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.

The people’s voice: as rage and as healing

There’s a spectre haunting Europe … and the rest of the Western world. We have elaborate ‘diversity’ programs in good upper-middle-class places to prevent discrimination against all manner of minorities (and majorities like women). It’s a fine thing. But there’s a diversity challenge a little closer to home which is tearing the world apart. There’s a war on the less well educated.

They’re falling out of the economy in droves, being driven into marginal employment or out of the labour force. This is a vexing problem to solve economically if the electorate values rising incomes which it does. Because, as a rule, the less well educated are less productive.

Still, the less well educated are marginalised from polite society. Polite society even runs special newspapers for them. They’re called tabloids and they’re full of resentment and hate. And yes, a big reason they are the way they are is that the less well educated buy them. They’re also marginalised, except in stereotyped form from TV.

Then there are our institutions of governance. While less than 50 per cent of our population are university educated, over 90 per cent of our parliamentarians are. Something very similar would be going on down the chain of public and private governance down to local councils and private firms.

And I’m pretty confident that a lot of this is internalised even by those not well educated. The last working-class Prime Minister we’ve had in Australia was Ben Chifley who was turfed out of office by a silver-tongued barrister in 1949. Barrie Unsworth in NSW going down badly in his first election as NSW Premier despite seeming – at least to me to be doing quite a good job. But he sounded working class – because he was. I wonder if that was it?

The world is made by and for the upper middle class, those who’ve been to the right schools and gone to unis (preferably the right unis), to get on. The ancient Greeks had a political/legal principle of relevance here which is entirely absent from our political language. In addition to ‘παρρησία’ or ‘parrhesia‘ which is often translated as ‘freedom of speech’ but which also carries a connotation of the duty to speak the truth boldly for the community’s wellbeing even at your own cost (as Socrates did), they also had the concept of ‘ισηγορια’ or ‘isegoria‘ meaning equality of speech.1

In Australia Pauline Hanson’s One Nation represents the political system’s concession to isegoria – toxified as a protest party within a hostile political culture. My own support for a greater role for selection by lot in our democracy is to build more isegoria into our political system in a way that, I think there’s good evidence, can help us get to a much better politics and policy.

In any event, the big, most toxified political events illustrating these problems are, of course, Brexit and Trump – concrete political acts of transformative significance standing before illustrating the power of isegoria as rage. Continue reading

Ackerman and Le Grand: How to have a serious referendum on Brexit and avoid a rerun of the original

Not being British I hesitate to post this entry, but I am advised by an informed source that “this is DIRECTLY on point re your sortition cause, and from perhaps the most prominent public law academic of the past century.”

To me the article seems to be a direct lift of Fishkin’s “Deliberation Day”:

A number of things were wrong with the 2016 referendum, including the disenfranchisement of key stakeholders and the extent of misinformation by both sides. Given that referendums should be informed exercises in democratic decision-making, Bruce Ackerman [Sterling Professor of Law and Political Science at Yale] and Sir Julian Le Grand [Professor of Social Policy at the Marshall Institute, LSE] explain how a referendum on the deal should look like.

[T]he government should take affirmative steps to fill the information gap. The best way forward is suggested by social science experiments, including an early one held in Britain. In 1994, Channel Four organised an intensive discussion amongst ordinary citizens on whether the UK should become more or less engaged with Europe. The scientifically selected sample of 238 participants went to Manchester for a weekend to engage in a series of small group exchanges with competing experts for Yes and No, as well as representatives from the three major parties. At the end of the weekend, support for Britain’s increased integration into the EU rose from 45% to 60%. In contrast, support for the Euro did not rise above 35%. Before-and-after questionnaires established that participants became more knowledgeable.

Fintan O’Toole: If only Brexit had been run like Ireland’s referendum

Fintan O’Toole has a glowing account in the Guardian about Ireland’s constitutional referendum. It advertises the allotted chamber process as the antidote to what troubles the establishment with electoral politics.

As O’Toole’s sees things, the trouble with electoral politics is “tribalism and fake ‘facts’”. With some careful management, the public can come to see sense and vote accordingly.

In all the excitement of what happened in Ireland’s referendum on abortion, we should not lose sight of what did not happen. A vote on an emotive subject was not subverted. The tactics that have been so successful for the right and the far right in the UK, the US, Hungary and elsewhere did not work. A democracy navigated its way through some very rough terrain and came home not just alive but more alive than it was before. In the world we inhabit, these things are worth celebrating but also worth learning from. Political circumstances are never quite the same twice, but some of what happened and did not happen in Ireland surely contains more general lessons.

When Citizens Assemble

What happens when Irish citizens get to deliberate on abortion law?

Ireland’s efforts to break a political deadlock over its de facto ban on abortion inspired a bold response – the creation of a Citizens’ Assembly to tackle on the issue.

During five weekends spread over five months, a random selection of Irish people deliberated on the highly divisive and controversial issue. Their conclusion, in April 2017, recommended a radical liberalisation of existing laws, including a change to the Constitution.

Their work helped prompt Irish Taoiseach Leo Varadkar to pledge a national referendum on abortion. In 2018, Irish voters will have a chance to make new laws.

Breakthrough moment

The Assembly represents a breakthrough moment not just for Ireland but also for ways of doing politics in the rest of the world. Ireland used random selection and deliberation on a highly contentious issue, rather than leaving it to elected politicians. The effect is to gift us all a real-life lesson in doing democracy differently.

At a time of deep dysfunction in our electorally driven political models – what issue wouldn’t lend itself to a citizens’ assembly approach?

When Citizens Assemble is the first in a global, nine-film series on the state of democracy and efforts to radically improve the way it works. Please feel free to sign up for project updates, to offer funds for its completion or other support in kind.

 

When Citizens Assemble from Patrick Chalmers on Vimeo.

Sortition in Switzerland

The Swiss news website 24heures has a story about sortition in Switzerland. (Original in French, my translation, corrections welcome.)

And if parliament members were allotted?

Democracy A seminar examines the use of sortition in Switzerland, which some citizens want to implement.

By Caroline Zuercher, 25.10.2017

Antoine Chollet, research professor at UNIL. Photo: Marius Affolter

Allotment is useful not only for selecting the winners in lotteries. A group of citizens, Generation Nomination, wants to use it for selecting our people’s representatives in Berne. In time, they place to launch a initiative to this effect. The mechanism is far from being new having already been used in ancient Greece. An international seminar, on Friday and Saturday at the university of Lausanne is examining exactly these experiences in Switzerland and in Europe.

Sortition has been used in various contexts. And it has not always been synonymous with democracy. Antoine Chollet, teaching assistant in the University of Lausanne, gives and example. In the 18th century Berne used it to name bailiffs and other magistrates, but only the members of noble families participated in the allotment. The goal was therefore about all to share power among the powerful.

Switzerland had more democratic experiences as well. Studies supported by the National Swiss fund for scientific research examined cases in Schwytz and in Glaris. “There, the people demanded allotment in order to reduce the corruption of the elites and to enhance the circle of powerful families”, explains the researcher. In Glaris at the end of the 18 century, for example, the deputies were for allotted among the entire body of citizens. With limited success: “Our research shows that it was transformed into a form of lottery. Those who were selected could resell their post: that was the great prize!”
Continue reading

Sortition-related proposals in Belgium and Switzerland

In Belgium, Christie Morreale, a senator, proposes a Peonidisesque scheme where blank votes would be translated into allotted MPs.

In Switzerland “Génération nomination” is starting to collect signatures for putting its sortition-related proposal on the ballot. According to the proposal, 50 out of the 200 members of the Swiss national council would be selected by lot.