).
#5. Points of Dispute
N. 18 The scope of mandatory international law is fiercely disputed. Part of the doctrine advocates for an autonomously constitutional, expanded interpretation that also encompasses fundamental treaties such as the ECHR or the UN Covenants (Keller/Lanter/Fischer, Volksinitiativen und Völkerrecht, ZBl 2008, 121–154, 140–145). The prevailing doctrine and practice follow the international law definition (Reich, Direkte Demokratie und völkerrechtliche Verpflichtungen, ZaöRV 2008, 979–1025, 1005).
N. 19 Also controversial is the question of additional grounds for invalidity. Rhinow/Schefer/Uebersax (Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 2810–2815) argue for recognizing violations of the core content of fundamental rights as grounds for invalidity. The opposing view emphasizes the exhaustive character of Art. 139 para. 3 FC (Tschannen/Zimmerli/Müller, Allgemeines Verwaltungsrecht, 4th ed. 2014, § 51 N. 28).
N. 20 The justiciability of the validity examination by the Federal Assembly is also disputed. While the Federal Court limits its cognition to arbitrariness (BGE 129 I 185 E. 3.2), voices in the doctrine demand full judicial review to protect political rights (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, 685–687).
#6. Practical Guidance
N. 21 Initiative committees should submit the text to the Federal Chancellery early for informal preliminary examination. This examines title, form and translation-technical questions, but not material validity (Art. 69 para. 2 BPR). Consultation avoids later complications.
N. 22 Signature collection requires precise planning. Empirical values show: professional collectors achieve 10–15 valid signatures per hour, volunteers 3–5. For 100,000 valid signatures, about 110,000–115,000 signatures must be collected due to rejection. Certification by the municipalities additionally requires 2–4 weeks.
N. 23 In text drafting, attention must be paid to later implementability. Transitional provisions are often decisive for success. The minaret initiative (Art. 72 para. 3 FC) shows exemplarily how a precise text without transitional law can lead to implementation problems (Biaggini, ZÖR 2010, 340–343).
N. 24 Politically, the early search for alliances is recommended. Initiatives with broad support (parties, associations, civil society) have significantly higher chances of success. Withdrawal in favor of an indirect counter-proposal can be a successful strategy, as the examples of the Alpine initiative (1994) or the detention initiative (2004) show.