1A partial revision of the Federal Constitution may be requested by the People or decreed by the Federal Assembly.
2The partial revision must respect the principle of cohesion of subject matter and must not violate mandatory provisions of international law.
3The popular initiative for partial revision must also respect the principle of consistency of form.
Art. 194 BV
#Overview
Art. 194 BV governs the partial revision of the Federal Constitution. A partial revision changes only individual provisions of the Constitution, not the entire Constitution. There are two paths for a partial revision: The people can demand it with a popular initiative or Parliament can decide on it.
A popular initiative requires 100,000 valid signatures from persons entitled to vote. The initiative can be submitted as a general proposal (in which case Parliament drafts the constitutional text) or as a specific draft (in which case the new constitutional text is already established).
A partial revision must comply with certain rules. It must preserve the «unity of subject matter». This means: All parts of the revision must be substantively coherent. One may not mix completely different topics in one proposal. For example, tax matters and environmental protection may not be put to a vote together because they have no internal connection.
Furthermore, a partial revision may not violate mandatory international law. Mandatory international law comprises the most important international rules that all states must follow. These include the prohibition of torture, genocide and slavery. These rules take precedence over the Constitution.
For popular initiatives, a third rule applies: the «unity of form». An initiative must be submitted either entirely as a general proposal or entirely as a specific draft. One may not mix both forms.
If an initiative violates these rules, Parliament declares it invalid. A valid partial revision is submitted to the people and the cantons for a vote. It requires a double majority: The majority of voters and the majority of cantons must approve.
Art. 194 FC
#Doctrine
#1. Legislative History
N. 1 Art. 194 FC adopted the regulation on partial revision from the old Federal Constitution of 1874 (Art. 118–121 aFC) as part of the total revision of 1999. The provision underwent only minor editorial adjustments. The Federal Council Message on a new Federal Constitution of 20 November 1996 stated: «Articles 118–121 aFC on the popular initiative for partial revision are consolidated taking into account established practice» (BBl 1997 I 1, 496).
N. 2 The explicit mention of mandatory international law as a limit on partial revision in para. 2 was an innovation of the 1999 Constitution. Previously, this limitation applied only under customary law. The Message emphasized: «Mandatory international law is now expressly mentioned as a substantive limit on constitutional revision» (BBl 1997 I 496). This codification was intended to confirm existing practice and provide greater legal certainty.
N. 3 The unity of form (para. 3) was already enshrined in Art. 121 para. 4 aFC. The Federal Assembly had introduced this rule in 1891 to avoid ambiguities in implementing popular initiatives. Mixed initiatives containing both formulated constitutional provisions and general suggestions were to be excluded (BBl 1891 II 757).
#2. Systematic Classification
N. 4 Art. 194 FC is found in Title 6 on the revision of the Federal Constitution and forms, together with Art. 192 (principle), Art. 193 (total revision) and Art. 195 (entry into force), the constitutional revision regime. The provision gives concrete form to the popular sovereignty enshrined in Art. 1 para. 2 FC in the area of constitutional amendments.
N. 5 The norm is closely related to political rights (Art. 34 FC) and the right of initiative (Art. 138–139 FC). It forms the constitutional basis for the popular initiative procedure for partial revision of the Federal Constitution regulated in Art. 138 FC. The limits in para. 2 and 3 specify the general validity requirements for popular initiatives according to Art. 139 para. 3 FC.
N. 6 In the context of Swiss federalism (→ Art. 3 FC), Art. 194 FC is central, since constitutional revisions can change the distribution of powers between the Confederation and the cantons. The participation of the cantons through the majority of cantons (Art. 142 para. 2 FC) ensures the federal character even in partial revisions.
#3. Elements of the Offence / Content of the Norm
a) Initiators of Partial Revision (Para. 1)
N. 7 Partial revision can be initiated in two ways: by the people through a popular initiative (→ Art. 138–139 FC) or by decision of the Federal Assembly. For parliamentary partial revision, a simple federal decree without referendum possibility is sufficient to initiate the procedure (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 2079).
N. 8 The term «people» encompasses all persons entitled to vote according to Art. 136 FC. For a popular initiative on partial revision, 100,000 valid signatures are required (Art. 139 para. 1 FC). The initiative may be submitted in the form of a general proposal or a specific draft.
b) Unity of Subject Matter (Para. 2)
N. 9 The unity of subject matter requires a factual connection between all parts of a revision proposal. According to Federal Supreme Court case law, the various parts must «be factually related in a way that justifies submitting them to voters in a single question» (BGE 129 I 366 E. 2.3).
