EU sues Poland over 2019 judicial law

Poland’s ruling Law and Justice Party (PiS) has been working assiduously to forge a politically subservient judiciary since 2017, when it first passed legislation to purge certain judges and install others favorable to its policies. These policies have been regularly condemned by Poland’s neighbors, and have already led to lawsuits. Now the EU is taking the next step: suing the Polish state in the European Court of Justice, arguing that the most recent round of changes to the Polish legal system undermine judicial independence.

Deutsche Welle explains:

At issue is the Polish law affecting the judiciary that came into force in February last year.

It prevents judges from referring questions of law to the ECJ. It also created a body that rules on judges’ independence without regard to EU law.

The bill also oversaw the creation of a “disciplinary chamber” to oversee Polish supreme court judges. This chamber — criticized for its close ties to the government — has the power to lift their immunity, allowing for judges to face criminal proceedings or cuts to their salaries.

One judge, Igor Tuleya, faced suspension and a 25% salary cut in November. He was among the justices to resist the changes to the legal system.

The Commission wants the ECJ to suspend the 2019 law as well as the disciplinary chamber and the decisions it has made concerning judges’ immunity, “to prevent the aggravation of serious and irreparable harm inflicted to judicial independence and the EU legal order.”

Poland has denied any breach of judicial independence, and challenges the EU’s power to regulate its internal judicial affairs.

Another chapter in a distressing saga.

Tillman on transparency of court records in Ireland

My law school classmate Seth Barrett Tillman, who has become a prominent voice in the legal academy on both sides of the Atlantic, has proposed a series of transparency reforms for the Irish courts.

The proposal includes open access to the parties’ briefs and filings, and a searchable database of notices of appeal.

These are worthwhile ideas, and demonstrate how a relatively modest investment in technology can pay significant dividends for access to justice and public confidence in the courts.

Taiwanese groups call for reforms to combat judicial corruption

In the wake of a major corruption scandal involving more than 200 members of Tiawan’s judiciary, legal reformers are pressing for signficiant changes to the legal system, including the abolition of life tenure for judges and the introduction of jury trials in criminal cases. According to the Taipei Times:

Attorney Chang Ching (張靜), who previously worked as a judge and prosecutor, said that he hoped the ministry and Judicial Yuan would take this opportunity to reflect on themselves “and make real changes” to fix problems revealed in the case.

“If they do not, Taiwanese will no longer have faith in the justice system, nor will they expect to have true judicial reform,” Chang said.

Officials have promised a more complete investigation of the corruption scandal, addressing gaps in their original report.

Afghan Supreme Court Justices assassinated in Kabul

Two Justices of the Supreme Court of Afghanistan were murdered by gunmen on Sunday while driving to work. The identity of the Justices has not been revealed, but reports suggest that both were women.

The Taliban denied responsibility for the attack, notwithstanding its pledge to continue “eliminating” government officials and other prominent figures. The Afghan government and the Taliban are currently engaged in peace talks (such as they are) in Doha, Qatar.

Concerns about India’s judiciary remain unresolved

Almost three years ago, four justices of India’s highest court held a press conference to publicly air concerns about the administration of justice in that country. The press conference made international news, but it appears that it has not catalyzed significant change. At least, that it the view of this op-ed:

It appeared to have been alleged that in certain important matters the allocation of cases was done in a manner that could lead to desired outcomes.

If true, this was a profoundly serious charge.

There has been no change in this and the allocation is still being done by the Chief Justice at his own sweet will with no rational or transparent method.

There is still no transparency in the selection of judges.

The press conference by the judges was a historic first in the history of the judiciary anywhere in the world. It yielded no result and got reduced to a mere publicity event.

I wonder if this will get new traction in the coming year.

Chief Justice of Ireland refuses pay raise

Chief Justice Frank Clarke, Ireland’s seniormost judge, will not be accepting the €5,200 (approximately $6,300) annual pay raise afforded to him by that country’s government. The Irish Independent explains that “The move is understood to have been a personal gesture by Mr Justice Clarke in recognition of the economic hardship caused by the pandemic. However, the disclosure is likely to put pressure on colleagues to signal a willingness to do likewise.”

