The Swiss Council of States rejects sortition for judges

SwissInfo reports:

Like the National Council, the Council of States has rejected the initiative that would replace the selection of judges by election to their selection by sortition.

Submitted by the entrepreneur Adrian Gasser, the initiative “Appointment of federal judges by sortition” aims to make judges more independent. The candidates have to attain their high position based solely on their qualifications, even if they do not have a political network, according to the text of the initiative.

Selected by a a commission of experts, the judges would then be allotted in a way that the official languages would be fairly represented. They would be able to serve five years beyond the normal age of retirement.

Democratic legitimacy

The senators have implicitly rejected the text. The initiative contradicts the Swiss practice where judges are elected and enjoy democratic legitimacy, a principle that is incompatible with a random process, declared Beat Rieder, a member of the judiciary committee.

The existing system has proven itself. Andrea Caroni, the president of the commission, the idea must be “voting rather than rolling the dice, democracy rather than lottery”. Sortition would in no way guaranty more independence and more fairness, added Thomas Minder.

The choices of the members of the commission of experts would not be neutral either, added Carlo Sommaruga. And it would not necessarily be the best that would be designated due to chance, concurred Karin Keller-Sutter, the Minister of Justice. According to her, the initiative introduces a “foreign element” into our institutions.

A different proposal that was also discussed would have judges elected for life rather than facing periodic re-election. In practice, however, non-re-elections are very rare. This proposal was rejected as well. According to article, Andrea Caroni thinks that “parliament knows how to protect the judiciary institution”.

One Response

  1. Swiss judges are not elected by the public, they are “elected” by politicians on a proportional rep basis with the politicians from each party only electing members of their party. The judges pay a portion of their salary to the party that “elected” them.

    I do not support the proposal to use sortition to choose from a pool of candidates who are considered well-qualified by an “independent commission of experts.” It excludes the public from having a say in who their judges are. To me it does not make much or any more sense than having politicians chosen by sortition from a pool of candidates deemed well-qualified by an “independent commission of experts.”

    Instead, I have for decades argued that judges be chosen by jury so they will be chosen in an informed way by representative microcosms of the people, independently from politicians, political parties, moneyed interests, campaign donors and blue ribbon “independent commissions of experts.”

    Besides choosing judges by jury, the other reform path that makes sense to me regarding who makes judicial decisions is increasing the role of juries in deciding cases. This could in the US mean actually honouring the Constitutionally guaranteed right to trial by jury by stopping judges from denying that right if the sentence will not be more than 6 months in prison, and preventing judges from locking people up or putting them under house arrest for months or even years in pre-trial detention without any trial by jury about that detention. It could also mean juries being told they have the right to reject the application of laws they deem unjust, instead of hiding from jurors that they have that right. Limiting the ability of lawyers to tailor/pack juries by rejecting jurors they don’t want is also probably a good idea.

    Also, split decisions of the Supreme Court and other appellate courts could be decided by judicial juries. The public, through juries, ought in my view to have the option of putting such judicial juries in place.

    Liked by 1 person

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