Art. 193 FC — Total Revision

#Doctrine

#1. Legislative History

N. 1 Art. 193 FC traces back to Art. 118 of the former Federal Constitution of 1874, which regulated the procedure for total revision in a comparable manner. The current version was carried over without substantive amendment in the course of the consolidation of the Federal Constitution of 1999. In its Dispatch of 20 November 1996, the Federal Council expressly described the provision as a purely consolidatory («Bereinigung») restatement of existing constitutional law; no substantive innovations were intended (BBl 1997 I 360 f.).

N. 2 The only significant normative addition compared to the old law is Art. 193 para. 4 FC, which expressly enshrines the peremptory norms of international law (ius cogens) as a substantive limitation on total revision. According to the Dispatch 1996, this corresponds to the prevailing practice already existing at that time and reflects the «current state of the law»; the provision is «not to be understood as exhaustive, but allows for further developments in this area» (BBl 1997 I 432 f., 447 f.). The Federal Assembly adopted the Federal Council's proposal without debate; no substantive discussion of para. 4 took place in plenary session (cf. VPB 1/2012 p. 59 f. [Report of the Federal Office of Justice of 28 December 2006]).

N. 3 The historical antecedents go back to the total revision of 1874. Before that, a first total revision of the Federal Constitution of 1848 had taken place (cf. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1859). The procedure for total revision has never been applied in practice since the entry into force of the FC 1999; even under the FC 1874 only the revisions of 1874 and 1999 occurred.

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#2. Systematic Classification

N. 4 Art. 193 FC is situated in Title 5 of the Federal Constitution («Revision of the Federal Constitution and Transitional Provisions»), alongside Art. 192 FC (principle of revisability), Art. 194 FC (partial revision), and Art. 195 FC (entry into force). The provision is a procedural norm (→ Art. 192 FC) without directly enforceable subjective-law content. It is not justiciable in the sense that individuals cannot derive any judicially enforceable claims from it.

N. 5 The provision falls within the category of organisational and competence norms (→ on the typological distinction: Häfelin/Haller/Keller/Thurnherr, op. cit., N 79 ff.). Art. 193 FC exhaustively regulates the procedure for total revision at the federal level; subsidiary application of the general legislative procedures (↔ Art. 164 ff. FC) is excluded to the extent that Art. 193 FC contains specific rules.

N. 6 The relationship with Art. 194 FC (partial revision) is central: Art. 193 FC governs total revision, Art. 194 FC partial revision. Both articles share the substantive limitation of ius cogens (Art. 193 para. 4 FC; Art. 194 para. 2 FC), whereas Art. 194 FC additionally recognises unity of subject matter as a formal limitation. A popular initiative for total revision is always in the form of a general proposal (cf. Lombardi, in: Ehrenzeller/Schindler/Schweizer/Vallender [eds.], St. Galler Kommentar zur BV, 4th ed. 2023 [SGK], Introductory remarks to Art. 192–195 N. 4). ↔ Art. 194 FC; → Art. 192 FC; → Art. 139 FC.

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#3. Elements of the Provision / Normative Content

3.1 Concept of Total Revision (Para. 1)

N. 7 Constitutional law does not expressly define the concept of total revision. The prevailing scholarly opinion understands it as a complete renewal of the constitutional document as such, not merely the amendment of individual provisions; it suffices that the intention to reconstitute the constitutional order as a whole finds expression (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 3282 f.; Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 5). Substantive completeness is not a necessary precondition: a new constitutional document that does not regulate certain matters may nonetheless constitute a total revision.

N. 8 The distinction from partial revision (→ Art. 194 FC) is difficult in individual cases. According to Lombardi (SGK, Introductory remarks to Art. 192–195 N. 3), the decisive criterion is the intention to re-establish the constitutional order; a partial revision that de facto replaces the entire constitution nevertheless remains a partial revision in the formal sense. The practice of the Federal Assembly recognises the so-called «package revision» within the procedure for total revision, which under today's prevailing scholarly opinion and practice is in principle permissible (cf. JAAC 58.1, decision of 18 December 1992; confirmed in VPB 1/2012 p. 57).

