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“There were never any problems”: Opponents of government oversight*, government buildings

A well-known cross-party committee in Basel-Landschaft is campaigning for a no to the law on the Code of Criminal Procedure

From Peter Knechtli

The introductory law on the Code of Criminal Procedure, which will be voted on in Basel-Landschaft on May 17, is facing strong criticism: a prominent cross-party committee is fighting against the government being given responsibility for overseeing the new public prosecutor's office, which it says violates the separation of powers.

At first glance, it seems like a boring voting matter: the introductory law to the Federal Code of Criminal Procedure (StPO). But at its core, it is about a controversial issue: is it right that the cantonal government is entrusted with the supervision of the public prosecutor's office?

Sabine Pegoraro on thin FDP ice

This question is the subject of unusually fierce debate in the Basel region. The district council voted narrowly in favor of government supervision at the request of the CVP, with 44 votes to 38, after half of the FDP faction had “tipped over.” However, a significant portion of the Liberals reject the government as a supervisory body. FDP security director Sabine Pegoraro was only just able to convince her party base of her supervisory concept: the FDP's yes vote for the law and the necessary constitutional article was only passed by a razor-thin majority. Minus the solidarity bonus (“we cannot leave our government councilor out in the cold”), it can be assumed that a majority of the Liberals objectively reject the government as a supervisory body of the public prosecutor's office.

The most prominent spokesman against the bill is Peter Meier, former cantonal court president and long-time FDP strategist. He is now also a member of a cross-party committee called “Stop StPO”, which is opposing the law and constitutional articles. In addition to numerous members from the left-green and partly from the bourgeois camp, it also includes well-known personalities from the field of criminal prosecution – such as cantonal court president Andreas Brunner, procedural court president Regina Schaub, CVP Oberbaselbiet president Georg Gremmelspacher, the incumbent governor (investigating judge) of Waldenburg, Christoph Gysin, the former deputy investigating judge of Liestal, Albert Augustin, judicial administrator Martin Leber and the former Oberwil mayor Rudolf Mohler (FDP).

The committee, which presented itself at a media conference this Tuesday morning, currently has around 70 members. According to the committee, behind the scenes, key members of the CVP and SVP are also opposing the proposal.

Fears of government interference in the judiciary

Former cantonal court president Peter Meier, who described the committee as “representing the position of the FDP Switzerland”, warned of concerns “about the proper functioning of the rule of law”: This law is “wrong, unacceptable and dangerous to the rule of law”, and conflicts are “inevitable”. The government must “act expediently”, while the public prosecutor's office must “follow the principles of justice”. They must therefore also be supervised by the cantonal court, as the government had already proposed in 2001 for the supervision of the Special Investigating Judge's Office (BUR). This solution, according to Meier, has proven itself all round.

What's interesting is that the government was supported at the time by the spokesperson for the FDP parliamentary group, District Administrator Sabine Pegoraro. Now the government wants to take over supervision itself, which could lead to the executive branch interfering in the judiciary. This is exactly what is happening with the current draft law.

Criticism of “shared supervision”

Meier further stated that the government could not perform the supervisory function for technical and personnel reasons. Instead, it must delegate this task to a specialist commission. This reintroduced “separate supervision”, which the district administrator expressly wanted to abolish in the course of the 2002 reform due to the desolate conditions in the Arlesheim governor's office and partly also in the BUR. Until March 31, 2002, supervision of the governor's offices and the BUR was carried out administratively by the government and technically by the then transfer authority and later by the procedural court. Meier: “Shared supervision is the devil. It gets out of hand at some point and then you can reorganize again.”

The long-serving judge raised the question of whether the government's main concern was “to gain insight into criminal investigations”. The new public prosecutor's office has “significant judicial tasks”: Compared to the current system, around 24,000 penal orders are issued each year with the power to punish up to six months in prison.

