Swiss Total and Partial Revision

Unity of form. A popular initiative must be either in general terms or in the form of a specific draft, and may not mix the two, because the two lead to different procedures: a general proposal, if accepted, is drafted by the Federal Assembly, whereas a specific draft goes to the vote as it stands.

Mandatory provisions of international law. Article 139(3) provides that where a popular initiative fails to comply with the requirements of unity of form or of subject matter, or infringes mandatory provisions of international law, the Federal Assembly shall declare it invalid in whole or in part.

That is the only substantive limit on Swiss constitutional amendment, and it is not enforced by a court. The Federal Assembly decides, and article 190 in any event forbids the Federal Supreme Court to set aside a federal act.

A worked example

A group wishes to amend the Constitution to introduce a new social benefit and, in the same proposal, to reduce a tax.

Unity of subject matter. The proposal joins two unrelated subjects and would be declared invalid in whole or in part by the Federal Assembly under article 139(3).

If the two were split. Each initiative would need a hundred thousand signatures within eighteen months under article 139(1), and each would go to a compulsory referendum under article 140(1)(a) requiring the double majority in article 142(2).

If instead the Assembly proposed the same changes. Article 194 applies and the unity requirements bind the Assembly's partial revision too, as to subject matter though not as to form.

The cases

There is no Swiss case in this book, and the reason is stated in [The Swiss Collegial Executive] and in FINDINGS: the Federal Supreme Court publishes only in German, French and Italian, so no Swiss judgment has been read in the original for this book and none is cited as authority. Every Swiss proposition here rests on the Federal Constitution in the Confederation's own English version.

Two decisions of other courts illuminate the Swiss position by contrast.

Facts. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, concerned the limits on the amending power in a constitution containing no express limit.

Held, by seven to six. Article 368 confers no power to alter the basic structure.

Why it matters here. Switzerland has nothing of the kind. Its only substantive limits are unity of subject matter, unity of form and the mandatory provisions of international law, and they are applied by the Federal Assembly and not by a court. A Swiss amendment that abolished a fundamental right would be valid if the people and the cantons approved it.

Facts. Coleman v. Miller, 307 U.S. 433 (1939), concerned who decides questions about the amending process.

Held. They are political questions, with the ultimate authority in Congress.

Why it matters here. Switzerland reaches the same place by a different route: article 139(3) gives the Federal Assembly the decision on validity, and article 190 keeps the Federal Supreme Court out.

Distinctions

What beginners get wrong

"A total revision means replacing the constitution with something unrecognisable." It means revising the whole document. The 1999 Constitution was a total revision that restated the existing order.

"Switzerland has a basic structure doctrine." It has three limits in articles 139 and 194 and they are applied by the Federal Assembly. There is no judicially enforced substantive limit.

"Unity of form and unity of subject matter are the same." Subject matter forbids joining unrelated proposals; form forbids mixing a general proposal with a specific draft in one initiative.

Limits and criticism

The only substantive filter is international law, so an initiative inconsistent with the Constitution's own values may be adopted, and several have been controversial for that reason.

The Federal Assembly is judge in a political matter, since it decides validity under article 139(3).

Total revision is rarely used, because partial revision is so accessible that there is little pressure for it.

Quick revision

1. Article 192: revision at any time, in whole or in part.
2. Article 193: total revision, proposed by the People, a Council or the Assembly; the People decide whether to revise; both Councils are re-elected; mandatory international law protected.
3. Article 194: partial revision, requested by the People or decreed by the Assembly; unity of subject matter; unity of form for an initiative; mandatory international law.
4. Article 195: entry into force on approval by the People and the Cantons.
5. Articles 138 and 139: a hundred thousand signatures within eighteen months.
6. Article 139(3): the Federal Assembly declares an initiative invalid in whole or in part for breach of the limits.
7. No judicially enforced substantive limit; article 190 keeps the Federal Supreme Court out.

Test yourself

1. Distinguish total from partial revision. A total revision revises the Constitution as a whole and is governed by article 193: it may be proposed by the People, by one of the two Councils, or decreed by the Federal Assembly; where the People initiate or the Councils disagree, the People first decide whether to carry it out; and if they vote in favour, both Councils are re-elected. A partial revision revises one or more particulars and is governed by article 194, requiring unity of subject matter and, for a popular initiative, unity of form.

2. What limits does the Swiss Constitution place on its own amendment? Three. Unity of subject matter, so that unrelated proposals may not be joined. Unity of form for a popular initiative, so that a general proposal and a specific draft may not be mixed. And the mandatory provisions of international law. Article 139(3) requires the Federal Assembly to declare an initiative invalid in whole or in part where it fails to comply.

3. Who applies those limits? The Federal Assembly, under article 139(3). No court does: article 190 provides that federal acts and international law are binding on the Federal Supreme Court and the other authorities applying the law, so there is no judicial review of a constitutional amendment approved by the People and the Cantons.

4. Compare the Swiss and Indian answers to the question whether anything is beyond amendment. India answers judicially and openly: Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, holds that article 368 confers no power to alter the basic structure, and the content of that structure has been developed case by case. Switzerland answers textually and narrowly: the only substantive limit is the mandatory provisions of international law, and it is applied by the Federal Assembly, so an amendment approved by the People and the Cantons cannot be set aside for inconsistency with the Constitution's other values.