3.2 Right of Initiative (Para. 1)

N. 9 Para. 1 provides for three ways of initiating total revision:

1. Popular initiative: 100,000 persons entitled to vote may, pursuant to Art. 138 FC, submit an initiative for total revision (→ Art. 138 FC). A popular initiative for total revision must always be in the form of a general proposal; a fully elaborated draft is not possible, because para. 3 provides for the re-election of both Chambers, which are to draft the new constitution (Rhinow/Schefer/Uebersax, op. cit., N 3287).

2. Initiative of a Chamber: Either Chamber — the National Council or the Council of States — may propose total revision. Pursuant to Art. 120 para. 1 of the Federal Act on the Federal Assembly (Parliamentary Act, ParlA; SR 171.10), a decision of the respective Chamber suffices; a qualified majority is not required.

3. Decision of the Federal Assembly: The Federal Assembly may initiate total revision by means of a federal decree, provided both Chambers are in agreement (Art. 120 para. 2 ParlA).

N. 10 In the case of a popular initiative for total revision of the Federal Constitution, the same conditions of validity apply as for popular initiatives for partial revision, in particular compliance with the peremptory norms of international law and feasibility; the Federal Assembly is competent to examine validity (VPB 1/2012 p. 57 f. [Report of the Federal Office of Justice of 28 December 2006]).

3.3 Popular Vote on Whether to Proceed (Para. 2)

N. 11 If the initiative comes from the People or if the two Chambers are in disagreement, the People decide in a popular vote whether a total revision is to be carried out. The subject of the vote is not the content of the future constitution, but solely the question of whether the revision procedure is to be initiated (Häfelin/Haller/Keller/Thurnherr, op. cit., N 1861). The right to vote is governed by the general provisions (→ Art. 136 FC).

N. 12 Para. 2 requires agreement of both Chambers in order to avoid a popular vote. If the Chambers are in agreement, the Federal Assembly decides on total revision directly by means of a federal decree without a prior popular vote (Lombardi, SGK, Art. 193 N. 7). Popular rights are in any case preserved through para. 3: even the Federal Assembly's decree requires a final popular vote pursuant to para. 3, since the People and the Cantons must approve the new constitution (→ Art. 195 FC).

3.4 Re-election of the Chambers (Para. 3)

N. 13 If the People approve total revision — whether after a popular vote pursuant to para. 2 or by approving the Federal Assembly's decree — both Chambers are newly elected. The re-election serves to ensure that the new constitution is drafted by a parliament freshly endowed with democratic legitimacy. The newly elected parliament is not bound by instructions of the former parliament and has full freedom of design in drafting the new constitutional text (Rhinow/Schefer/Uebersax, op. cit., N 3289).

N. 14 The modalities of the re-election are governed by the general rules on the election of the National Council and the Council of States (→ Art. 143 ff. FC; Federal Act on Political Rights, SR 161.1). The newly elected Chambers decide on the new constitution; this requires approval by the People and the Cantons (Art. 195 FC). The FC does not prescribe a time limit for the drafting of the new constitutional text.

3.5 Limitation by Peremptory Norms of International Law (Para. 4)

N. 15 Art. 193 para. 4 FC prohibits the violation of the peremptory norms of international law (ius cogens). This limitation is absolute and cannot be overridden by the will of the People; even the People and the Cantons cannot derogate from ius cogens (BBl 1997 I 432 f.; Lombardi, SGK, Art. 193 N. 13). The prohibition is addressed both to the Federal Assembly when initiating the revision procedure and to the newly elected parliament when drafting the new constitutional text.

