The Power of Perspectives

The Canadian Bar Association

Kim Covert

Speaking out for judicial independence in Poland

August 28 2017 28 August 2017

Poland is becoming known as Europe’s problem child, with what one report calls a “worrying policy of polarization” that stems back to the election in 2015 of the Law and Justice party (PiS). Issues came to a boil this summer with a number of planned reforms that would have the effect of erasing judicial independence and give rise to the possibility of political influence on judicial decisions.

In July, the EU deemed those plans an amplification of a “systemic threat to the rule of law” in the country. It demanded that Poland “address these problems within one month,” failing which it was prepared to trigger Article 7, in which a member country’s EU voting rights are suspended.

Whether it was due to political unrest, international criticism or the EU’s threats, in July President Andrzej Duda vetoed two controversial bills – one that would have breached the Polish constitution by increasing the political influence on the council that recommends judicial appointments – thereby putting more power into the hands of the Justice Minister, who would have also been given the ability to promote trainee judges. The second bill was even more problematic, as it would have given the Justice Minister the ability to fire all the judges on the country’s Supreme Court and appoint their replacements.

Late in July the CBA wrote to Foreign Affairs Minister Chrystia Freeland urging her government “to call on Polish authorities to respect the independence of the judiciary as a fundamental aspect of democracy and international human rights.”

Noting that the CBA is a member of the International Bar Association, which had written to President Duda to express its concerns with the proposed reforms, the letter said, “The CBA and IBA share a deeply held conviction that a healthy democracy is founded on principles that include respect for the independence of the judiciary. Indeed the UN Basic Principles on the Independence of the Judiciary establish this as an international human rights standard.”

The letter says the CBA welcomes the Polish President’s decision to veto those two bills, but acknowledges that the situation “remains fluid” and asks that Canada leverage its “close bilateral relations” with the country to encourage reform that supports and independent judiciary.

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