Martha Niquille, Das Bundesgericht verwaltet sich selbst (Art. 188 Abs. 3 BV), AJP/PJA 9/2013, pp. 1358 – 1367
Martha Niquille – Das Bundesgericht verwaltet sich selbst
Background
Exactly fifty years after the introduction of the right of women to vote and to stand for election at the federal level, and 147 years after Johann Jakob Blumer was elected the first president of the permanent Federal Supreme Court (see Part I. C. 3.1), the Federal Supreme Court is chaired by a woman for the first time in 2021/2022, Martha Niquille (born 1954). Next to her, 14 female and 23 male federal judges are members of the Federal Supreme Court in 2021. After studying law and completing her research at the University of St. Gallen, she obtained her doctorate in 1982. She was admitted to the bar of St. Gallen in 1984 where she first practiced and taught contracts and torts at the Law School. In 1993, she was appointed judge at the Cantonal Court of St. Gallen, which she chaired from 2005 to 2007. The United Federal Assembly (combined National Council and Council of States) elected her as a federal judge in 2008. At the beginning, she was part of the division of social law in Lucerne and was a member of the board (“Verwaltungskommission”) of the Federal Supreme Court for the first time in 2011/2012. In 2013, she moved to one of the civil law divisions, located at the seat of the Federal Supreme Court in Lausanne. She served as Vice-President from 2017 to 2020 and as President as of 2021. In one of her first publications, she dealt with aspects of the Federal Supreme Court in an international context (“Bezugnahmen des Bundesgerichts auf internationale Menschenrechtsbestimmungen aus methodischer Sicht”, 1981). In the 2007 essay, she addressed the challenges of female judges (“Richterinnen der zweiten Generation in veränderten Rahmenbedingungen?”), where she concluded, based on a survey of the higher cantonal courts, that for female judges of the second generation the challenge of reconciling the judicial office with family duties had become an important issue. The following text deals with the self-administration of the Federal Supreme Court. In this context, the chair of the Federal Supreme Court has an important task, which is why some characteristics of the Presidency of the Federal Supreme Court should be mentioned at the outset:
The President of the Federal Supreme Court is elected for a two-year term by the United Federal Assembly upon the motion of the Federal Supreme Court. Since the reform of the federal judiciary, which came into force in 2007, the Federal Assembly has made use of the possibility of a one-time re-election for reasons of continuity. In comparison with foreign supreme courts (e.g. the German Federal Constitutional Court, the US Supreme Court), but also with cantonal courts, the chair person changes after a rather short period of time. Whereas until the reform of the federal judiciary, the Federal Assembly regularly elected the longest-serving member of the Federal Supreme Court as president on the basis of seniority – insofar as the person made herself available -, since the reform increasing attention is paid to the suitability for the office in terms of leadership and communication.
The president chairs the assembly of all ordinary judges (full court) and, since 2007, also the board consisting of the president and the vice-president of the Federal Supreme Court (the latter also elected by the Federal Assembly) and the third member (elected by the full court). This commission is responsible for the administration of the court. The committee was deliberately kept small so that the other judges can devote themselves to cases. The president represents the court externally, in particular vis-à-vis parliament and the public at large. The presidency of the court has no special function in the jurisdiction. Rather, the president participates in the administration of justice as a normal member of a judicial division, while being granted a certain relief from case work.
Judicial self-administration is an administrative activity by which the courts themselves create the administrative conditions for the judicial activity. The following text describes the purposes and some important tasks of this function. Self-government applies within the framework of legislation, the budget adopted by Parliament and parliamentary supervision (see Part I A. 2.3).