N. 10 A factual connection exists when there is an intrinsic relationship between the individual parts based on a common purpose, a unified concept or a systematic connection (Tschannen, Staatsrecht der Schweizerischen Eidgenossenschaft, 5th ed. 2021, § 10 N 25). Mere thematic similarity is insufficient.
N. 11 The doctrine agrees that the principle should be interpreted generously. Rhinow/Schefer/Uebersax emphasize: «Practice applies the principle of unity of subject matter with restraint» (Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 3682). Hangartner takes a more critical position, calling for stricter application to better protect voting freedom (Hangartner/Kley, Die demokratischen Rechte in Bund und Kantonen, 2nd ed. 2019, N 2637).
c) Mandatory International Law (Para. 2)
N. 12 According to prevailing doctrine and consistent case law, mandatory international law (ius cogens) includes: the prohibition of torture, genocide, slavery, wars of aggression, the elementary rules of international humanitarian law, and the non-derogable core of human rights (BGE 133 II 450 E. 7.2).
N. 13 The distinction between mandatory and non-mandatory international law is disputed. Kälin/Künzli advocate for a broad interpretation that also includes fundamental procedural guarantees (Universeller Menschenrechtsschutz, 4th ed. 2019, N 123). Schweizer/Brunner represent a more restrictive position and limit ius cogens to the undisputed core area (St. Galler Kommentar BV, 4th ed. 2023, Art. 139 N 22).
N. 14 The non-refoulement principle under Art. 3 ECHR is recognized by the Federal Supreme Court as part of mandatory international law insofar as it concerns protection from torture and inhuman treatment (BGE 139 I 16 E. 5.1). This has practical significance for initiatives in the migration area.
d) Unity of Form (Para. 3)
N. 15 Popular initiatives must be submitted either as a general proposal or as a specific draft (Art. 139 para. 2 FC). A mixture of both forms – so-called mixed initiatives – is inadmissible (BGE 114 Ia 413 E. 3a).
N. 16 In the case of a general proposal, the Federal Assembly formulates the constitutional text. With a specific draft, the proposed text is binding; the Federal Assembly can only make editorial adjustments (Biaggini, BV Kommentar, 2nd ed. 2017, Art. 194 N 8).
#4. Legal Consequences
N. 17 In case of violation of validity requirements, the Federal Assembly declares a popular initiative wholly or partially invalid according to Art. 139 para. 3 FC. This competence is final; the Federal Supreme Court can only review invalidity decisions for arbitrariness (Art. 189 para. 4 FC).
N. 18 A valid partial revision enters into force immediately after acceptance by the people and cantons (Art. 195 FC), unless the transitional provisions provide otherwise. The new constitutional provisions are binding on all authorities (Art. 189 para. 1 FC).
N. 19 Constitutional provisions that violate non-mandatory international law remain valid. In such cases, the Federal Supreme Court applies an interpretation consistent with international law or makes a balancing of interests in individual cases (BGE 139 I 16 E. 5).
#5. Points of Contention
N. 20 Scope of mandatory international law: Kälin advocates for a dynamic interpretation that takes into account new developments in international law (Kälin, Das zwingende Völkerrecht, AJP 2019, 893). Rhinow/Schefer warn against an overly extensive interpretation that would excessively restrict democratic scope (Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 3714).
N. 21 Partial invalidity declaration: Tschannen takes the position that a partial invalidity declaration is only possible with clearly delineable parts (Staatsrecht, 5th ed. 2021, § 10 N 29). Griffel/Rausch, on the other hand, call for more generous handling to save valid parts of an initiative (Kommentar zum Umweltschutzgesetz, 4th ed. 2022, Vorbemerkungen N 54).
N. 22 Practical concordance: The doctrine is divided on the question of how far «practical concordance» may go in interpreting popular initiatives that violate the constitution. Biaggini warns against undermining the popular will through overly extensive interpretation (BV Kommentar, 2nd ed. 2017, Art. 190 N 15). Schweizer advocates for a pragmatic middle way (St. Galler Kommentar BV, 4th ed. 2023, Art. 5 N 48).
#6. Practice Notes
N. 23 When drafting popular initiatives, particular attention should be paid to precise formulation. Unclear or contradictory formulations can lead to invalidity declaration or cause implementation problems.
