Would elections by lot make Lady Justice blinder?

14 June 2021. At the latest since his own party threatened to prevent the re-election of federal judge Ives Donzallaz, the independence of judges in Switzerland has been an issue. The federal judge, a member of the Swiss People’s Party, had made two rulings which were not to the liking of his party. On the one hand, he ruled that the free movement of persons had priority over the prevention of mass immigration; on the other hand, he approved the surrender of banking documents to the French state. Finally, the Swiss parliament re-elected him regardless, but there was an unpleasant aftertaste. Threats of dismissal and attempts of parties to influence justice are regarded as a red rag to the initiators of the Justice Initiative. According to one of its initiators, Adrian Gasser, such behaviour leads to a situation whereby a putative raison d’état prevails while the interests of those seeking justice have to take second place. In such an environment, rulings would not be for the benefit of those who seek justice; rather, political objectives of the political parties would be paramount.

A video clip of the committee describes how today, someone who wants to become a federal judge has to establish a personal network and join a political party. According to the committee of the initiative, this causes unwelcome consequences. “It is not tolerable that judges who make rulings that are not in keeping with the party line have to expect criticism or failure to be re-elected. Certain parties make such threats, however, and they don’t merely do so internally but quite openly through the media,” comments Karin Stadelmann of the initiative committee. The opponents of the initiative regard the fact that Yves Donzallaz managed to be re-elected with the support of the People’s Party as an argument for the good working order of the current system. Yet the case left behind doubts as to the independence of the judges of the Federal Supreme Courts. These doubts also find expression in the National Council. Thus the chairman of the Liberal parliamentary party, Beat Walti, tabled a parliamentary initiative aiming to prohibit mandate taxes and mandate dues. According to Walti, such payments by elected officials, not only by members of parliament but also by judges, to the political parties of which they are members create an impression of the judiciary’s dependence on political parties, which is incompatible with the constitutional principle of the independence of the third power. Walti, too, considers that this jeopardises the acceptance of jurisdiction and wants to reinforce judicial independence through a ban on mandate taxes and mandate dues. His parliamentary initiative was co-signed by the majority of the Liberal parliamentary party. The initiative has not been debated in parliament yet. It makes clear, however, that judges’ independence is not only viewed critically by the voting public but also by the national councillors. The parliamentary initiative is also supported by Adrian Gasser. The initiator of the Justice Initiative agrees with Walti but considers the reasons given for it to be wrong. “There is not only an impression of dependence. This dependence actually exists,” is Gasser’s point of view.

Drawing lots to ensure qualification?

The aim of having an independent judiciary is thus recognised. But the initiative does not merely want to ensure the independence of the judiciary. It is further concerned with the reinforcement of the qualification of judges, as co-initiator Karin Stadelmann emphasises: “For me, qualification for an office is paramount, particularly in the judiciary.” This should be safeguarded by an expert committee which reviews the qualification of all applicants in advance. According to Stadelmann, this would mean that “all those names are in the pot which are qualified for the job”. Thus drawing lots would favour one of those who are qualified, and party membership would no longer be important. In this way, Stadelmann also hopes that there will be fewer discussions about judges’ gender: “This procedure also solves the gender question! Regardless of whether it’s a qualified woman or a qualified man, both go into the pot, the decision is made by lot. This doesn’t leave an unpleasant aftertaste, no one has influenced the decision.” She is not the only one who regards drawing lots as an opportunity for a better representation of underrepresented groups in the judiciary. The social scientists Prof. Dr. Katja Rost, Malte Doehne and Margit Osterloh agreed with her in this respect. Drawing lots, they say, is less susceptible to manipulation. It also enables underrepresented groups to apply for positions and to save face in the case of failure, the social scientists write in an article. In this way, the influence exerted on elections would be curbed in favour of capability.

The Federal Supreme Court does not see any need for action

In its message concerning the initiative, the Federal Council writes that the independence of the judiciary was a special concern and acknowledges the initiators’ concerns. In the Federal Council’s view, however, election by lot is the wrong way. The initiative would create new problems in that the lot rather than the qualification would be decisive. Additionally, the initiative would weaken the political parties’ position and the acceptance of judges’ rulings. The Federal Council therefore recommended that the initiative be rejected without a direct or indirect counterproposal. In a letter to Karin Keller-Sutter, Head of the Federal Department of Justice and Police, the Federal Supreme Court seconded the Federal Council’s statement about the Justice Initiative. In reply to a query, the Court answered that it largely shared the Federal Council’s reservations and rejected the initiative. In parliament, the possibility of a counterproposal is currently still a debating point. The Legal Affairs Committee of the National Council has already announced its opposition to it. It regards the current system as reliable. In the Council of States, the Justice Initiative is expected to be debated on 10 June 2021, during the summer session.

Laura Rufer is a student of the Master’s programme in Law. This article was produced in connection with a workshop of the supplementary programme in Business Journalism headed by Stefanie Knoll, SRF, and is part of the series on “Money or Happiness”.

Image: Adobe Stock / mehaniq41