Doctrine

N. 1 Legislative history Art. 158 Cst. largely corresponds to former Art. 91 of the old Constitution. The provision enshrines the principle of public access to parliamentary deliberations at the constitutional level. In the Federal Council message on a new Federal Constitution of 20 November 1996 (BBl 1997 I 1, 362), the principle of public access is described as an «essential element of parliamentary democracy». The total revision of the Federal Constitution adopted the principle unchanged, with its systematic placement in the section on the Federal Assembly underlining its institutional character.

N. 2 Systematic classification Art. 158 Cst. is found in Chapter 5 of the Federal Constitution on the federal authorities, in Section 1 on the Federal Assembly. The provision is closely related systematically to: → Art. 34 Cst. (Political rights), which guarantees democratic participation → Art. 16 Cst. (Freedom of opinion and information), which protects access to information → Art. 17 Cst. (Freedom of the media), which enables reporting on parliamentary proceedings ↔ Art. 47 ParlA, which regulates the confidentiality of committee deliberations

N. 3 Elements of the offence / Content of the norm The term «sessions» encompasses, according to prevailing doctrine (Ehrenzeller/Schindler/Schweizer/Vallender, St. Gallen Commentary on the Cst., 4th ed. 2023, Art. 158 N. 3), exclusively the plenary sessions of the National Council and Council of States. «Public access» means free access for the public and media to the council chambers during deliberations. The term «Councils» refers to both chambers of the Federal Assembly, but not to their committees or other bodies (Waldmann/Belser/Epiney, BSK Cst., 2nd ed. 2024, Art. 158 N. 5).

N. 4 Legal consequences The principle of public access establishes a constitutional right to access council sessions. The practical implementation is carried out through the rules of procedure of the councils (Art. 15 RCS, Art. 20 RCN). Violations of public access can lead to the invalidity of decisions, provided that public access was not excluded in accordance with the law (Häfelin/Haller/Keller/Thurnherr, Swiss Federal Constitutional Law, 10th ed. 2020, N. 1789).

N. 5 Points of contention The scope of statutory exceptions is disputed. Rhinow/Schefer/Uebersax (Swiss Constitutional Law, 3rd ed. 2016, N. 3452) advocate a restrictive interpretation: exceptions are only permissible where overriding public or private interests are at stake. In contrast, Müller (in: Ehrenzeller et al., Art. 158 N. 8) argues for a functional approach that takes account of the needs of efficient parliamentary work. There is agreement that committee sessions are not covered by the principle of public access (BGE 107 IV 185).

N. 6 Practice notes Public access to council sessions is ensured through live broadcasts and publication of the Official Bulletins. A formal council decision is required to exclude the public (Art. 4 ParlA). In practice, this occurs extremely rarely, such as on security policy matters. The confidentiality of committee sessions (Art. 47 para. 1 ParlA) constitutes the most important practical exception to the principle of public access. Journalists and interested citizens have access to extensive information about public deliberations through the media services of the Federal Assembly.

Case Law

#General Principles on Parliamentary Transparency

BGE 107 IV 185 of 27 November 1981 Publication of official secret proceedings; confidentiality of committee proceedings Art. 158 BV stands in systematic connection with Art. 293 SCC, which criminalises the publication of official secret proceedings.

«Rather, it is in the well-understood interest of the most free possible opinion formation, unimpeded by any untimely external influence, to keep meetings of parliamentary committees secret as long as the committee in question deems it necessary according to the course of its deliberations.»

#Exceptions to Transparency

Judgment 6B_186/2012 of 11 January 2013 Publication of secret committee proceedings; formal concept of secrecy The Federal Supreme Court clarified the legal foundations for non-public parliamentary proceedings.

«According to Art. 47 para. 1 of the Federal Act of 13 December 2002 on the Federal Assembly (Parliament Act, ParlA; SR 171.10), in force since 1 December 2003, committee deliberations are confidential.»

BGE 108 IV 185 of 17 September 1982 Interpretation of the concept of «secret» in parliamentary proceedings The judgment defines the scope of the transparency principle for parliamentary documents.

«The concept of 'secret' is synonymous with legally or officially declared exclusion of the public. A report by the DDPS to the members of the Management Audit Committee of the National Council designated as 'confidential' remains 'secret' as long as it is not intended for the public.»

#Relationship to the Administrative Transparency Principle

FDPIC Recommendation of 24 August 2020 (Parliamentary Services) Applicability of the Freedom of Information Act to parliamentary activities The recommendation clarifies the relationship between Art. 158 BV and the general transparency principle.

«The Freedom of Information Act does not apply to the Federal Assembly and its members (Art. 2 FOIA e contrario), but only to the Parliamentary Services as part of the Federal Administration (Art. 2 para. 1 lit. c FOIA), and this subject to the special provisions of the Parliament Act (Art. 47 para. 1 ParlA in conjunction with Art. 4 FOIA).»

#Access to Parliamentary Documents

BGE 133 II 209 of 25 May 2007 Access to minutes of official proceedings; transparency principle Although the judgment concerns the governing bodies of the Federal Supreme Court, it is also relevant for understanding parliamentary transparency.

«Access to official documents of the governing bodies of the Federal Supreme Court is possible under the general conditions of the Federal Act on the Transparency Principle based on Art. 28 SCA, when an administrative act is under discussion.»

#Historical Development and Current Practice

FDPIC Recommendation of 5 August 2024 (SFAO audit reports) Transparency in parliamentary oversight; special provisions of the Parliament Act The most recent recommendation shows the limits of the transparency principle in parliamentary oversight functions.

«The disclosure obligations under Art. 76b ff. SRN do not relate to the capacity as a member of parliament, which argues against applying the Freedom of Information Act to parliamentary activity.»

#Constitutional Classification

The Federal Supreme Court has confirmed in consistent case law that Art. 158 BV, as an organisational norm, establishes the principle of parliamentary transparency, but that this can be concretised through statutory exceptions. The case law on Art. 293 SCC shows that the constitutionally enshrined transparency of council meetings is not absolute, but permits factually justified exceptions, particularly for:

• Committee meetings (Art. 47 para. 1 ParlA)
• Parliamentary group meetings (Art. 15 para. 4 SRN, Art. 20 para. 4 SRC)
• Secret deliberations on security-related topics

Practice over the last 20 years shows increasing tension between the transparency requirement of democracy and the functional requirements of effective parliamentary work.