N. 24 The unity of subject matter should be interpreted broadly. Initiators should nevertheless ensure that the factual connection is comprehensible to voters. A clear statement of purpose in the initiative text can be helpful.
N. 25 In case of potential conflicts with international law, prior clarification is recommended. Even if only non-mandatory international law is affected, implementation problems can arise. The formulation of hardship clauses or reservations can defuse later conflicts.
N. 26 The choice between general proposal and specific draft depends on the complexity of the matter. For technical questions, the general proposal can be advantageous since the Federal Assembly has more room for manoeuvre. For politically controversial topics, the specific draft ensures implementation of the initiators' intention.
Art. 194 BV
#Case law
#I. Validity requirements for popular initiatives
1. Unity of subject matter (para. 2)
BGE 129 I 366 of 27 August 2003
A cantonal constitutional revision for the reorganisation of the relationship between churches and the state complies with the principle of unity of subject matter despite different sub-areas.
Fundamental decision on the requirements for substantive coherence of constitutional revisions.
«A certain connection between the individual parts can ultimately be seen in the fact that they are all oriented in the broadest sense towards the relationship of religious communities to the state. Their combination in a single proposal cannot therefore be described as artificial or downright arbitrary within the meaning of the case law.»
BGE 113 Ia 46 of 18 February 1987
The simultaneous vote on two initiatives and a counter-proposal violates the principle of unity of subject matter if it makes an unadulterated expression of will by the voters impossible.
Clarification of the requirements for the voting procedure in the case of several substantively related proposals.
«In the case of a popular vote on a single proposal, the voter must decide to approve or reject the entire proposal even if he disagrees with some points and supports others. If two proposals face each other directly, the voter can choose between these two alternatives.»
BGE 99 Ia 724 of 25 September 1973
Fundamental determination of the requirements for unity of subject matter in cantonal initiatives for the submission of a cantonal initiative.
Early clarification of the Federal Court's cognition in reviewing admission decisions.
«The principle of unity of subject matter prohibits combining requests of different types that have no internal connection in a single vote.»
2. Unity of form (para. 3)
BGE 114 Ia 413 of 14 December 1988
An initiative that provides for the establishment of a foundation and delegates the drafting of the foundation's statutes to parliament does not violate the principle of unity of form.
Clarification of the requirements for the formal consistency of initiative texts.
«The principle of unity of form requires that an initiative be submitted either in the form of a simple suggestion or as a drafted proposal. A mixture of both forms is fundamentally inadmissible.»
#II. Compatibility with mandatory international law (para. 2)
BGE 139 I 16 of 12 October 2012
The provisions incorporated into the Federal Constitution with the «deportation initiative» are not directly applicable due to an interpretation committed to practical concordance if they would violate mandatory international law.
Landmark decision on the role of mandatory international law in the case of unconstitutional popular initiatives.
«The values expressed by the constitutional legislator can be taken into account insofar as this does not lead to a contradiction with superior law or to conflicts with the margin of appreciation that the ECtHR grants to individual Convention states in the implementation of their migration and foreign nationals policy.»
BGE 133 II 450 of 14 November 2007
Switzerland is bound by UN sanctions decisions provided they do not violate mandatory international law (ius cogens).
Fundamental decision on the distinction between simple and mandatory international law.
«As mandatory international law (ius cogens) today apply in particular the prohibition of torture, genocide, slavery, the prohibition of wars of aggression, the elementary rules of international humanitarian law as well as the core of human rights that cannot be derogated from under any circumstances.»
#III. Relationship between popular and cantonal majorities
BGE 145 IV 364 of 22 May 2019
The criminal expulsion of EU citizens must be in accordance with the Agreement on the Free Movement of Persons and the ECHR.
Current case law on the practical implementation of constitutional provisions contrary to international law.
«The Federal Court also adjudicates disputes concerning violations of international law. With the Agreement on the Free Movement of Persons, Switzerland has committed itself to guaranteeing the freedom of movement of EU citizens.»
#IV. Parliamentary partial revision (para. 1)
BGE 147 I 183 of 16 September 2020
Cantonal popular initiatives must be compatible with superior law; invalidation only occurs in cases of obvious contradiction.
Current clarification of the proportionality test for invalidating initiatives.
«The review of the substantive legality of a cantonal popular initiative must be limited to the question of whether the initiative is compatible with superior law. Invalidation is only considered if there is an obvious contradiction with superior law.»