The Swiss Radio Lac reports:
Sortition is proposed
[In addition to other proposals] the Swiss will also have to vote [on November 28th] on the proposition regarding the judicial system. The proposition would institute appointment of judges using sortition in order to make them more independent. Official languages would have to be equitably represented and the judges would be able to serve up to 5 years beyond the normal age of retirement.
Parliament has rejected the text, without offering a counter-proposition, either direct or indirect. According to the elected, sortition would not guarantee better independence or better equality. Moreover, it would damage the democratic legitimacy of the judges.
Judges in Switzerland are currently appointed by the Swiss Parliament and they need to be re-appointed periodically. The notion that this provides judges with “democratic legitimacy” runs against standard liberal dogma:
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 Council of Europe’s Group of States against Corruption (GRECO) has also rebuked Switzerland.
Filed under: Ballot measures, Elections, Proposals, Sortition |
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Equality by lot 
In countries where government does not command the assent of a significant minority the population, such as Northern Ireland, choice of judges by all politicians could produce some very strange results.
It was suggested once, by The Economist that a quota of catholic judges had to be filled (from presumably Loyalists only). They were heavily fined for saying this, despite it being common knowledge that it was so.
So it’s hats off to many States in the USA who daily allocate judges to trials at random. This must involve 1,000s of random draws, possibly the biggest exercise in random allocation in the World!
See link below, for more details of this lottery in use.
This may seem a simple administrative chore, but strong suspicion exists that UK (England, Scotland) judges are hand-picked by the Chief lawyer of the ruling political party to ensure that a verdict favourable to the Government is brought in.
Allocating judges to trials at random as in the US is highly desirable, democratically.
Link for this reply
https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.conallboyle.com%2Flottery%2F114RandomCaseAssignment.doc&wdOrigin=BROWSELINK
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With a colleague, we’ve explored the arguments for selecting judges randomly (among those with the required qualification):
Long, academic version: https://www.academia.edu/44293873/Selecting_Constitutional_Judges_Randomly_SPSR_2020_
Short version: https://www.newdemocracy.com.au/wp-content/uploads/2020/12/RD-Note-Judicial-Nomination.pdf
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Thanks, Pierre-Etienne.
I read the short version and I liked that you added the “Is our proposal excessively elitist – or even antidemocratic?” section. It seems to me most sortition advocates would not have addressed this crucial question.
Still, I do think you concede too much to the elitist status quo. When you write that
you are a-priori accepting that there are some “constitutional principles” that are the appanage of a guardian elite. It seems to me such a concession runs directly against the democratic notion that people are the ones to set the way their society is run.
Of course, as always, if an allotted constitutional assembly, or individual members within it, wish to consult experts as they deliberate and make their decisions, they would be able to do so. But the binding power to make decisions must be at the hands of the allotted, not the experts.
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Rather than thinking of constitutional rights as things protected by a guardian elite (which ordinary people can’t appreciate), there is a better analogy. Constitutional rights are things ordinary people see the wisdom of if they are to be applied in some future unknown case, rather than in the immediate circumstance. People can endorse freedom of speech in general, even as they want to ban speech of a particular person who just said something outrageous (in their opinion). The analogy is placing your alarm clock out of reach to force the future you to get out of bed the next morning, because the you of next morning will not want to get up. I believe it is democratic for a rule-making mini-public to establish a procedure that binds a future mini-public to adhere to constitutional requirements in a specific circumstance where the new mini-public would rather not. The ordinary people serve as the guardians through time.
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Goram, I agree with you that judges should not make political decisions. I’m in favor of weak courts giving a legally-informed opinion on the constitutionality of laws. In a way, this could be seen as experts informing our representatives (whether elected or allotted).
Terrill, interesting suggestion!
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Terry,
But who will decide if an allotted body dealing with a specific case does or does not adhere to the “constitutional rights” set by a different “rule-making” body?
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https://www.admin.ch/justiz-initiative
Die Initiative wurde verworfen. Kantone: 0 Ja, 20 6/2 Nein.
Provisorische Ergebnisse vom Abstimmungssonntag. Die definitiven Ergebnisse werden nach Erwahrung durch den Bundesrat – jeweils gut 2 Monate nach der Abstimmung – aufgeschaltet und können leicht von den provisorischen Ergebnissen abweichen.
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*** Writing about constitutional review, Vandamme & Hutt write “it is hard to deny that the task requires some degree of legal expertise, at least on some constitutional matters. Judging the conformity of a given law with constitutional principles is not very accessible to the wider public. And it is probably less accessible than judging the desirability of a law”.
*** This statement is very debatable. I don’t think constitutional points are so difficult to understand. It is strange Vandamme & Hutt don’t give examples (except in long version about suspension of the Parliament during the Brexit process, which does not seem very difficult to understand).
*** The desirability of a specific law against covid is not a simple issue; with many points about the covid itself (with few consensus among experts ) and about the consequences of the decisions (ex: closing schools to stop contamination, which consequences for children ? which consequences of lockdowns and business closures for economy? for mental health ? ). The constitutional points – for instance, which restrictions to individual freedom (of travel, of work, of vaccination …) are to be accepted considering the risk to life of some classes of persons ? – are “difficult” choices maybe, from a moral point of view, but not difficult to understand. No need of ten years law school !
*** I am afraid the competence issue is covering another issue, which is intrinsically different: that judges ” selected among the whole population would be inclined to merely assess the desirability of laws they would review, based on their political preferences” whereas a judicial elite would consider more seriously the constitutional points, by effect of their specialization. I have doubts about this line (how many examples of constitutional reviews orthogonal to the consensus of the social elites the judicial elite is connected with ?) but anyway the issue is different.
*** It is interesting, here, to remind the “hybrid” proposal by Threlkeld: a citizen jury when there is disagreement inside the Supreme Court. But if constitutional review power is given to ordinary citizens without legislative power they will be tempted to use their judicial power to legislate – as the constitutional judges do in polyarchies.
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Thank you for the interesting comments! I agree that it can be harder to assess the desirability of a law than its constitutionality. What we meant is that the two types of judgments are different. It seems obvious that people or their representatives should assess the desirability, in a democratic context. And if, aside of that, we want an exclusively legal opinion on a law project, it does not seem absurd to ask specialized lawyers. As long as the two types of judgments (political/legal) are kept separate (with weakly empowered and randomly selected courts), I still believe it is defendable. But I’m open to alternative suggestions about popular constitutional review.
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[…] The journal Raisons politiques devoted a large part of an issue to sortition. In Switzerland, a proposal to select judges by lot among qualified candidates failed at the […]
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