“Now it is the Parliament’s turn, it must assume political responsibility”

Interview with Professor Dr iur Andreas Glaser*

On 5 July 1891, the Swiss popular initiative was introduced by the Swiss people. In order to look back on this event and to look forward, the Centre for Democracy in Aarau invited on 5 July 2016 for a panel discussion with the title “125 years of Swiss popular initiative – a success story?”
Moderated by Professor Andreas Glaser, a lively discussion at a high political level took place with a numerous attending audience which participated lively.

Current Concerns: I found the event very interesting, very lively, which I liked.

Professor Andreas Glaser: I am glad you did.

There are some questions regarding your analysis of the Federal Court judgment of 26 November 20151. Among other things you stated that the Federal Court trespassed the separation of powers and that it interfered in politics. We live in a direct democracy: what can we do as citizens?

Now it is the Parliament’s turn, it must assume political responsibility. It is very convenient for Parliament to shift this upon the Federal Court. National Council and Council of States must now have the courage – if they wish – to decide on a unilateral implementation [of Article 121a of the Federal Constitution (Control of immigration); note Current Concerns]. Then this is no problem. The Federal Court would then have to respond to a parliamentary vote, that would be a completely different situation.

Even though the Federal Court has announced in advance that it would not accept a unilateral implementation by Parliament?

Well, it said so in advance. But how it decides in retrospect is another story. I would trust on that. If Parliament really decrees: this is the way we want to implement Article 121a of the Federal Constitution, then the Federal Court will respond differently than it did beforehand.

The Federal Court has actually the task to administer justice. What do you think about the fact that it is increasingly tracking politics?

When it comes to constitutional issues, their decrees are always partly political. For example, in voting complaints as recently with respect to the corporate tax reform, the Federal Court has also had a political task. The question is: how reluctant is it? There it has to strike a balance, which is not always easy.

But in this case the opinion of the Federal Court was clearly political …

Parliament must react. It is legitimate that it now puts an emphasis contrary to the Federal Court.

If it does ...

True, if it does. If not, this will be your own fault. Then you need to elect different parliamentarians if you don’t like what they do2. Mr Stöckli has said: “We are elected by the people.” And so he is of course right. [Council of States Hans Stöckli, SP Berne, took part in a previous discussion; note Current Concerns]

Am I correct that the Federal Court has uttered more political statements since the EEA vote, and since there is an increasingly biting political tone?

There are individual cases in which it comments on political issues. There are also thousands of cases where the court does not decree in a political minefield. However, it has become more important which political party a federal judge belongs to and how the chamber is composed. A certain polarization is likely to be seen even in the Federal Court, I do not want to deny this.

As you wrote in your analysis, there are also divisions of the Federal Court where it is different.

Yes, provisionally. This needs watching. There are departments that are more restrained, and those who are a little more aggressive. That depends on the person of the individual judges. The criteria that play a role in the selection of judges are set by the Parliamentary Justice Commission.

Have I understood you correctly that we citizens cannot do much against unilateral Federal Court decrees, but that we have to elect parliamentarians who represent us properly?

Right, this is how I see it. The Parliament ultimately meets political decisions and elects the federal judges.

Professor Glaser, thank you for the enlightening conversation.     •

(Interview Marianne Wüthrich)

1     “Politik in der Defensive: Zwischen Vorrang des FZA und dynamischer Rezeption der EuGH-Rechtsprechung. Anmerkung zum Urteil des Bundesgerichts 2C_716/2014 vom 26.11.2015”. www.rwi.uzh.ch  (Politics on the defensive: between primacy of the FZA and dynamic reception of ECJ jurisdiction. Notes on the verdict of the Federal Court 2C_716/2014 on 26 Nov 2015)
2     Federal judges are elected by the Federal Assembly, which is National Council and Council of States.