In the wake of more than a week of protests, Polish President Andrzej Duda has vetoed legislation that would have given substantial control over the judiciary to the executive branch. Poland’s ruling Law and Justice Party shepherded the bills through both houses of the legislature late last week. From the CBC:
Duda said that the country’s justice system as it works now is in need of reform, but he said that the changes lawmakers had proposed threaten to create an oppressive system and that the protests of recent days show that the changes would divide society.
He said that there is no tradition in Poland for a prosecutor general to have such large powers and he would not agree to that now.
This is a victory for judicial independence, but it does not end the saga. Poland’s judiciary does need some modernizing, and we should expect some new, less drastic, legislation toward that end in the near future.
Previous coverage here, here, and here.
Three federal judges in Canada have been cleared of wrongdoing after they attended sponsored social events at an international tax conference in Spain. The Canadian Judicial Council concluded that concerns that the judges’ attendance compromised their impartiality were “unfounded.”
The judges themselves were more sanguine about the signal their attendance might have sent. Judge R.S. Bocock, for example, recused himself from a pending case involving one of the sponsors, even though he was unaware of the conflict at the time he attended the sponsored event. Bocock stated,
“I have reflected on this entire matter….The potential for a conflict of interest in this matter seems remote; however, through inadvertence, the portrayal of a potential conflict, where all the facts are at first unknown, is possible,” said Bocock, in a letter sent to the complainant.
“As such, there are consequences, costs, and reputational risks to the judge, the judiciary and the administration of justice as a whole. Prudence and best practice would suggest that, in future, refraining from attending such off site sponsored conference receptions is a better and wiser choice. I certainly intend to follow this prudent conduct in the future.”
Judges often have to straddle a line on social occasions so as to not appear to favoring a particular party or law firm. The appearance of impartiality is so important that most judges choose to avoid more social events than they rightfully should. But there is no easy solution. Justice Abe Fortas reportedly said that “Judging is a lonely job in which a man is, or near as may be, an island entire.” The phrasing is a bit stiff, but there is plainly some truth to the observation.
Yesterday, the lower house of the Polish legislature passed a highly controversial reform bill that gives the executive branch enormous power to select and remove judges, including the entire Supreme Court. The Polish senate is expected to approve the bill today, and President Andrzej Duda is expected to sign the bill shortly thereafter.
The bill has drawn criticism from both domestic and international circles, where it is widely seen as a threat to judicial independence and the rule of law. During the parliamentary debate, opposition leader Grzegorz Schetyna accused the ruling Law and Justice Party of “destroying Poles’ right to an independent court … destroying the foundations of freedom, of parliamentary democracy.” Thousands of people rallied against the bill in Warsaw last Monday, and another major protest took place yesterday. Now the European Union is threatening to strip Poland of its voting rights within that organization.
Law and Justice (PiS) has argued that the reforms are needed because the Polish judiciary continues to operate along communist-era lines, and ordinary citizens do not feel that “the system is on their side.” Critics see this justification as a naked power grab which effectively places all three branches of the Polish government under the control of a single party.
When arguments are clothed in the language of populism, it is often difficult to assess their accuracy and sincerity. I have no doubt that the Polish people are still scarred by two generations of communist rule, but a widespread judicial overhaul that consolidates power in the hands of a select few hardly seems like a serious effort to restore the judiciary to the people. This editorial underscores the point.
Still, I welcome anyone with a more intimate knowledge of Polish politics or this particular legislation to offer thoughts on the legislature’s motives in the comments.
State judicial elections sometimes produce extreme cases of court turnover, either because interest groups target a group of judges for removal (something I explore in this article), or because an election frenzy sweeps out all (or virtually all) judges affiliated with a certain party (something I explore in more detail here). Such rapid turnover has significant consequences for the courts: the loss of institutional memory, the learning curve for an entire set of new judges, and sometimes radical changes in court culture can all result from an election sweep.
But judicial appointment systems are not immune from significant turnover as well, especially if they are combined with mandatory retirement ages. In a much quieter and more incremental way, an entire generation of state judges can be replaced by a governor in the course of the few years. Massachusetts provides the most recent example: with yesterday’s confirmation of Scott Kafker to the state’s Supreme Judicial Court, Governor Charlie Baker has now appointed five of the court’s seven members.
Incremental change avoids many of the problems of party sweeps, and carries many direct benefits. New blood and new energy come into the system, and institutional memory is generally preserved. But the frequency of new state judicial appointments is often given little attention. For all the emphasis placed on a President’s ability to reshape the federal judiciary, it is worth remembering that mandatory retirement ages (which exist in all but three states) give governors or legislatures even more power to shape their respective state courts.
The New Jersey legislature will consider bills to prohibit publishing or posting the home addresses and phone numbers of state judges and prosecutors. Violating the prohibition would carry a potential 18-month prison sentence and a fine of $10,000. The bill also contemplates civil penalties.
The proposal comes amid increased awareness of direct threats to the judiciary. Just yesterday, a Florida man was arrested on multiple counts of threatening and stalking judges in Broward County. And the Texas legislature recently passed bills to beef up courthouse security and designate attacks on judges as hate crimes.
Several news outlets have reported on the protests yesterday regarding the Polish government’s proposed reform of the judiciary. Some examples of coverage can be found here, here, and here.
Meanwhile, Bloomberg News offers up a detailed analysis of the reform proposals here. I cannot speak for the credibility of the author, but it appears to be a useful read.
Several months’ worth of rumblings over the fate of the Polish judiciary came to a head this week when the country’s legislature debated a controversial judicial reform bill. Like the judicial crisis in Ireland that unfolded earlier this summer, the Polish controversy is worth unpacking and monitoring closely.
The reform bill discussed this week was shepherded through the legislature by the Law and Justice (PiS) Party, a populist, conservative party that has been in power since 2015. The bill would give legislators and the Justice Minister the power to appoint new judges without input from the judiciary. It would also create a new code of ethics for the country’s judges. A second bill would require all Supreme Court Justices to resign (unless permitted to stay by the Justice Minister), and new Justices appointed in their stead. The PiS leader, Jaroslaw Kaczynski, has justified the moves by saying that the country’s judiciary had not sufficiently reformed from its communist past, and that “radical changes” were needed.
Opposition leaders and other European observers have painted the bill as a power grab that would compromise judicial independence and threaten the rule of law, and have even asked for international oversight of the vote on the bill. On Sunday, thousands of protesters jammed the streets of Warsaw to protest the legislation.
What should observers make of this?
Continue reading “Populism, politics, and the Polish courts”