The justice initiative proposes to appoint federal judges by lottery to ensure their independence. Considered “exotic” and “risky”, rejected by the political class, the text could attract voters in love with judicial reform.
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Launched by a citizen committee supported by Thurgau industrialist Adrian Gasser, the popular initiative “Appointment of federal judges by lottery” wants to turn the system around. Today, Parliament elects the judges of the Federal Court for a period of six years.
To access this function, candidates must be affiliated with a party. They are proposed to the Federal Assembly by the judicial commission that ensures the balance between the different political forces, languages and genders. The mandate can be renewed up to 68 years.
The separation of powers undermined by the system
For initiators, this system compromises the separation of powers. A candidate without a party, even if he is highly qualified, has no chance of becoming a Federal Court judge. You should be able to achieve this feature only because of your qualifications and not because of your political network.
The threat of non-reelection allows the parties to obtain the obedience of the judges beforehand and maintain their influence over justice, the initiators argued. Judges cannot make their decisions impartially.
>> The great debate of the Forum on the lottery of federal judges:
The Great Debate (Video) – Federal Judges: Independence Threatened? / Forum / 18 min. / November 2, 2021
The example of the judge of the UDC, Yves Donzallaz, gave grain to grind to the supporters of the text. His reelection, finally registered, was contested by the conservative party for having issued several verdicts contrary to his line. The judge notably ruled in favor of the data transfer of thousands of UBS clients to France in 2019.
Commission of experts to evaluate candidates
To reduce the collusion between politics and justice, the Federal Council would appoint a commission of experts, the initiative provides. According to the personnel needs of the Federal Court, and after a call for tenders, this commission would be in charge of evaluating the candidates before admitting them to the lottery in public.
Those who are not elected could run again. National languages will also be taken into account to preserve the cultural diversity of Switzerland.
Once appointed, judges can remain in office for up to five or six years after the normal retirement age of 70. The Federal Council and Parliament can only remove them in the event of non-compliance with the duties of the post or if they have permanently lost the capacity to exercise their functions.
A proven and transparent practice
Parliament swept the text, unanimously in the States and with a single vote in favor of the National. In both Houses, a minority of the left and the Liberal Greens tried unsuccessfully to propose a counterproject, pointing to the need for reform in the area.
But the current system has proven its worth, opponents said. It’s transparent. Election by Parliament gives democratic legitimacy to the Federal Court and the Constitution guarantees the independence of the judges.
As for the Parliament, it takes into account the electoral strength of the parties that are represented in a balanced and transparent way in the Federal Court. Additional criteria, such as sex, age or region of origin, are also maintained. The draw would not allow it.
In Switzerland, all authorities are appointed by the people or by Parliament, argued the Federal Councilor in charge of Justice Karin Keller-Sutter. Chance does not always choose the most competent people, but the lucky ones.
A text too evasive at certain points?
The text remains blurry at certain points. It says nothing about the means to ensure a balanced composition. The question of gender representation is conspicuously absent. According to the decisions taken for its implementation, Parliament would also continue to elect the judges of the Federal Administrative Court, the Federal Criminal Court and the Federal Patent Court.
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