A people’s initiative is calling for federal judges to be chosen by lot to ensure that they rule independently of politics. The proposal, due to be decided on November 28, stands little chance of passing, although criticism of the current Swiss system is justified.This content was published on October 21, 2021 - 09:00
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What is forbidden in some countries is part of the system in Switzerland. Judges are members of political parties and are elected by the parliament. A people’s initiative now wants to change this.
What is it all about?
Basically, it is about the independence of the Swiss judiciary, which is closely intertwined with politics. This holds true for all judges, but the initiative is aimed at the highest ones, the federal judges. In future, the initiative proposes that these should be nominated by an expert commission based on their qualifications and then selected by lot.
Moreover, federal judges should no longer need to be re-elected but remain in office until the age of 70. The parliament would only be able to dismiss them in the event of a serious breach of official duties or illness.
What problem needs solving?
At present, the Swiss parliament awards the posts of federal judge according to party strength. Judges with no political affiliation thus have no chance of gaining office.
When a judge is elected, she or he has to hand over money to the party – the so-called mandate tax, which is unique in the world, and constitutes an important source of funding for parties. In return, the judge can count on party support when it comes to re-election.
In this system, the judiciary is therefore politicised. Judges can be influenced by their party membership when passing verdicts, as studies have shown. And not just out of ideological considerations. Parties sometimes also exert tangible pressure. If they do not approve of a ruling, they can threaten not to re-elect the judge.
This mutual dependence calls into question the independence of the judiciary and the separation of powers. The initiative’s criticism of the Swiss system is therefore justified. The Council of Europe’s Group of States against Corruption (GRECO) has also rebuked Switzerland. Nonetheless, the proposal stands little chance of passing, as the idea of selecting judges drawn by lot goes too far for most.
Who is behind the initiative?
The initiative was put forward by a citizens’ committee centred around the colourful figure of entrepreneur Adrian Gasser, owner of the Lorze Group. One of the richest businessmen in Switzerland, he has had his own encounters with the Swiss justice system – and not always good ones, it seems. Gasser accuses the Swiss parliament of “nepotism” in the election of judges.
In an interview with swissinfo.ch, Adrian Gasser explains how the “justice initiative” would guarantee the independence of judges.
Main arguments for the initiative
The key issue for the backers of the initiative is depoliticising the judiciary. They argue that the current system does not guarantee the separation of powers. The judiciary has thus become an extension of the legislative branch.
In the proponents’ view, drawing lots would ensure the judiciary’s independence from political parties and enable selection of the best candidates. Professional aptitude, not party affiliation, would be the decisive factor. Diversity on the bench would also be enhanced, as women and men would have the same chances of gaining office, for example.
Abolishing the re-election of judges would also prevent the parliament from putting political pressure on the judiciary through the threat of deselection.
Main arguments against the initiative
The opponents of the initiative find the proposal too extreme. In the view of most parliamentarians, the existing system works well and the election of judges by the parliament gives the process democratic legitimacy. As one lawmaker put it in a nutshell: democracy is better than a lottery.
The opponents also believe that, when electing judges, the parliament can today take into account criteria such as age, gender and background, thereby guaranteeing a broad societal balance in the administration of justice.
According to Swiss Justice Minister Karin Keller-Sutter, introducing a lottery process would be completely alien to the system. A random draw would contradict Switzerland’s political tradition and would stand out as a foreign body in the legislation. “The luckiest candidates, rather than the most capable ones, would be chosen.”
Who is for and who against the initiative?
The government and parliament reject the popular initiative almost unanimously and without a counter-proposal. Most of the major parties also came out against it.