#1. Status of the provision

N. 1 Art. 139a FC has been repealed. It was inserted into the Federal Constitution by the Federal Decree of 4 October 2002 amending the popular rights and approved in the popular vote of 9 February 2003 (AS 2003 1949; BBl 2001 4803, 6080; 2002 6485; 2003 3111). It was repealed in the popular vote of 27 September 2009 with effect from that day (Federal Decree of 19 December 2008; AS 2009 6409; BBl 2008 2891, 2907; 2009 13, 8719). According to the official footnote, Art. 139a FC in the version of the Federal Decree of 4 October 2002 never entered into force.

N. 2 The provision therefore never had any legal effect. It creates no rights or obligations and cannot be relied on before any authority or court. It remains relevant because the current wording of → Art. 139, → Art. 139b, → Art. 140 para. 2 and → Art. 156 para. 3 FC goes back to the reforms of 2003 and 2009.

#2. Origins and content

N. 3 Art. 139a FC was the centrepiece of the 2002 reform of popular rights. The parts of the reform did not take effect at the same time. Art. 139b paras. 2 and 3, Art. 141a and Art. 156 para. 3 lets. a and d FC have been in force since 1 August 2003 (Federal Decree of 19 June 2003; AS 2003 1949). Art. 139a, Art. 139b para. 1 in its 2002 version, Art. 140 para. 2 let. abis and Art. 189 para. 1bis FC, by contrast, never entered into force; they required implementing legislation (see N. 6).

N. 4 The general popular initiative was to replace the popular initiative in the form of a general proposal (BBl 2006 5261, 5279). Its key difference concerned the legal level. According to the Federal Council's dispatch of 31 May 2006, it would have allowed voters to propose not only constitutional amendments but also statutory amendments, with Parliament determining the appropriate level (BBl 2006 5261, 5262; see 5266, referring to Art. 139a para. 1 FC). The Federal Supreme Court observed that the wording of Art. 139a FC resembled Art. 75 para. 1 of the Jura Constitution, under which the adoption, amendment or repeal of constitutional or statutory provisions may be requested in general terms (BGer 1P.470/2005 of 23 December 2005 consid. 3.1).

N. 5 As with a specifically drafted initiative, the unity of subject matter had to be respected; the Federal Supreme Court expressly lists Art. 139a para. 2 FC (2002 version) among the provisions imposing that requirement on federal popular initiatives (BGE 129 I 366 consid. 2.3). The planned procedure also had two particular features. First, Parliament could set a counter-proposal against the implementing act (BBl 2006 5261, 5262). Second, Art. 189 para. 1bis FC (2002 version) provided for an appeal to the Federal Supreme Court where the Federal Assembly disregarded the content and purpose of a general popular initiative (BBl 2006 5261, 5291 f.).

#3. Failure of the implementing legislation

N. 6 In its dispatch of 31 May 2006 (06.053), the Federal Council proposed a federal act introducing the general popular initiative and a federal decree bringing the 2002 reform fully into force (BBl 2006 5261). The bill exposes the complexity of the instrument. Depending on how the two chambers positioned themselves on the initiative, on the legal level and on a counter-proposal, numerous configurations arose, which the Federal Council set out in a separate annex as a modular system of possible enactments (BBl 2006 5261, 5313 ff.). The dispatch itself acknowledges the tension: as a popular right, the general popular initiative was to remain simple, clear and comprehensible (BBl 2006 5261, 5268).

N. 7 The federal chambers refused to consider the implementing act, first the National Council in December 2006 and then, in March 2007, the Council of States (see the Federal Council's opinion of 16 April 2008, BBl 2008 2907). The procedure thus lacked a statutory basis, and Art. 139a FC could not be brought into force.

N. 8 The Political Institutions Committee of the National Council drew the consequence with parliamentary initiative 06.458. In its report of 21 February 2008, it proposed abandoning the introduction of the general popular initiative (BBl 2008 2891). The Federal Council supported the proposal (BBl 2008 2907). The Federal Assembly adopted the corresponding federal decree on 19 December 2008, and the People and the Cantons approved it on 27 September 2009 (AS 2009 6409).

#4. Effects on current law

N. 9 The decree did more than remove Art. 139a FC; it also tidied up the provisions linked to it. Art. 140 para. 2 let. abis and Art. 189 para. 1bis FC were repealed. Art. 139 FC, Art. 139b para. 1 FC, Art. 140 para. 2 let. b FC and Art. 156 para. 3 lets. b and c FC were given new wording, all in force since 27 September 2009 (AS 2009 6409).

N. 10 Since then the Constitution again recognises the general proposal as a form of popular initiative for the partial revision of the Federal Constitution (→ Art. 139 para. 2 FC). If the Federal Assembly agrees with such an initiative, it drafts the partial revision in line with the initiative. If it rejects the initiative, the People decide whether it should be pursued (Art. 139 para. 4 and Art. 140 para. 2 let. b FC). Art. 156 para. 3 let. b FC requires the legislature to ensure that, even where the chambers disagree, a decision is reached on implementing a popular initiative in the form of a general proposal that the People have approved.

