Independent Selection of Judges via Competence Evaluation and Lot

Last Sunday, 28th November 2021, voters in Switzerland rejected the proposals of the „Justiz-Initiative“ (“Judge initiative”) with the overall majority of 68,07% (temporary official results of the Federal Council, in German). Nevertheless, the proposal contains interesting aspects concerning questions around the election processes and independence of judges. Despite the rejection in Switzerland – it could serve as an impulse for further discussions not only in Switzerland, but within Europe, where the independence of the judiciary has been partly endangered.

In many European countries, the question is discussed, how judges can be selected according to objective criteria without political influence. The solution, which the initiative proposed, has developed a fascinating approach to reduce the latter. Most probably, this issue on judicial independence will also be discussed in Germany as the new coalition agreement (in German, p. 106) of the SPD, Green Party and FDP foresees a reform of the election and promotion procedures for federal judges. Therefore, discussing the Swiss proposal and the selection of independent, competent judges remains important.

The initiative envisaged a reform of the election of judges at the Federal Supreme Court in art. 168 para 1 of the Federal Constitution of the Swiss Confederation (BV). Under the current system, the Parliament elects federal judges on the basis of nominations by the parliamentary commission (art. 40a of the Federal Act on the Federal Assembly, ParlA) for a period of six years, art. 145 second sentence of the BV. Re-election after six years is normal and expected. The Parliament seeks to maintain appropriate representation for the political parties in proportion to their support among the electorate. Political parties in Switzerland are involved in the nomination procedure to ensure such representation: The notice on each vacancy shows which party is entitled to nominate a judge for the next available seat at the Federal Supreme Court. In practice, this means that only members of a political party can candidate. This practice is reflected by the fact that no non-party member has been elected as a judge to the Federal Supreme Court since 1943. Moreover, judges are expected to donate money to their party after the election. This so called “mandate taxes” can amount to up to CHF 20.000 every year. Therefore, European Organisations have raised concerns regarding the independence of Swiss judges (see also the evaluation report by the GRECO).

The initiative has suggested four central changes of the BV. Instead of re-election, judges should hold their office until up to five years after they reach the statutory retirement age. A dismissal before that time should only be possible in case of serious violations of a judge’s official duties or if a judge was permanently unfit for office.

The election process was proposed to take place in two steps: First, all candidates should be free to apply to open positions. Among those candidates, federal judges should be nominated by an independent committee of experts on the basis of their professional and personal qualifications. Second, a draw should decide which of the suitable candidates would eventually be elected for the available judicial office. The initiative had hoped to foster judicial independence and thus to increase the trust of Swiss citizens in the Federal Supreme Court and strengthen the democratic system (cf. arguments of the initiative, in German).

The Federal Parliament and the Federal Council have advised against the proposal arguing it would weaken the principle of democratic legitimation of judges, which has a strong tradition within the Swiss legal system. In addition, the proposed election by draw would have hindered the election of the most suitable candidate. Despite a currently existing vague risk of political influence, practise had shown that all judges had been re-elected. A process according to which judges would be elected by draw, could not guarantee transparency of the political and social attitude of judges. Andreas Glaser, amongst others, has criticised that the independence of judges was already legally enshrined in art. 191c BV and secured by state practise and was therefore not at concrete risk.

Over the past years, academia, politicians and the judiciary have discussed controversially the proposal and the principles of judicial independence and democratic legitimacy, for example during the 1st Basel Conference Judiciary. Many have criticised the current system of re-elections (see also Gertrude Lübbe-Wolf in her post for the verfassungsblog from August 2019) or argued for the implementation of a prohibition of the “mandate taxes”.

Despite the dismissal of the initiative, the proposal contains interesting ideas which could inspire discussions far beyond the borders of Switzerland. The proposal’s aim was to introduce a selection procedure based on objective criteria free of political influence. In view of the European rule of law crises, a tempting thought!

Everybody who hears about the proposal is shocked at first: Why should judges be selected by lot? How could such an approach ensure the selection of the best possible candidate? Shouldn’t an independent process make sure that a selection is based on individual qualifications and personal competences? However, this first reaction disregards the fact that the personal qualities and competences of each applicant for the position is examined during the first round by the independent commission. The quality of this examination is crucial to evaluate this approach. If this process is based on a statutory catalogue of objective criteria, the nomination by the expert commission could be comprehensible and even be the subject of judicial review. Therefore, professional suitability could be checked even better than by selection on the basis of mere political membership. However, the proposal did not consider such a commission adequate to limit political influence on the selection process. It is indeed a possibility, that politicians would try to influence the working and membership in it. Therefore, the proposal suggested to limit the influence of such a commission by not giving it the final say on the successful candidate. Rather, the “focused lottery procedure” would give all qualified candidates, who reached the second round, equal chances of election – without the possibility of influence by certain persons in the moment of the draw. Of course, the system presupposes that the expert commission would have nominated a sufficiently large number of candidates. The smaller the number of people drawn by lot, the greater the influence of the expert commission and thus the greater the temptation to influence its composition and decision-making process.

At the heart of the matter is the importance of democratic legitimacy. Formally, democratic legitimacy could be achieved in such a system by an election of the successful candidate by the Federal Parliament, even if the actual selection would not be its responsibility anymore. Moreover, legitimacy could be established through the parliamentary regulation of the process and the composition of the expert commission. Moreover, a discussion on the democratic legitimacy of judges should take into account the views of academics, who base the democratic legitimacy of the judiciary primarily on the application of democratically adopted laws.((On democratic legitimisation of the judiciary see the following publications ins German: Michel, S, Gerichtsverwaltung und Court Management in Deutschland und in den USA, S. 108 ff; Tschentscher, A., Demokratische Legitimation der Dritten Gewalt, S. 145 ff.)) In its Opinion 18 (2015), the CCJE also stressed that judges earn legitimacy and trust through excellent work in the interest of the public.((CCJE Opinion No. 18 (2018) paras 16-19.)) Finally, a greater pool of candidates could make the judiciary more representative of society and thus more accepted. If membership in a political party was no longer a prerequisite for a nomination, more suitable candidates could be motivated to apply (on the advantages of a two-step procedure including a draw, see Osterloh et al, in German).

The goal of the initiative – to foster judicial independence – is crucial, as incidents in Switzerland over the past years have shown that political parties have tried to influence judges who did not rule according to their political line. However, decisive is not only the fact if – in practise – judges were actually not re-elected, but rather the mere fact of having to stand for re-election. The prospect of a forthcoming re-election alone bears a potential risk of influence respective judges and their decisions (see also Stiansen / Stadelmann and the research cited there, in German). Long-standing tradition or state practise is not a guarantee of judicial independence. Traditions can change, especially in a world of increasing political polarisation.

Judicial independence calls for a legal framework that allows judges to decide their cases according to law and justice alone. In any case, the re-election of Swiss federal judges and the so-called “mandate taxes” should be abolished. European standards, such as those formulated by the Venice Commission, the CCJE or GRECO, can facilitate a critical review of one’s own traditions on the basis of transnational exchange. Even after the rejection of the “Justiz-Initiative”, the ideas of the proposal deserve attention beyond the borders of the Swiss Confederation.