Poland’s Judiciary Under Illiberal Democracy
By ENRIQUE PEREZ | August 4, 2017
Since the assumption of power by Poland’s Law and Justice, a political party characterized by conservative-populist policies and fierce anti-communism, the independence of the country’s judiciary has slowly been eroded. The factors causing and enabling this are threefold: Law and Justice’s majority control of the Polish legislature, the majority of appointees within the judiciary being from the previous government, and a level of popular support within the population hindering resistance.
These moves are both expected and unexpected.
Expected in the sense that Law and Justice or Prawo i Sprawiedliwość (PiS) fits the pattern of authoritarianism exhibited by other populist-conservative parties such as Fidesz of Hungary and AKP of Turkey. Unexpected in that it is surprising that it could happen in Poland, one of the Eastern Bloc states touted as a successful example of post-Communist democratization.
Originating as the political project of Lech and Jaroslaw Kaczynski, twins famous for activism within the dissident Solidarnosc movement of Communist Poland, PiS achieved their first government via coalition in 2005. The party distinguished itself in the political scene with fervent nationalism and an obsession with purging the state of ex-Communist liberal elites, thereby creating a “Fourth Republic”. Said coalition became undone only two years later when a key partner party, Samoobrona, was rocked by a corruption scandal. The short-lived administration typified many of the key characteristics of PiS: skepticism towards the European Union, swift replacement of civil servants and regional governors with party loyalists, and authoritarian curbing of the opposition with ungrounded corruption investigations and state surveillance.
Despite electoral defeat in 2007, the party proved incredibly malleable and overcame Civic Order in 2015 against the odds. The Civic Order administration enjoyed in its rule a 24% increase in Poland’s GDP, reduction of unemployment into the single digits, and low inflation, a formidable record that could have sustained its rule for longer than 8 years. However, the anti-establishment mood amongst the electorate, support from the Catholic church, belief in extensive yet non-existent corruption in government, and low enthusiasm returned PiS to power. Strengthening the mandate was the fact that PiS obtained the first outright majority government since the fall of Communism. Support continues today, the most recent polls showing the ruling party’s persistent lead, in spite of dips, in the face of a divided liberal opposition.
The victory in the Sejm went hand in hand with the capture of the Presidency by PiS candidate Andrzej Duda just months prior. This meant that the remaining check on the new government’s power was the Constitutional Tribunal, a group capable of deeming any piece of their legislative agenda unconstitutional. While Civic Order did attempt to quickly fill the Court’s five vacancies with its own appointees just before the election, three of them were deemed legitimate by the CT. However, President Duda refused to swear in these judges and instead swore in five candidates selected by PiS. A constitutional crisis then occurred over most of 2016 as the Sejm attempted to curb the powers of the CT while the CT declared them legally invalid.
Examples of this curbing were laws passed in March designed to amplify the power of the PiS judges. Rulings for the most important cases were made to require thirteen judges instead of nine for quorum. Another law stipulated that rulings had to be decided by a two-thirds majority. Pressure from enacting these controversial measures caused the government by July to remove the latter law and reduce the quorum requirement to eleven, but it followed up with another law allowing just four judges to postpones cases for up to six months. In addition, by December the term for the CT’s president, Andrzej Rzepliński, was to end. To capitalize on this, the government passed yet another law that gave it the power to appoint a temporary replacement. The new interim president, Julia Przyłębska, accepted PiS’ candidates into the CT. This, combined with the retirement of Andrzej Wrobel and Stanisław Biernat’s term ending reduced the non-PiS judges to a minority within the court.
Not content with this victory, PiS is currently drafting a law allowing for even further control of the judiciary. The National Judiciary Council, selector of judges for Polish courts, will have its members now nominated by the Sejm. The Supreme Court will be completely replaced and regional and appeal courts now full under the purview of the PiS appointed justice minister. The professed rationale for this, as it was with the Constitutional Tribunal, is that the judiciary had been under the control of elites with explicit ties to the prior Communist regime. In truth however, it is more likely that a neutered judiciary allows the government to advance its agenda in expanding surveillance, restricting the right of protest, or pacifying the media.
The actions of PiS in Poland demonstrate that the liberal-democratic order in Europe is more fragile than it is contemporaneously perceived. The Polish Supreme Court determines the validity of any parliamentary election in Poland and the threat of one-party rule now looms. Even if PiS were to lose the next election, the damage done to Poland’s legislative branch will make it easy for the next ruling party to abuse state power. If it can happen it what a scant two years ago was a healthy democracy, it can happen anywhere. One can only hope Poland comes to its senses soon.