The Justice Initiative: Appointing the Federal Judges by Sortition

Collection of signatures for the Justice Initiative has been going on over the last month. By autumn 2019, the initiative must be signed by 100,000 citizens for it to qualify for the Swiss ballot. Although social networks are playing an increasingly important role in politics, the collectors of signatures on the street need convincing arguments.

The website is in French, German, Italian and Roman. I translated the German text using automatic translation and made some minor corrections. For those who can read German, here is the original text:

Bundesrichterinnen und Bundesrichter sollen Entscheide frei von Interessenkonflikten und politischen Einflüssen fällen können. Das ist heute nicht möglich.

Um von der Bundesversammlung als Bundesrichterin oder Bundesrichter gewählt zu werden, muss eine Person heute de facto einer politischen Partei angehören und über gute Beziehungen zu Entscheidungsträgern verfügen.

Dieses Beziehungsgeflecht besteht auch nach der Wahl in das Bundesgericht und kann die Entscheide der Richterinnen und Richter beeinflussen. Zudem kann mit der Drohung der Abwahl, Druck auf Richterinnen und Richter ausgeübt werden.

Deshalb sollen Juristinnen und Juristen alleine aufgrund ihrer Fähigkeiten – auch ohne Beziehungsnetz in die Politik und Verwaltung hinein – Bundesrichterin und Bundesrichter werden können. Und als solche sollten sie auch bei unbequemen Entscheiden keine Nachteile zu befürchten haben und nicht abgewählt werden können.

Diese Ziele werden mit der eidgenössischen Volksinitiative «Bestimmung der Bundesrichterinnen und Bundesrichter im Losverfahren» erreicht.

Richterkandidatinnen und -kandidaten dürfen einzig aufgrund ihrer fachlichen und persönlichen Qualifikation am Losverfahren teilnehmen. Das Losverfahren garantiert eine faire Besetzung des Bundesgerichts, ohne Rücksicht auf allfällige Parteibücher. Die im Losverfahren bestimmten Bundesrichterinnen und Bundesrichter, bleiben bis zur Pensionierung im Amt.

Translation:

Federal judges should be able to make decisions free from conflicts of interest and political influences. That is not possible today. To be elected by the Federal Assembly as a federal judge or a federal judge, a person today must de facto belong to a political party and have good relations with decision-makers. This network of relationships also exists after the election to the Federal Supreme Court and can influence the decisions of the judges. In addition, with the threat of dismissal, pressure can be exercised on judges. That is why lawyers should be able to become federal judges on their own merits – without a network of relationships in politics and administration. And as such, they should not have to worry about consequences of uncomfortable decisions and about being voted out. These goals are achieved with the federal popular initiative “Appointing the Federal Judges by Sortition”. Judge candidates may participate in the process solely on the basis of their professional and personal qualifications. The sortition system guarantees a fair composition of the Federal Court, regardless of any party membership. The federal judges, who are determined by lot, remain in office until retirement.

This might be a very important step for the use of sortition in present society.  And not limited to the appointment of judges. Let’s hope they get the 100,000 signatures in time.

Criteria and two proposals for the use of sortition in politics

The Dutch organization Democratie.nu has published a document (Dutch, German, Français, English) with criteria for the application of sortition in a political system and with two proposals for the use of sortition in the European political system.

The criteria deal with how the agenda is set, the sampling system, the size of the allotted chamber, its service term, its powers – advisory or binding and the potential for manipulation.

The two proposals are:

  • a “transitional” system in which the size of an allotted chamber is determined by the number of voters indicating support for this chamber during elections, and
  • a ‘European Citizens Jury’ – an allotted chamber set up as a review chamber next to the European parliament.

From the introduction:

According to historical sources, our political system was developed to protect the elite AGAINST democracy (sovereignty of the people). An “Electoral Aristocracy” was installed (18th century). Nevertheless, this can be seen as a positive evolution compared with monarchy.

Later on, some “democratic” elements were introduced, for instance “free”, or so called “democratic”, elections with universal suffrage, the equality principle, freedom of speech, freedom of organization, free press etc. However, some of those elements were moderated or abolished afterwards.

