ZURICH (Reuters) - Swiss supreme court judges are members of political parties, they may rely on their party’s support to be elected and re-elected, and they donate thousands of francs a year to party coffers.
This unusual blurring of lines between courts and politics is an institutional flaw in Switzerland that makes the judiciary prone to political pressure, four former judges told Reuters.
Legal experts, including the Swiss judges’ association, have long called for overhauling the way supreme court judges are appointed. The matter has now reached a head, and campaigners have submitted the 100,000 signatures required to trigger a national referendum.
The issue of judicial independence was pushed to the fore over the summer when the supreme court ruled in favor of releasing data from Swiss bank UBS to French authorities, a move the right-wing Swiss People’s Party (SVP) had strongly opposed.
The SVP was furious because the judge who tipped the scales in the 3-2 vote, Yves Donzallaz, is one of its paid-up members. It even threatened not to back Donzallaz’ re-election next year.
Donzallaz declined to comment.
The spat has led to a public debate about political interference that has surprised many Swiss people who had been unaware of the judiciary’s strong ties to parties.
“Switzerland doesn’t have separation of powers, it’s a farce. The judiciary must be separated from politics,” said entrepreneur Adrian Gasser, who is behind the referendum campaign.
The campaign proposes to appoint the judges by drawing lots from a pool of suitable candidates selected by an independent expert committee, and to let them keep their job until five years beyond statutory retirement age.
A people’s vote is likely still a few years away as the government and parliament need to examine the proposal and might come up with an alternative plan.
But if campaigners insist on pressing on, the issue of judicial independence will end up on Switzerland’s busy voting agenda that allows citizens to express their views in about 10 national referendums a year.
Currently, Switzerland’s biggest political parties nominate supreme court candidates from their own ranks as their political affiliation is supposed to broadly mirror the parties’ relative strength in parliament. Judges must then seek re-election by lawmakers every six years.
By convention, though not written law, judges contribute part of their salaries to their party. Supreme court judges for the Liberals pay about 3,000 Swiss francs ($3,029.08) a year, the SVP demands around 7,000 francs.
Among the left-wing parties, which typically cannot rely as much on wealthy donors, payments can reach up to 20,000 francs, according to a survey published in the Swiss judges’ newspaper in 2017.
Of 38 supreme court judges, conservative and liberal parties will have 27 from next year, including 12 for the SVP, while the Social Democrats and Greens will have 11.
EX-JUDGES SPEAK OUT
Proponents of the current system in Switzerland say it fosters balance and point to the fact no supreme court judge has ever been replaced for political reasons, as no single party has sufficient weight in parliament to impose such a change.
Swiss campaigners are not alone in questioning their country’s separation of powers.
In the United States, for example, Supreme Court justices are nominated by the president and confirmed by the Senate for life, which critics say can tilt their decisions in the administration’s favor.
By contrast in Germany, judges of the Federal Constitutional Court are elected by parliament for a non-renewable 12-year term to preserve their independence.
The four former Swiss supreme court judges, from across the political spectrum, told Reuters that while the system of parties nominating judges was meant to ensure diverse political standpoints, it had also become a lever to pressure courts.
“It has become much more common these days to try and exert pressure,” former supreme court judge Niccolo Raselli said, recalling a 1990 ruling banning crucifixes from classrooms as the earliest example of judges being penalized with weak re-election scores.
Franz Nyffeler, a former supreme court judge affiliated with the SVP, recalled threats over a 2003 ruling that led to banning the practice of letting Swiss citizens vote on a foreigner’s application for a Swiss passport.
“A party fearing mass immigration more than a lack of legal protection in the naturalization process became so angry it threatened not to back the re-election of its judges if they continued to disrespect the party program in their rulings,” Nyffeler told Reuters. A discussion between judges and the party had helped smooth things out at the time, he said.
SVP politician Sebastian Frehner, a member of the parliamentary committee that nominates judges, said it was normal to expect a judge to broadly reflect the party line as long as political affiliation played a role in appointments.
“Of course political parties are allowed to threaten not to re-elect a judge,” he told Reuters. “You have to question judges who regularly behave as if they didn’t belong to their party. Otherwise the proportional representation isn’t respected.”
The Council of Europe’s group of states against corruption (GRECO) recommended in 2017 eliminating Swiss judges’ payments to their parties, revising or abolishing their re-election procedure and making sure no ruling cost judges their job.
Some legal experts said the fact that judges had to seek re-election posed a major problem.
“In other countries, threats against judges just die away, but not in Switzerland where they actually need to be re-elected,” law professor Regina Kiener said.
“That has a chilling effect on all supreme court judges. They know that unpopular rulings will be noted and possibly penalized.”
Donzallaz’s decision to back transferring bank data to French authorities showed he was willing to risk a clash with his party. But not every judge may be prepared to do so at a time when political finger-pointing can trigger online uproar, campaigners say.
“You need a special personality to do this job. You are very alone, thinking things through without letting anybody influence you,” said former supreme court judge Danielle Yersin.
Vera Rottenberg, another former judge, said it was crucial to preserve the judiciary’s independence.
“A weak judiciary points to a failed state. Where else can citizens turn to protect them from executive powers?”
(Graphic - Swiss supreme court judges contributions to political parties - tmsnrt.rs/2P9FWwl)
Reporting by Silke Koltrowitz; Editing by Pravin Char