N. 16 According to the case law of the Federal Supreme Court, ius cogens comprises «those norms of international law from which no derogation is permitted even by mutual agreement; conflicting international treaties are therefore void (cf. Art. 53, 64 and 71 VCLT)» (BGE 133 II 450 E. 7.1). The core comprises the prohibition of aggression and genocide, the prohibition of torture, slavery and trafficking in persons, the prohibition of collective punishment, the principle of individual criminal responsibility, and the principle of non-refoulement (BGE 133 II 450 E. 7.3; BBl 1997 I 362, 433, 446). The Dispatch 1996 expressly states that the peremptory norms of international law «cannot be described in abstract terms»; it is «the task of practice [...] to develop case law in this area with the involvement of legal scholarship» (BBl 1997 I 446 f.).

N. 17 The limitation in para. 4 is a substantive limitation on constitutional revision. It differs from the formal limitations on partial revision (unity of form, unity of subject matter pursuant to Art. 194 para. 3 FC), which do not apply to total revision. Since an initiative for total revision must always be in the form of a general proposal, the newly elected parliament can draft the constitutional text in conformity with ius cogens; the practical relevance of the limitation in para. 4 at the initiative stage is therefore limited (BBl 1997 I 432; VPB 1/2012 p. 57 f. [Report of the Federal Office of Justice of 28 December 2006]).

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#4. Legal Consequences

N. 18 A popular initiative for total revision that violates ius cogens or is manifestly factually unfeasible must be declared invalid by the Federal Assembly (Art. 139 para. 3 FC by analogy; VPB 1/2012 p. 57). In practice this is hardly relevant, because a general proposal for total revision rarely has sufficiently specific content to allow a ius cogens violation to be established already at the initiative stage.

N. 19 If the popular vote pursuant to para. 2 results in a No, the existing Federal Constitution remains in force unchanged. The revision procedure is concluded; a new initiative for total revision is permissible (no blocking period is provided for in the FC).

N. 20 If the People approve total revision, the legal obligation to re-elect both Chambers arises (para. 3). This legal consequence is mandatory and cannot be set aside by a parliamentary decision; it follows directly from the Constitution. The newly elected parliament has the duty to draft a proposal for the new Federal Constitution; no time frame is prescribed. The new constitution requires approval by the People and the Cantons with a double majority (→ Art. 195 FC).

N. 21 If the Federal Assembly (whether the former or the newly elected parliament) violates the limitation in para. 4, the relevant constitutional text is tainted by the violation of international law. There is no settled doctrine on the domestic legal consequences of such a violation — in particular the question of the duty of application pursuant to → Art. 190 FC — as this has not yet arisen in practice.

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#5. Contested Issues

5.1 Scope of the Substantive Limitation (Para. 4): Ius Cogens or Broader International Law?

N. 22 The most significant contested issue concerns the question of whether «peremptory norms of international law» in para. 4 refers exclusively to ius cogens recognised by the international community (Art. 53 of the Vienna Convention on the Law of Treaties, VCLT) or whether the concept has a broader scope of application.

N. 23 The Federal Council and the prevailing practice favour a narrow interpretation: only ius cogens within the meaning of Art. 53 VCLT constitutes a substantive limitation on constitutional revision; non-peremptory international law — even if de facto non-denounceable — does not suffice (BBl 1997 I 432, 446 f.; BBl 2004 3292 f. [Dispatch on the Popular Initiative «Animal Protection – Yes!»]; BBl 2006 8962 [Dispatch on the Popular Initiative «for democratic naturalisations»]; VPB 1/2012 p. 60 ff.). This line is also shared by Lombardi (SGK, Art. 193 N. 13 f.) and Tschannen (Staatsrecht der Schweizerischen Eidgenossenschaft, 4th ed. 2016, § 44 N. 25) as well as by Baumann (Der Einfluss des Völkerrechts auf die Gewaltenteilung, 2002, p. 280, N. 364; p. 290 f., N. 375): Baumann argues that outside the core of international law there is nothing that would be «sufficiently legitimised to restrict the freedom of the People and the Cantons to decide on constitutional amendments» (Baumann, op. cit., p. 290, N. 375).

