#1. Legislative History
No. 1 The constitutional anchoring of parliamentary initiative and motion rights in Art. 160 FC was accomplished within the framework of the total revision of the Federal Constitution of 1999. The provision transferred parliamentary practice that had existed since 1848 into the new Constitution and thereby codified established democratic participation rights (BBl 1997 I 1, 404). The constitutional legislator sought to expressly anchor parliamentary instruments for policy-making at the constitutional level and thereby underscore their fundamental significance for the Swiss parliamentary system.
No. 2 The distinction between the right of initiative (para. 1) and the right of motion (para. 2) was already established in the old Federal Constitution and was deliberately maintained during the update. While the right of initiative enables the launching of new business, the right of motion relates to the co-shaping of proceedings already pending. This division reflects the different phases of the parliamentary legislative process.
#2. Systematic Classification
No. 3 Art. 160 FC stands in Chapter 2 of Title 5 on the Federal Authorities and is part of the provisions on the Federal Assembly (Art. 148–173 FC). The provision forms, together with → Art. 161 FC (prohibition of instructions) and → Art. 162 FC (immunity), the constitutional foundation for the independence of parliamentary activity. In the context of the principle of separation of powers (→ Art. 144 FC), Art. 160 FC secures legislative initiative competence vis-à-vis the executive.
No. 4 The implementing provisions are found in the Parliament Act (ParlA, SR 171.10), particularly in Art. 107–136 ParlA for parliamentary initiatives, motions and postulates. The relationship to the political rights of citizens (→ Art. 136–142 FC) is complementary: While the popular initiative emanates directly from the people, Art. 160 FC enables elected representatives and institutional actors to initiate legislative processes.
#3. Elements of the Offence / Normative Content
No. 5 Entities entitled to initiative (para. 1): The circle of entities entitled to initiative comprises four categories:
- Each individual member of a council (individual initiative)
- Each parliamentary group as a parliamentary association (parliamentary group initiative)
- Each parliamentary committee (committee initiative)
- Each canton (cantonal initiative)
The right of initiative belongs to these actors independently and autonomously from each other. A minimum number of supporters is not prescribed by constitutional law, but may be regulated by statute.
No. 6 Entities entitled to motion (para. 2): The right of motion on pending business belongs to only two categories:
- Members of councils
- The Federal Council as a collegiate body
It is noteworthy that parliamentary groups, committees and cantons have no constitutional right of motion. The Federal Council receives a privileged position in the legislative procedure through para. 2, although it possesses no right of initiative under para. 1.
No. 7 Subject matter: The "initiatives" within the meaning of para. 1 encompass, according to prevailing doctrine, all parliamentary procedural requests that aim at the creation, amendment or repeal of federal law (Ehrenzeller/Schindler/Schweizer/Vallender, St. Gallen Commentary FC, 4th ed. 2023, Art. 160 No. 8). The term is to be understood broadly and covers parliamentary initiatives in the narrower sense, but also motions and postulates.
#4. Legal Consequences
No. 8 The right of initiative establishes a constitutional claim to formal treatment of the procedural request in the parliamentary procedure. The councils are obligated to deliberate and decide on submitted initiatives. A refusal of treatment would violate the constitutional right.
No. 9 The right of motion guarantees the possibility of concrete influence on the content of drafts during parliamentary deliberation. Motions may be directed at amendment, supplementation, deletion or referral back. The council must vote on motions made; non-treatment is inadmissible.
No. 10 The exercise of rights under Art. 160 FC is subject to parliamentary autonomy and is fundamentally not justiciable. As the Federal Court holds in BGE 146 I 145 E. 4.3, political design concerns are to be raised primarily through these democratic participation rights and not through legal remedies.
#5. Controversial Issues
No. 11 Scope of the cantonal right of initiative: The exact scope of the cantonal initiative is disputed. While Häfelin/Haller/Keller/Thurnherr (Federal Constitutional Law, 10th ed. 2020, No. 1685) advocate a broad interpretation that also includes general political concerns, a more restrictive view argues for limitation to federalist concerns (Rhinow/Schefer/Uebersax, Constitutional Law, 3rd ed. 2016, § 13 No. 34). Practice shows, however, that cantonal initiatives are thematically broad-ranging.
No. 12 Relationship to the Federal Council's right of initiative: Whether the Federal Council has a de facto right of initiative is controversially discussed, although it is not mentioned in para. 1. Prevailing doctrine affirms this with reference to Art. 181 FC (Federal Council's right of initiative), whereby Art. 160 para. 1 FC would not be exhaustive. A minority opinion sees in the non-mention a conscious decision by the constitutional legislator.
No. 13 Limits of the right of motion: It is disputed to what extent the right of motion is limited by the requirement of relevance to the subject matter. While Tschannen/Zimmerli/Müller (General Administrative Law, 4th ed. 2014, § 23 No. 18) argue for strict requirements regarding substantive connection, parliamentary practice takes a more generous approach, as long as a minimal thematic connection exists.
#6. Practice Notes
No. 14 For the exercise of the right of initiative, the statutory deadlines and formal requirements must be observed. Parliamentary initiatives require written form and justification (Art. 107 para. 2 ParlA). Cantonal initiatives must be decided by the competent cantonal body; mere submission by the cantonal government does not suffice.
No. 15 Motions in the council plenum can fundamentally be made orally, but for more complex amendment motions written form is recommended. The strategic timing of motion submission can be decisive: motions in detailed deliberation often have greater chances of success than those in the preliminary debate.
No. 16 The distinction between the various instruments (parliamentary initiative, motion, postulate) follows their different degrees of bindingness. While the parliamentary initiative aims directly at a draft enactment, motion and postulate instruct the Federal Council to prepare a draft. The choice of instrument should be guided by the intended goal and the political context.