Summary
The author begins by pointing out that the revised Federal Constitution of 1999 brought about considerable innovations in the area of the judiciary. Among other things, it provides self-governance for the Federal Supreme Court. Self-administration is the administration that is due to the courts – and not to another state power. Its function results, on the one hand, from separation of powers and, on the other hand, from the status of the self-administration provided for to the Court by the Constitution. The purpose of judicial self-administration is often seen in terms of protecting judicial independence. However, the latter exclusively refers to the judicial activity. Only to the extent that the independence of the judiciary would be endangered without self-administration, does self-administration serve judicial independence. In making this distinction, the author refers to the discussions in Germany, where the courts are much more integrated into the administrative structures of government than in Switzerland. It is questionable whether the transfer of entire administrative areas, such as finances, personnel administration, IT, etc. to the courts could be justified by judicial independence on its own. While it is true that inconvenient rulings risk being sanctioned by budgetary cuts, it is difficult to imagine that the judiciary is fully independent of both government and parliament in terms of funding and budgetary allocation. In Germany, it has been clarified by the highest courts that judicial independence is not violated if the information technology is not operated by the court itself. The Federal Constitution only confers the right to self-administration on the Federal Supreme Court, not also on federal courts of first instance (Federal Criminal Court, Federal Administrative Court, Federal Patent Court), under the title “Position of the Federal Supreme Court”. Self-government is thus intended to strengthen the position of the Federal Supreme Court as the “supreme judicial authority of the Confederation”. It is thus on the same level as the Federal Council (government), i.e. the “supreme governing and executive authority of the Confederation”. Within the framework of the separation of powers, the Federal Supreme Court is a constitutional organ. The author again takes a look at Germany, where the Federal Constitutional Court is the only court with a right of self-administration comparable to the other constitutional organs, but where such right is not established by the constitution but by legislation. In Switzerland, the self-administration of the federal courts of first instance is regulated at the legislative level because they are not constitutional organs. Their self-administration is only constitutionally protected insofar as it serves the constitutional independence of the judiciary. Judicial self-administration may also be necessary for reasons of efficiency, because certain administrative tasks are more appropriately performed by the judicial body itself.
The transfer of administrative tasks for the judiciary from the government to the courts themselves entails changes in the courts’ relationship with the legislature. Before the revision of the Constitution, the government represented the budget of the Federal Supreme Court in Parliament. Under the new Federal Constitution, the Federal Supreme Court itself draws up its own budget and represents it in parliament; the government has no power to amend it. In addition to its own annual accounts and annual report, the Federal Supreme Court also represents the annual accounts and annual reports of the first instance courts of the Confederation in the parliamentary committees and in plenary session on the basis of the Parliament Act. In special situations, however, the responsible parliamentary committees may also hear other instances and, in particular, obtain information directly from the courts of first instance. The representation of the interests of the first instance courts of the Confederation by the Federal Supreme Court does not jeopardise the independence of the first instance judges and thus is not in conflict with the Constitution. The first instance courts, unlike the Federal Supreme Court, are not constitutional bodies in their own right. Moreover, the author considers it advisable for the federal courts to act as uniformly as possible vis-à-vis the other powers, which requires a certain leadership on the part of the Federal Supreme Court. It is not entirely clear whether the Federal Supreme Court can make modifications to the estimates and annual accounts of the courts of first instance. According to a statement of opinion by the Federal Office of Justice, it generally refrains from doing so. However, the author is of the opinion that the Federal Supreme Court is empowered to make modifications within the scope of its supervision. Unlike for the Federal Council, the law contains no prohibition, and it cannot have been the opinion of the legislature to make parliament the arbiter between the courts. In other administrative areas apart from finance, parliament only deals with the Federal Supreme Court within the framework of its supreme supervisory competence.
Finally, the author regrets that, contrary to Article 162 paragraph 4 of the Parliament Act, the parliament’s commissions do not always give the federal courts the opportunity to orally express their opinion in the commissions when legislation and decisions is being prepared affecting the powers, organization and administration of the courts, but limit themselves to obtaining a written opinion. Clearly excluded is a right of the Federal Supreme Court to submit motions in the proceedings of the two chambers of parliament. A legal clarification of the form of the Federal Supreme Court’s opinion vis-à-vis parliament would be welcome. According to the current practice of the parliamentary commissions, the self-administration to which the Federal Supreme Court is entitled as a constitutional body is not given sufficient weight in the legislative process.