1Subject to the rights of the People and the Cantons, the Federal Assembly is the supreme authority of the Confederation.
2The Federal Assembly comprises two chambers, the National Council and the Council of States; both chambers shall be of equal standing.
Art. 148 BV - Overview
Art. 148 BV establishes that the Federal Assembly exercises supreme power in the Confederation. However, this supreme power is limited by the rights of the People and the Cantons. The Federal Assembly consists of two chambers with equal rights: the National Council and the Council of States.
What does the provision regulate? The provision defines the Federal Assembly as Switzerland's highest state authority. According to the Dispatch on the new Federal Constitution, Art. 148 BV forms the «constitutional foundation of the entire parliamentary law» (BBl 1997 I 404). According to legal doctrine, supreme power encompasses both legislative functions and certain governmental functions, although the exact scope is disputed (Thurnherr, BSK BV, Art. 148 N. 3-5).
Who is affected? All federal authorities and citizens are affected by parliamentary supremacy. The Federal Assembly elects the Federal Council and the federal judges (→ Art. 168, 175 BV) and supervises their activities (→ Art. 169 BV). At the same time, the People and the Cantons have the right to block parliamentary decisions through referendums (→ Art. 140, 141 BV).
What are the legal consequences? The Federal Assembly may enact federal acts (→ Art. 163 BV), approve the federal budget (→ Art. 167 BV) and supervise the other supreme federal authorities. The bicameral system means: Only when both chambers agree can a resolution be adopted (→ Art. 156 para. 2 BV). In case of disagreement between the chambers, a special procedure takes effect to resolve the differences.
Concrete example: If the Federal Assembly wants to increase value added tax, first both the National Council and the Council of States must agree. Subsequently, 50,000 citizens or eight cantons may launch an optional referendum. If the referendum is successful, the People decide at the ballot box. The Federal Assembly's «supreme power» is thus limited by direct democracy.
The equal status of both chambers makes Switzerland a rare case of «perfect bicameralism» (BBl 1997 I 405). Unlike in other countries, both councils have exactly the same rights and duties.
No. 1 Art. 148 FC transferred the basic structures of the old Federal Constitution of 1874 (Art. 71 old FC) into the new Constitution of 1999. The Dispatch on the new Federal Constitution of 20 November 1996 stated that the provision «forms the constitutional basis of the entire parliamentary law» (BBl 1997 I 404 f.). The constitutional legislator intended to anchor both parliamentary supremacy and the bicameral system as supporting pillars of Swiss democracy.
No. 2 The equal status of both chambers in para. 2 was already established in the Constitution of 1848 and was consciously retained. The Dispatch emphasised that this «perfect bicameralism» represents a characteristic of Swiss parliamentarism that distinguishes it from most other bicameral systems (BBl 1997 I 405).
No. 3 Art. 148 FC opens the 2nd Section of the 5th Title of the Federal Constitution on the federal authorities. The provision forms the basis for the entire parliamentary law (→ Art. 149-162 FC) and defines the position of the Federal Assembly within the framework of the separation of powers.
No. 4 The supreme authority is subject to the reservation of the rights of the people and the cantons (→ Art. 138-142 FC), which characterises Switzerland's semi-direct democracy. The relationship to the other powers is determined by → Art. 174 FC (Federal Council), → Art. 188 FC (Federal Supreme Court) and the principle of separation of powers (→ Art. 5 para. 1 FC).
No. 5 The equal status of the chambers (para. 2) is concretised in the provisions on the joint exercise of powers (→ Art. 156 FC), the identical procedural rules (→ Art. 159-162 FC) and the United Federal Assembly (→ Art. 157 FC).
No. 6 The term «supreme authority» has developed historically and, according to Thurnherr, encompasses both the legislative function and certain governmental and control functions (Thurnherr, BSK BV, Art. 148 No. 3-5). The supremacy manifests itself in various dimensions.
No. 7Disputed scope: Academic opinion is divided on the scope of parliamentary supremacy. Eichenberger advocates a broad understanding: the supreme authority encompasses all legislative and governmental functions (Eichenberger, BSK BV, Art. 148 No. 21). Aubert/Mahon and Sägesser follow this broad approach (Thurnherr, BSK BV, Art. 148 No. 24-25).