N. 24 A broad interpretation is advocated by Hangartner and Wildhaber in particular: they argue for the inclusion of «de facto peremptory provisions of international law», i.e. international treaty provisions of considerable significance that are legally or de facto non-denounceable (Hangartner, in: SGK, 2nd ed. 2002, Art. 139 N. 29; Wildhaber, Neues zur Gültigkeit von Initiativen, in: De la constitution: études en l'honneur de Jean-François Aubert, 1996, pp. 293 ff., 299). The argument: since Switzerland, where de facto non-denounceability applies — as with ius cogens — has no possibility of extricating itself from the obligation, equal treatment is warranted. The Federal Council has expressly rejected this view in several Dispatches (BBl 2004 3292 f.; BBl 2006 8962; cf. VPB 1/2012 p. 60).

N. 25 Biaggini understands the expression «peremptory norms of international law» as an autonomous Swiss legal concept that may go beyond internationally recognised ius cogens (Biaggini, Das Verhältnis der Schweiz zur internationalen Gemeinschaft, AJP/PJA 6/1999, pp. 722 ff., 728); Rhinow also does not exclude further unwritten substantive limitations (Rhinow, Grundzüge des Schweizerischen Verfassungsrecht, 2003, p. 564, N. 3191). Both positions have had no practical impact, since the federal authorities adhere to the narrow interpretation.

N. 26 The Federal Supreme Court has not yet directly addressed Art. 193 para. 4 FC. The leading decision BGE 133 II 450 E. 7.1 ff. (Nada) defines the concept of ius cogens for Swiss law; while it does not directly concern Art. 193 FC, it is authoritative for the interpretation of para. 4.

5.2 Further Substantive Limitations on Total Revision?

N. 27 Isolated scholarly voices raise the question of whether, alongside ius cogens, further substantive limitations on total revision exist — for example in the form of inviolable constitutional principles (democracy, federalism, rule of law). The Federal Council has rejected this, arguing that there is no hierarchy of norms within the constitution and that objective criteria for the selection of inviolable provisions are lacking (VPB 1/2012 p. 71). The prevailing scholarly opinion concurs; a minority view remains without a secure basis in positive law (cf. Lombardi, SGK, Introductory remarks to Art. 192–195 N. 5; Tschannen, op. cit., § 44 N. 28).

5.3 Applicability of Electoral Rights Protection to the Total Revision Procedure

N. 28 It is disputed whether the general conditions of validity for popular initiatives (unity of form, unity of subject matter pursuant to Art. 194 para. 3 FC) apply by analogy to initiatives for total revision. The Federal Office of Justice held in its report of 28 December 2006 that the validity criteria of feasibility and compliance with ius cogens are applicable to initiatives for total revision; the criterion of unity of subject matter, however, expressly applies only to partial revision (VPB 1/2012 p. 57; Lombardi, SGK, Introductory remarks to Art. 192–195 N. 9).

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#6. Practical Notes

N. 29 Historical rarity: The procedure under Art. 193 FC has never been initiated since the entry into force of the FC 1999. Even under the FC 1874 only one total revision took place (1999). The practical relevance of the provision is therefore limited; it is to be understood primarily as an «emergency reserve» of the democratic system, enabling a complete reorganisation of the body politic within the constitutional framework.

N. 30 Validity review of a popular initiative for total revision: When 100,000 signatures for an initiative for total revision are submitted (→ Art. 138 FC), the Federal Chancellery first examines the formal requirements (signature quorum, unity of form, etc.). The Federal Assembly then decides on validity. The sole standard is compliance with the peremptory norms of international law and feasibility; the criterion of unity of subject matter does not apply (VPB 1/2012 p. 57 f.).

