Foreign Judges: How Biased Are State Judicial Organs?

From the Vault. By PFS member David Dürr. Translated from David Dürr, “Fremde Richter: Wie befangen sind staatliche Gerichtsorgane?”, eigentümlich frei (25 July, 20214). Eigentümlich frei (“peculiarly free”) is a German magazine edited by André F. Lichtschlag. Other Dürr articles at eigentümlich frei.

Foreign Judges
How Biased Are State Judicial Organs?

David Dürr  |  July 25, 2014

What exactly is the argument against foreign judges? I, for one, do not know. As far as I am concerned, a judge can be foreign. In fact, it might even have advantages. Being an outsider means they are not overly entangled in the domestic squabbles of the litigating parties, which might offer an even better guarantee of objectivity and impartiality.

With the European Court of Justice, which our wise Swiss Foreign Minister Burkhalter is now proposing as the tribunal for disputes between Switzerland and the EU, my grievance is not that it is foreign, but rather that it is biased. The judicial bench of this court is composed of nationals from EU member states and is on the EU payroll. The court is, as the terminology vividly implies, an “organ” of the EU. And this EU organ is now supposed to adjudicate disputes in which one of the litigating parties is the EU itself. Rather absurd, is it not?

That would be akin to Mr. Burkhalter proposing that disputes between the EU and Switzerland should ultimately be adjudicated by the Swiss Federal Supreme Court—meaning by exclusively Swiss judges, all of whose salaries are paid by Switzerland. Can you imagine the outrage, or more likely the laughter, that such a proposal would—justifiably—provoke in Brussels?

But why on earth does a Federal Councillor, who is presumably of at least average intelligence, conceive the idea of meeting the EU’s demand for its own biased judicial organ not with laughter, but instead accommodating and even championing it? The answer is as simple as it is unsettling: because biased courts are entirely normal to state-upholding figures like a Federal Councillor. All state courts are biased and partial; they are so by definition. At least, this is always the case when they are called upon to adjudicate a dispute in which one of the two parties is the state itself. If, for instance, you wish to challenge a tax bill, a demolition ban, a smoking ban, a homeschooling ban, the prohibition of blue flashing lights for private citizens, the mandatory legal representation before courts, or any of a thousand other prohibitions, mandates, licensing requirements, or restrictions imposed by state authorities, the decision is invariably made by a court appointed and paid by the state itself.

To sugarcoat this reality, it is routinely claimed that this poses no issue due to the so-called separation of powers. Supposedly, there exists something akin to a high and thick Chinese wall between the executive authorities on the one hand and the judiciary on the other. The only pity is that this is simply not true. In my decades of practice as an attorney, I have walked through quite a few court and administrative buildings. I have never encountered a particularly high wall. On the contrary, judges and bureaucrats are frequently connected to the same telephone switchboard, use the same domain name for their emails, share the same letterhead for their mail, keep the same working hours, belong to the same pension fund, are on the same salary scale, and—above all—share the exact same state employer.

How much more independent would truly foreign judges be!