N. 11 There is still no popular initiative at federal level to amend a federal act. The popular initiative seeks a total or partial revision of the Federal Constitution (→ Art. 138 and → Art. 139 FC). With Art. 189 para. 1bis FC, the planned judicial review of implementation also fell away. Acts of the Federal Assembly cannot be challenged before the Federal Supreme Court unless the law provides an exception (→ Art. 189 para. 4 FC).

#5. Assessment

N. 12 The failure of the general popular initiative shows how hard it is to fit a popular right with a free choice of legal level into the bicameral system and into the coexistence of constitutional and statutory referendums. The constitutional provision was adopted before the procedure had been worked out; only the implementing legislation revealed its complexity (see BBl 2006 5261, 5268, 5313 ff.).

N. 13 Braun Binder rejects the conclusion that reforms of popular rights are doomed from the outset; numerous successful reforms, she argues, show otherwise (Nadja Braun Binder, Gescheiterte Allgemeine Volksinitiative: Sind die Volksrechte reformträge?, 2007). On the procedure planned before the failure, see the same author, Auf dem Weg zur Umsetzung der allgemeinen Volksinitiative, 2006.

#6. Practice notes

N. 14 Art. 139a FC must not be cited as current law. For the general proposal, Art. 139 paras. 2 and 4 FC is decisive; for the voting procedure on an initiative and a counter-proposal, → Art. 139b FC. The text of the 2002 version is published in the Official Compilation (AS 2003 1949).

N. 15 Risk of confusion: in older Federal Supreme Court case law, "Art. 139a" regularly refers to a provision of the former Federal Act on the Organisation of the Federal Administration of Justice (OG). It governed the revision of a Federal Supreme Court judgment after the European Court of Human Rights had found a violation of the ECHR (e.g. BGE 123 I 283; BGE 124 II 480). That function is now performed by Art. 122 of the Federal Supreme Court Act (BGG). It has nothing to do with Art. 139a FC.

Art. 139a FC never entered into force and was repealed in 2009 (AS 2003 1949; AS 2009 6409). There is therefore no case law applying it. The Federal Supreme Court has, however, referred to the version approved in 2003 in two decisions as an aid to interpretation.

#I. References to Art. 139a FC (2002 version)

BGE 129 I 366 consid. 2.3 27 August 2003 Unity of subject matter in an amendment to the Zurich cantonal constitution (relations between churches and the state). The Court lists Art. 139a para. 2 FC, in its 2002 version, among the provisions requiring unity of subject matter for federal popular initiatives.

BGer 1P.470/2005 of 23 December 2005 consid. 3.1 The Jura popular initiative "Contre l'aérodrome de Bressaucourt", which sought a consultative popular vote, had been declared invalid; the Court upheld that decision. On whether a cantonal initiative may only concern rules of law, it endorsed an interpretation that relied in part on the wording of Art. 139a FC, which it found similar to Art. 75 para. 1 of the Jura Constitution.

#II. Risk of confusion: Art. 139a OG

Many search results for "Art. 139a" in the case law concern Art. 139a of the former Federal Act on the Organisation of the Federal Administration of Justice (OG): the revision of a Federal Supreme Court judgment after the European Court of Human Rights has found a violation of the ECHR. This is now governed by Art. 122 of the Federal Supreme Court Act (BGG). These decisions have nothing to do with Art. 139a FC.

BGE 123 I 283 20 October 1997 Revision for violation of the ECHR under Art. 139a OG; start of the time limit for revision and relationship with Art. 50 ECHR.

BGE 124 II 480 24 August 1998 Art. 139a OG also applies to decisions rendered before it entered into force; revision is admissible only where redress cannot be obtained in another way.

#III. Related case law on the general proposal in cantonal law

The question the Federal Supreme Court would have had to decide under Art. 189 para. 1bis FC (2002 version), namely whether a parliament has faithfully implemented a popular request formulated in general terms, continues to arise in cantonal law. The following decisions concern cantonal initiatives. They illustrate the issue but do not interpret Art. 139a FC.

BGE 141 I 186 consid. 5 27 May 2015 Implementation of the Zurich "Kulturlandinitiative", which had been approved as a general proposal. The cantonal parliament had refused to consider the implementing bill; the Court held that this failed to implement the initiative correctly in substance and violated the voters' political rights (Art. 34 para. 1 FC).

BGE 143 I 129 consid. 2.4 14 December 2016 Invalidation of a Fribourg constitutional initiative in the form of a general proposal for breach of the prohibition of discrimination (Art. 8 para. 2 FC). Even a general proposal cannot be interpreted more broadly than the will of its signatories allows.