“Rules against abuse of power necessary”

The Green District Administrator Klaus Kirchmayr (“good rules against abuse of power are appropriate”) described the parliamentary decision-making process in which the Justice Commission, at the request of the Greens, proposed an independent public prosecutor’s council as a supervisory body, which the District Administrator then rejected. According to Kirchmayr, the reason: an unfair and one-sided commission report and a “partial blind obedience of individual FDP district administrators”. It was also strange that Councilor Pegoraro “made a passionate plea against subordination to the government as a district administrator in 2001”. Kirchmayr warned of a “possible abuse of power”: By subordinating the public prosecutor’s office to the government, “the government and its senior officials are ‘more equal’ before the law than other citizens”.

Waldenburg governor Christoph Gysin spoke of a “complex reorganization” in the case of government supervision. His conclusion: “It cannot be the case that a new supervisory structure is created after an existing one has already proven itself and functions smoothly.” For this reason, the government and district administrator “deliberately kept quiet” about the costs of the new supervisory arrangements. In addition, the previous locations of the governor's offices and the new offices of the public prosecutor's office are “no longer guaranteed”: They could be “removed from one day to the next with a stroke of the government or district administrator's pen.”

Self-censorship for prosecutors

Gysin also gave his explanation as to why the numerous employees of the governor's offices and the public prosecutor's office have not yet made any public statements on the planned supervisory regulation: This could “inevitably lead to possible consequences in view of a possible subordination” to the government.

In her opening statement, District Administrator Regula Meschberger (SP) explained that this law was about questioning the separation of powers and thus also about the fundamental democratic question of “what distinguishes the constitutional state from the unjust state”. According to committee coordinator and SP District Administrator Ruedi Brassel, the committee will lead the fight against the law and constitutional article with two “Facebook” groups, among other things.

* from left: Peter Meier, Christoph Gysin, Regula Meschberger, Klaus Kirchmayr, Ruedi Brassel this Tuesday morning in Liestal

Comment by Peter Knechtli

28 April 2009

Further links:

The 150-member public prosecutor's office

Negative examples

“A problem with judicial independence”

The public prosecutor represents the state's right to impose punishment; it is a party and not a judge. Its task is no less political than that of the tax administration or the building inspector. No one would think of placing these authorities under the jurisdiction of the judiciary, although government influence on individual tax assessments or building permits is just as sensitive. But exercising supervision means taking responsibility. A cantonal court that is also responsible for prosecution is as independent as it was in the days of the Inquisition. The cantonal court certainly distinguishes between the administration of justice and criminal cases, but this shows that there is already a problem with judicial independence in the current supervision of the public prosecutor and the BUR.

Matthias HäuptliBasel

“Do we want to go back to the situation before 2002?”

Dear Thomas Weber, I know that the SVP prefers to give all power to the government. A stronger state should ensure peace and order. In our Swiss tradition, however, democracy and the rule of law mean a balance between the three branches of government. Many cantons are therefore trying to professionalize the structures of parliament and the judiciary. We in Basel-Landschaft have taken on a pioneering role in the area of ​​the third branch of government. Do we really want to go back to the way things were before 2002? There can be no talk of a creeping increase in power; it is simply a matter of stabilizing the balance that has been achieved. Therefore, two no votes on May 17, 2009.

Martin LeberFDP municipal councillor and justice administrator of the canton of Basel-Landschaft, Sissach

“Gradual increase in the power of the judicial authorities”

Unfortunately, some judicial authorities increasingly see themselves as superiors to the other two branches of government. In my opinion, separation of powers means that the legislative, executive and judicial branches all play an equally important and as independent a role in the state as possible. In a direct democracy, the highest control function belongs to the sovereign, i.e. the people who are entitled to vote.

The widespread unease with the arguments of the “Stop StPO” committee is based on the weak democratic support of the creeping increase in power of the judicial authorities at the expense of the organs of the other branches of government.

Thomas WeberBuus

“This structure is a scandal”

The second branch of government should monitor the third branch of government? Anyone who makes such demands has either never found the path of solid separation of powers or has completely abandoned it. Neither has anything to do with the classic constitutional state. All in all: the proposed structure is a scandal! We thank the former President of the Cantonal Court, Peter Meier, for his commitment.

Patrick C. FriedlinBasel