But a “democratic element” is not yet a “democracy”. Freedom of organization may be a “democratic element” without which a democracy cannot exist, but on its own it is no democracy. Hence “free elections”, to appoint a governor for instance, may be a democratic element, but on their own they are by no means a democracy. Furthermore, our political system of representation by elected representatives originates from the Roman Republican system and not from the Athenian Democracy. Calling our political system a “democracy” is deliberately misleading propaganda.
Continue reading

When is a democratic innovation not a democratic innovation? The populist challenge in Australia

An interesting article by Lucy Parry about the Australia mini-publics in participedia:

Outside the room: the populist challenge

Remember those NIMBYs and SIFs that mini-publics aim to exclude through random selection? Their exclusion rests on the assumption that the quality and outcome of deliberation is better without those insistent voices. The aim is that through a process of deliberation, people will become ‘more public-spirited, more tolerant, more knowledgeable, more attentive to the interests of others, and more probing of their own interests’ (Warren 1992, p8). Producing deliberated public opinion involves weeding out weak and poorly informed arguments. Again, this is all very well if you are inside the room. If you’re outside the room, you may very well object.

And let’s face it, those objectionable voices are not going away. As Ben Moffit points out, ‘Populism, once seen as a fringe phenomenon relegated to another era or only certain parts of the world, is now a mainstay of contemporary politics across the globe’. The voices that a Citizens’ Jury wants to keep out of the room now have the room surrounded. If we continue down the mini-publics road, the very thing that allegedly legitimises mini-publics will also be its downfall. The assumptions underpinning random selection are that it is representative of the wider community; and that it facilitates better quality deliberation by bringing together everyday citizens rather than insistent voices. Whether these things are accurate or not is a moot point – what actually matters is how they are perceived by broader publics. It is sad but possibly true that for those outside the room, what goes on inside the room doesn’t matter. And I suspect that the argument that a Jury is representative and very well informed is simply not going to cut it.

Mini-publics rely on information presented by experts; populism rejects the knowledge of experts. With all the will and most independently-recruited-and-facilitated process in the world – people may just not trust it.

This is in line with the criteria for the use of sortition in politics I proposed a while ago and especially with our Two Chamber proposal (page 9):

The presentations of the experts and groups of interests have to be public in case of legislative juries, in order to provide both public information and control. This also has to ensure that ‘informed citizens’ share the same view as the citizens’ jury. That way, we avoid that decisions taken by the citizens’ jury differ from what the people think, in case they had the chance to express their view in a referendum.)

Sortition as a direct democratic system to appoint a real citizens representation, also called “citizen jury“

INTRODUCTION

According to historical sources our political system was developed AGAINST democracy (sovereignty of the people). An “Electoral Aristocracy” was installed (18 century). Nevertheless, this can be seen as a positive evolution compared with ruling by inheritance.

Later on some “democratic” elements were installed, for instance “free” or so called “democratic” elections with universal suffrage, the equality principle, freedom of speech, freedom of organisation, free press, … but some of them were weakened or eliminated afterwards.

But a “democratic element” is not yet a “democracy”. Freedom of organisation may be a “democratic element”, without it a democracy can not exists, on his own it is no democracy. This way “free elections”, to appoint a governor for instance, can be a democratic element but on his own it is by no means a democracy.
Continue reading

Participation Toolkit

A book named “Participatory methods toolkit: a practitioner’s manual” was published in 2005 by the King Baudouin Foundation and the Flemish Institute for Science and Technology Assessment (viWTA).

This toolkit has a “citizens jury” part that may be of interest to us.

Page 21:

4) Participants

Recruitment

In some methods, the participants are supposed to be representative of the population at large. However, this may be unrealistic to achieve perfectly in practice. Purchasing random sampling phone numbers may prove financially unviable.

In this case, the advisory committee and project management will need to establish recruitment criteria and decide on another method, such as newspaper advertising. In newspaper recruitment, panellists are somewhat self-selected because they have to initially respond to an advertisement. In any method of recruitment an element of bias is introduced at the selection stage by the preferences of the selection committee. Recruitment is usually done three to four months prior to the first activity.
Continue reading

Criteria for the application of sortition in a political system

Preamble:

Representation by sortition is defined as “democratic” while representation by election is defined as “aristocratic”. Sortition is a democratic instrument because this way people are represented by “their peers” while in an election-based system people are choosing “the best” as “leaders” (= electoral aristocracy).

To illustrate the aristocratic nature of the electoral system, we can take the example of (what may be a somewhat romanticized description of) pirate ships. A hundred years before the French Revolution, pirate ships were run on lines in which liberty, equality and fraternity were the rule. On a pirate ship, the captain was elected and could be deposed by the votes of the crew. The crew, and not the captain, decided whether to attack a particular ship, or a fleet of ships.

The ancient Greeks (circa 400 BC) used the electoral system for the designation of “the best” as military generals. The legislative institutions, however, were based on democratic instruments: representation by sortition and the people’s assembly. Using an electoral system for legislative institutions mainly finds its origins in the Roman Republic [1].
Continue reading