N. 31 Relationship with Art. 190 FC: If a new Federal Constitution adopted through the procedure under Art. 193 FC were to contain a conflict with international treaties, Art. 190 FC must be observed: federal acts and international law are binding on the Federal Supreme Court and other authorities applying the law. In the event of a conflict, the authorities must apply international law; this applies in principle also to a new constitutional text, unless it expressly derogates from international obligations (→ Art. 190 FC; BGE 133 II 450 E. 6.1).

N. 32 Parliamentary procedure: If one Chamber proposes total revision (para. 1, 2nd variant) without the agreement of the other Chamber, or if the initiative comes from the People, a popular vote on whether to proceed is mandatory (para. 2). Only the question of principle is to be put to the vote; the content of the future constitution is not the subject of this vote. The popular vote is procedurally governed by the general provisions (→ Art. 136 FC; Federal Act on Political Rights, SR 161.1, Art. 75 ff.).

N. 33 Re-election: In the event of the People's approval of total revision (para. 3), both Chambers must be fully re-elected. This has practical implications for ongoing parliamentary business and the remaining term of office of members. The term of office of the newly elected Chambers begins with their election and is determined in accordance with the ordinary system of terms of office (→ Art. 145 FC). There is no time limit for the drafting of the new constitutional text by the newly elected Chambers; the result must be approved in a final popular vote — with a double majority of the People and the Cantons — (→ Art. 195 FC).

#Caselaw

Art. 193 Cst., as a purely procedural norm for the complete revision of the Federal Constitution, has rarely been directly addressed in Federal Supreme Court jurisprudence. The few available decisions primarily concern the validity requirements for popular initiatives and the limitation of mandatory provisions of international law.

#Validity Requirements for Popular Initiatives on Complete Revision

Report of the Federal Council of 1 May 2012 on the validity of popular initiatives 5 May 2012 The Federal Assembly held that popular initiatives for complete revision of the Federal Constitution must meet the same validity criteria as initiatives for partial revision. This principle is relevant to the practice of Art. 193 Cst., as a complete revision proposed by the people must also comply with material limitations.

«Popular initiatives for complete revision of the Federal Constitution must also meet these validity criteria. The requirements for the validity of popular initiatives examined in this report, namely feasibility and compliance with mandatory provisions of international law, thus apply to both partial and complete revisions.»

#Mandatory Provisions of International Law as Limitation

BGE 133 II 450 (Nada decision) 14 November 2007 The Federal Supreme Court clarified the concept of mandatory provisions of international law (ius cogens) as an absolute limit to state action. This definition is decisive for assessing the limitation according to Art. 193 para. 4 Cst.

«However, the limit to the obligation to apply Security Council resolutions is ius cogens as mandatory law binding on all subjects of international law. Ius cogens or mandatory international law refers to those norms of international law from which no deviation is permitted even by mutual consent.»

#Unity of Subject Matter in Constitutional Revisions

BGE 129 I 366 27 August 2003 The Federal Supreme Court confirmed that the principle of unity of subject matter also applies to constitutional revisions, but distinguished between partial and complete revisions. The decision shows the relevance of the principle for revision procedures, whereby a more broadly conceived connection suffices for complete revisions.

«The initiative, which particularly aims to transfer provisions from various laws into the constitution, cannot be qualified as an initiative for complete revision of the cantonal constitution, even if it makes this claim. The principle of unity of subject matter, however, generally applies under federal law as well.»

#Parliamentary Procedure and Allocation of Powers

The parliamentary deliberations of the 1980s and 1990s found show that the procedural provisions of Art. 193 Cst. have never been applied in practice. The last serious discussion about a complete revision took place in the context of the constitutional reform of 1999, which was however carried out as a partial revision.

#Conclusion on Caselaw

The small number of relevant decisions reflects the extraordinary rarity of complete revision procedures. Art. 193 Cst. represents a theoretical procedural instrument whose practical significance is minimal. However, the most important legal limitations — feasibility and mandatory provisions of international law — have been clarified through general jurisprudence on popular initiatives.