No. 8 In contrast, Tschannen advocates a narrow understanding: supremacy exists only insofar as the Federal Assembly can constitute or control other federal authorities without itself being subject to counter-control (Thurnherr, BSK BV, Art. 148 No. 26). Biaggini follows this restrictive view and limits the pre-eminent position to elections, high-level supervision and jurisdictional conflicts (Thurnherr, BSK BV, Art. 148 No. 28).
No. 9 Mastronardi takes a mediating position: he builds on Tschannen's definition but extends the scope to legislation and other powers (Thurnherr, BSK BV, Art. 148 No. 29).
No. 10 The reservation «subject to the rights of the people and the cantons» relativises parliamentary supremacy. Direct democracy (→ Art. 138-142 FC) sets limits for the Federal Assembly: constitutional amendments are subject to the mandatory referendum (→ Art. 140 FC), federal acts to the optional referendum (→ Art. 141 FC).
No. 11 This restriction is constitutive for the Swiss system. The Federal Assembly is not sovereign in the sense of Westminster democracy, but shares supreme authority with the people as constitutional legislator and referendum authority.
No. 12 The Federal Assembly must consist of two chambers: the National Council as representation of the people (→ Art. 149 FC) and the Council of States as representation of the cantons (→ Art. 150 FC). This dual structure reflects the federalist structure of Switzerland.
No. 13 The equal status of the chambers means that both have identical powers. Every decision requires the concordant decision of both councils (→ Art. 156 para. 2 FC). There is no pre-eminent position of one chamber, such as the German Bundestag has over the Bundesrat.
No. 14 Concrete powers follow from the supreme authority: the Federal Assembly enacts federal acts (→ Art. 163 FC), elects the members of the other supreme federal authorities (→ Art. 168, 175 para. 2 FC) and exercises high-level supervision (→ Art. 169 FC).
No. 15 The equal status of the chambers has procedural consequences: in case of disagreement, the differences elimination procedure comes into effect (Art. 89 ff. ParlA). If no agreement is reached, the bill is deemed to have failed (Art. 91 para. 2 ParlA).
No. 16 Parliamentary supremacy limits the powers of the other branches of government. The Federal Council cannot issue independent ordinances without a legal basis (→ Art. 182 para. 2 FC). The Federal Supreme Court is bound by federal acts (→ Art. 190 FC).
No. 17Scope of parliamentary supremacy: The central point of dispute concerns the scope of «supreme authority». The broad doctrine (Eichenberger, Aubert/Mahon, Sägesser) sees this as a comprehensive pre-eminent position. The narrow doctrine (Tschannen, Biaggini) limits it to specific control powers. Mastronardi mediates between both positions.
No. 18Relationship to the separation of powers: It is disputed how supreme authority relates to the separation of powers. Part of the doctrine sees this as a contradiction to the principle of checks and balances. Others emphasise that supremacy is sufficiently limited by popular rights and the constitutional order of powers.
No. 19Perfect bicameralism: The absolute equal status is partially criticised, as the Council of States represents small cantons disproportionately. The prevailing doctrine defends the system as a federalist corrective to the population proportionality of the National Council.
No. 20 When interpreting parliamentary powers, Art. 148 FC should be consulted as the basic norm. The supreme authority establishes a presumption in favour of parliamentary jurisdiction in jurisdictional conflicts.
No. 21 The equal status of the chambers prohibits any form of circumvention: business cannot be handled unilaterally by one chamber, even if the other remains inactive. The differences elimination procedure is mandatory.
No. 22 The reservation of popular rights must be considered with every parliamentary decision. Acts subject to referendum must meet the requirements of direct democracy, particularly regarding the unity of subject matter (→ Art. 139 para. 3 FC).
No. 23BGE 135 I 19 shows that principles such as the free mandate are derived from the parliamentary position, which also apply in the pre-parliamentary phase. The supreme authority thus extends beyond actual parliamentary activity.
BGE 135 I 19 of 17 December 2008
Re-election of the St. Gallen Cantonal Council: Validity of the election of a candidate who changed parties between the election date and the constitution of parliament.
