Swiss Review 5/2021

Swiss Review / October 2021 / No.5 20 Politics THEODORA PETER The Federal Supreme Court (FSC) in Lausanne is Switzer- land’s highest court. It provides final rulings on the legiti- macy of verdicts reached by lower courts as well as on points of law that affect the lives of millions of people in Switzerland. As the third branch of the federal state, the FSC is subordinate only to the law. The United Federal Assembly representing both chambers of parliament elects the FSC judges.When doing so, it deliberately takes account of the respective strength of the parliamentary parties to ensure that the FSC adequately represents society and has democratic legitimacy. However, this unwritten rule – a sort of gentlemen’s agree- ment – means that anyone who wants to sit on the bench must join a political party. Judges must pay an annual sub- scription fee to “their” party, of between 3,000 and 10,000 Swiss francs depending on the party (federal judges earn a salary of 365,000 francs). This idiosyncrasy has long been the subject of criticismabroad. The Group of States against Corruption (GRECO) – the Council of Europe’s anti-corrup- tion body – believes the fee violates the principle of judicial independence. One of the arguments given by Switzerland to justify the tradition is that its political parties receive no public funding, unlike in other countries. Unpopular judges voted out Another GRECO criticism is that the federal judges have to be re-elected by parliament every six years. In its opinion, this procedure risks judges being voted out on political grounds. Indeed, punitive action against unpopular judges is not uncommon in Switzerland. In autumn 2020, the SVP recommended its own federal judge Yves Donzallaz for deselection because Donzallaz had contradicted the party line. In 2015, he had been involved in an FSC decision that saw the Swiss-EU Agreement on the free movement of persons take precedence over the “Stopmass immigration initiative” that the SVP had successfully put to the people. In the end, Donzallaz was comfortably re-elected by par- liament – albeit without any votes from “his” party. The “crucifix case” made headlines in the 1990s, when the FSC established the principle, specifically with regard to primary schools, that crucifixes were contrary to reli- gious neutrality. Catholics thought this verdict was dis- criminatory. The federal judges involved were re-elected but received a relatively low number of votes as punish- ment. Drawing lots Businessman Adrian Gasser has long been one of the crit- ics of this intertwining of politics and the judiciary. Gasser is the author of the Justice Initiative being put to voters on 28 November – a radical proposal that calls for federal Independence of the judiciary under scrutiny Anyone who wants to become a federal judge in Switzerland must join a political party. This has raised concerns about the separation of powers within the federal structure. The Justice Initiative wants radical change. It will be put to voters on 28 November. The marble entrance to the Federal Supreme Court in Lausanne: will the judges climb- ing these steps be decided by the luck of the draw in future? Photo: Keystone