Although President Andrzej Duda vetoed two legislative proposals last month that would have severely weakened the independence of the Polish judiciary, he did sign a third bill that gave the country’s Justice Minister the power to remove and replace the heads of the lower courts. That law went into effect this week, and the results are not promising.
The German media site Deutsche Welle reports on district judge Waldemar Zurek, a spokesman for Poland’s National Council for the Judiciary, who has been personally investigated by prosecutors on very flimsy grounds. According to the story, Zurek
fears his computer will be seized for the information and contacts it contains. “They’ve already looked at my phone records – without my permission,” he said, which Polish law allows. The threatening letters were just a pretext to monitor him, Zurek said.
Zurek states in the story that he assumes his public stance in favor of judicial independence will cost him his job soon. Will the Polish people stand for it?
I have previously discussed the candidacies of five Brooklyn residents who are running for judge, but refuse to go through the selection system dominated by Democratic Party bosses. In the latest twist in the story, a spokesman for the five candidates has accused local party boss Frank Seddio of hosting a “illegal” fundraiser for the party’s preferred candidates on August 23.
Surely some of this is an effort to stay in the news cycle, but the accusations of spokesman Gary Tilzer are still damning:
Seddio, an attorney, sent the red, white and blue invite to more than 185 people — including sitting judges, judicial candidates, attorneys, developers, politicians, lobbyists and members of the Judicial Screening Committee. The invite vaguely touts fund-raising “to support our contested countywide candidates.”
It doesn’t specify the candidates who will benefit or the election that’s involved.
Guests were instructed to write their $500 to $5,000 checks out to the Kings County Democratic County Committee, an account that’s controlled by the Brooklyn Democratic Party, and mail them to Seddio’s home address, according to the letter.
Tilzer’s three-page letter to the committees said Seddio’s fund-raising efforts violate the Rules Governing Judicial Conduct and are unethical on seven points, including not disclosing who the event benefits, inviting sitting judges to contribute and, since the beneficiaries aren’t named, having judicial candidates raising money with potential nonjudicial candidates.
As I have noted before, those who are truly concerned about the influence of money in politics might want to start by shining a light on local hornet’s nests like these.
In June, I flagged an interesting story of five judicial candidates in Brooklyn who are aggressively running against the Democratic Party machine. These candidates, led by John O’Hara (a lawyer with a colorful and checkered past), assert that the borough’s independent screening panel is really just an arm of the local Democratic Party, and subject to the wishes of party bosses. All but one of the insurgent candidates has refused to go before the panel .
With the primary about a month away, the New York Law Journal weighs in with an article that captures the essence of the insurgency, as well as the establishment position. The crux of their claims: the party asserts that the 24-member screening panel simply determines candidates’ fitness for the bench, and expects no quid pro quo for the candidates it deems qualified. The O’Hara group alleges that the panel is essentially a mechanism for attorney members to receive future favors from the candidates they endorse.
I generally favor screening panels or nominating commissions as part of a comprehensive judicial selection process. But this challenge makes clear that if the panel itself is not seen as legitimate, neither will the judicial candidates it endorses. And New York has a long and unfortunate history of party boss control over the selection of local judges. We’ll see how it plays out at the September 12 primary.
After last month’s major controversy over an unusual process used to select a judge to its Court of Appeal, the Irish government has returned to established procedures to select its newest Chief Justice, Frank Clarke. From the Irish Times:
The Government spokesman said the intention of the process was to “mirror the spirit” of new draft legislation governing judicial appointments, but “not to every detail”.
The Judicial Appointments Bill, which has been promoted by Mr Ross, will not become law until the autumn at the earliest.
Chief Justice Susan Denham is due to step down after six years as head of the judiciary, and 25 years on the Supreme Court, next month.
Previous coverage of the controversy here, here, here, and here.
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.
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”