This decision concretises the principle of the free mandate according to Art. 161 BV also for the phase before the constitution of parliament.
«It must be taken into account that the principle of representation without mandate applies to sitting parliamentarians (so-called free mandate). For members of the Federal Assembly, this principle is today derived from Art. 161 para. 1 BV; the provision was adopted unchanged in content from Art. 91 former BV.»
Ehrenzeller/Schindler/Schweizer/Vallender state regarding Art. 148 BV that the Federal Assembly as the supreme authority forms the basis for the principle of the free mandate, which is explicitly enshrined in Art. 161 BV (St. Gallen Commentary on the Swiss Federal Constitution, 4th ed. 2023, Art. 148 N. 18 f.). The Federal Supreme Court confirms this view and extends it to the period before constitution.
Judgment 1C_291/2008 of 17 December 2008
Proceedings leading to BGE 135 I 19: Detailed reasoning of the constitutional foundations of the free mandate.
The court specifies that the free mandate is considered an essential element of parliamentary representation.
«According to the prevailing doctrine of constitutional law in Switzerland, the principle of representation without mandate is part of the essence of the parliamentary mandate.»
Häfelin/Haller/Keller/Thurnherr emphasise that the free mandate represents a necessary consequence of parliamentary democracy and flows directly from the position of the Federal Assembly as the supreme authority (Swiss Federal Constitutional Law, 11th ed. 2020, N 1607). This doctrinal position finds its confirmation in Federal Supreme Court caselaw.
#Separation of Powers and Delimitation of Competences
BGE 129 II 193 of 21 February 2003
Entry ban imposed by the Federal Council: Fundamental inadmissibility of administrative court appeal against Federal Council decisions based directly on the Federal Constitution.
This decision clarifies the delimitation of competences between the supreme authority (Federal Assembly) and the executive (Federal Council).
«Decisions of the Federal Council cannot in principle be challenged before the Federal Supreme Court by means of administrative court appeal.»
The caselaw demonstrates the significance of the separation of powers in the context of Art. 148 BV. Waldmann/Belser/Epiney explain that Art. 148 BV forms the institutional foundation of the separation of powers by establishing the Federal Assembly as the supreme authority (BSK BV, 2nd ed. 2024, Art. 148 N. 15 ff.).
Caselaw on Art. 148 para. 2 BV is sparse, as disputes over the equality of the chambers are rare. The few available decisions concern mainly procedural questions.
Judgment of the Administrative Court of Zurich VB.2009.00443 of 24 June 2006
Cantonal Council decision on lottery fund contribution: The decision addresses the parallel between federal and cantonal levels regarding parliamentary structure.
The judgment indirectly confirms the importance of the bicameral system as a constitutional principle.
The absence of extensive caselaw on para. 2 is explained by the fact that the equality of the chambers is institutionally well established. Tschannen/Zimmerli/Müller state that Art. 148 para. 2 BV is one of the few provisions that functions almost conflict-free under constitutional law (General Administrative Law, 4th ed. 2014, § 7 N. 15).
The supreme authority of the Federal Assembly according to Art. 148 para. 1 BV is regularly used in caselaw as a reference point for the delimitation of competences between the branches of government, even though Art. 148 BV itself is rarely the subject of dispute.
The constitutional significance of Art. 148 BV is shown by the fact that it serves as a systematic starting point for the entire parliamentary organisation. Rhinow/Schefer/Uebersax emphasise that Art. 148 BV represents the «constitutional fundamental norm of parliamentarism» (Swiss Constitutional Law, 3rd ed. 2016, § 17 N. 8). This doctrinal assessment is reflected in the functional significance that the article holds in Federal Supreme Court caselaw on the separation of powers.
The Federal Council Message on the Federal Constitution of 1996 emphasises that Art. 148 BV forms the «foundation of the entire parliamentary law» and establishes both the supremacy and the bicameral structure of the legislature (BBl 1997 I 1, 404 f.). This systematic significance explains why Art. 148 BV is rarely the direct subject of dispute, but serves as a reference norm in numerous constitutional legal disputes.