The Irish government approved pay raises for all the country’s judges, as well as other government officials. The pay raises come wrapped in controversy, as the government has simultaneously refused to pay student nurses on the frontlines of the pandemic. The circumstances certainly create an awkward situation for judges, who presumably would like to take the pay hike but also want to avoid public blowback.

Posturing and gamesmanship in Israeli judicial appointments

In October, I pointed out the childish posturing of Senate Democrats, who boycotted the Judiciary Committee’s confirmation vote for Justice Amy Coney Barrett and sent cardboard cutouts in their place. The stunt made a mockery of one of the Senate’s core responsibilities, and I suspect that it played at least a small role in the Democrats’ poor showing in November’s legislative races.

Unfortunately, such spectacles are not limited to the United States. Earlier this week, three right-leaning Israeli lawmakers boycotted the meeting of that country’s Judicial Appointments Committee, evidently believing that their absence would prevent a quorum and preclude the Committee from appointing two Israeli Arabs to judicial positions.

They were wrong. The law allows the committee to meet with any number of members present, as long as there are at least seven members on the committee roster. Because the boycotting politicians never resigned from the committee, the committee had the requisite number of members to move forward even in their absence. Ultimately, the committee appointed 61 judges, include one of the Arab candidates.

If there are good reasons to oppose a judicial nominee, by all means politicians should vote to oppose. But preventing the wheels of government from operating purely for partisan gain harms the judiciary and insults the public.

Rwanda ends recruitment exams for judges

The Rwandan government has changed its system for recuiting judges, ending the practice of requiring judicial candidates to pass specific recuitment exams. Instead, judges will now be political appointees. Under the lew legislation:

judges shall instead be appointed by the High Council of the Judiciary upon recommendation by the Bureau of the Judiciary.

They will be appointed based on their integrity, expertise and excellence they are known of in their career, and in their normal private life, other than gauging their capacity on their level of passing recruitment tests.

I don’t pretend to know enough about Rwanda’s political or judicial system to opine on the motivations for the change. But if a state that traditionally has employed a career judiciary –with testing and training up of young judges up front — suddenly moves to a system of politically appointing judges as a capstone to their legal careers, it’s certainly noteworthy.

Oh, Canada! Lawsuit alleges that country’s method of selecting federal judges is unconstitutional

The Canadian nonprofit Democracy Watch has filed a new lawsuit in federal court in Toronto, alleging that the country’s method of choosing federal judges violates the Canadian Constitution. Specifically, Democracy Watch claims that the process consolidates too much power in the hands of the Minister of Justice and Attorney General of Canada, a single cabinet position which is politically appointed.

Under the current appointment process, provincial advisory committees (most of whose members are appointed by the justice minister) submit to the justice minister a list of candidates for each judicial opening. The justice minister then consults with other cabinet members and members of Parliament from the governing party. After consultation, the justice minister has the final choice for appointment.

This certainly sounds like the justice minister has enormous leverage, especially since there is no obligation to consult with opposing parties or to seek out views from outside the minister’s inner circle. In this respect, the process may preclude outstanding candidates from being considered, and therefore may have an effect on the overall quality of the judiciary. Whether this is truly a constitutional problem or merely a policy one, I cannot say. But the case will be worth following, both for the ultimate result and for how Canadian federal judges address delicate questions regarding the constitutionality of their own appointments.

Scotland will hold jury trials in movie theaters

Courts across the world are continuing to think creatively in light of the ongoing COVID-19 pandemic. Some Scottish courts will now be holding socially distanced jury trials in movie theaters, where the 15-person juries can spread out, watch the presentation of testimony and evidence on the big screen, and then deliberate in person.

This follows similar efforts in the UK and US to use large open spaces for trials, including fairgrounds and convention centers. While we all look forward to the day when trials are back in a proper courtroom, the efforts to keep the wheels of justice turning are surely praiseworthy.