Poland’s democratic backsliding: A judiciary under siege
Country: Poland
Poland’s far-right Law and Justice Party (PiS) has used its absolute parliamentary majority to systematically undermine the independent judiciary. This campaign shows how politicization of the judiciary and judicial appointments—as is increasingly common in the United States—can pave the way for an authoritarian agenda and democratic decay.
Lessons:
For Poland’s elected government, control of the judiciary seems to be both an end in itself and a means toward greater authoritarian goals.
Polarization and intense political animosities—a desire to win at any cost—can make judicial politicization and delegitimization far more likely (as is becoming more common in the United States). This, in turn, can lead to authoritarianism and democratic decay.
When it comes to legal institutions, protecting norms of fairness and independence in the judiciary is just as important (if not more so) as maintaining specific rules or laws.
The October 2019 Polish parliamentary elections reasserted the political power of Poland’s right-wing party, Law and Justice (PiS - Prawo i Sprawiedliwość). Winning with nearly 44% of the vote — albeit now weakened without a senate majority -- PiS has retained its control of the legislature.
In 2015, the party won an absolute majority in Parliament. Shortly afterward, PiS embarked on a prolonged campaign of judicial reforms—ostensibly, in the words of Prime Minister Mateusz Morawiecki, to overhaul a “deeply flawed system [and expunge] ommunist-era judges.”[1]
To most international legal observers, however, the reforms are far from benign. They are a deliberate attack on an independent judiciary and a clear sign of authoritarian backsliding in Poland. According to Anne Applebaum, a Washington Post columnist and historian, the Polish government is “illegally dismantling its own constitution.”[2]
Polish judges are similarly concerned. A report on the state of court independence by the Association of Polish Judges (Iustitia) found that 90 percent of surveyed judges believe the rule of law is under threat, with 80 percent ranking the transparency of the Constitutional Tribunal as “very low” due to politicization.[3] According to Iustitia Chairman Krystian Murawiecki, “Politicians should be focused on politics, and judges on judging.”[4]
Indeed, by any standard the PiS campaign to control the judiciary has been relentless. First, it added three “extra” justices to the Constitutional Tribunal (equivalent to the U.S. Supreme Court). Then, it shortened term limits, with judges forced to retire at the age of 65 unless given permission at the discretion of the PiS President. The PiS also changed the process for judicial appointments from a nonpartisan commission of judges to a group of political appointees, and created new mechanisms for the government to initiate “disciplinary” action against judges.
According to Monika Nalepa, an associate professor at the University of Chicago, the result is essentially that PiS “may now choose both the prosecutor and the judge in every single court case.”[5]
Moreover, Nalepa asserts thatthe PiS obsession with the judiciary may have more ambitious and frightening goals. In the long-term, the reforms may help the party prevent adverse rulings on legislation from both the Constitutional Tribunal and lower courts (Poland’s constitution allows lower courts to interpret the constitution when the high court is unable to do so), limit the risk of the courts intervening in a disputed election, and even potentially bankrupt the opposition (the Constitutional Tribunal reviews and approves electoral expenditures). The Constitutional Tribunal was also paralyzed by a December 2015 law passed by PiS, which requires it to consider the backlog of cases in chronological order, intentionally debilitating efforts to check the PiS government.
The motivations also may be more personal. Controlling the judiciary could help annul the prison sentence of Mariusz Kaminski, a close associate of PiS leader Jarosław Kaczyński who was convicted in 2015 for abuses of power.[6] The party tried to pardon Kaminski after gaining control, only to be blocked by the Constitutional Tribunal.
PiS could even attempt to put opposition leaders on trial (including European Council President Donald Tusk) for the death of Kaczyński’s twin brother, who was killed in a plane crash in 2010 while serving as Poland’s president. Kaczyński and other PiS leaders believe the crash was orchestrated by Russia with Tusk’s cooperation, and is a part of a larger conspiracy to destroy Poland.[7] PiS has already tried to discredit Tusk (who may run for president of Poland in 2020) by using parliamentary powers to investigate him for alleged fraud.[8] Control of the courts would make the task much easier.
Ironically, Poland has heard this story before. Much of this partisan rancor and conspiracy theories originate from the bitter aftermath of Kaczyński’s parliamentary election defeat by Tusk and his Civic Platform party in 2007.[9] Tusk won in part by criticizing Kaczyński’s aggressive policies and tactics against his opponents, including through the courts.[10]
Because European Union (EU) member states are subject to EU laws regarding judicial independence, many of the reforms in Poland have been impeded for now by the European Court of Justice. Regardless, the rapid escalation of judicial politicization in Poland should cause concern about a similar trend in the United States.[11]
First, the intense and personal animosities behind the Polish power struggle exemplify the dangers of polarization. As Applebaum wrote in The Atlantic in 2018, Poland shows how the worst could be yet to come in the United States when it comes to all-out partisan warfare, conspiracy theories, obsession with loyalty, and democratic decay .[12] “Polarization is normal,” she writes. “Skepticism about liberal democracy is normal. And the appeal of authoritarianism is eternal.”[13]
Second, judicial independence is just as much about norms and trust as any specific institutional checks and balances. Some of the proposed reforms in Poland are either commonplace elsewhere (e.g., judges appointed by partisan actors as in the United States) or not unreasonable at face value (e.g., dismantling dictatorship-era judicial influences). Yet context and rhetoric matter immensely; the clear norm violations behind PiS’ reforms are inevitably damaging to the legitimacy of the Polish democracy.
Poland shows how the worst could be yet to come in the United States when it comes to all-out partisan warfare, conspiracy theories, obsession with loyalty, and democratic decay
The same is true for recent escalation of political attempts to control the judiciary in the United States. Senator Mitch McConnell’s refusal to hold Supreme Court confirmation hearings for Judge Merrick Garland in 2016 (and his admission he would confirm a Republican nominee under similar circumstances), while legal and constitutional, was a clear violation of norms—and one that is now likely to become commonplace.[14]
Once judicial independence has been compromised, true legitimacy is difficult, if not impossible, to rebuild. After all, the PiS campaign itself takes advantage of lingering voter doubts about judicial fairness and honesty dating from the Communist era. The United States has no such legacy and trust in the judiciary has historically been strong—assets that politicians should not be so quick to throw away in pursuit of a partisan agenda.
Recommended reading:
https://www.theatlantic.com/magazine/archive/2018/10/poland-polarization/568324/
https://www.theguardian.com/world/2016/feb/16/conspiracy-theorists-who-have-taken-over-poland
https://balkaninsight.com/2019/09/04/poland-on-front-line-of-europes-rule-of-law-battle/
End Notes:
[1] Mateusz Morawiecki, “Prime Minister Mateusz Morawiecki: Why My Government Is Reforming Poland’s Judiciary,” Washington Examiner, December 13, 2017, https://www.washingtonexaminer.com/prime-minister-mateusz-morawiecki-why-my-government-is-reforming-polands-judiciary.
[2] Anne Applebaum, “Poland Is Illegally Dismantling Its Own Constitution. Can the E.U. Do Anything? - The Washington Post,” The Washington Post, December 21, 2017, https://www.washingtonpost.com/opinions/global-opinions/poland-is-illegally-dismantling-its-own-constitution-can-the-eu-do-anything/2017/12/21/cc2f2234-e66f-11e7-ab50-621fe0588340_story.html.
[3] “Stan Niezależnego Sądownictwa w Polsce z Perspektywy Sędziów - Raport Iustitii,” accessed September 1, 2019, https://www.iustitia.pl/images/pliki/Raport_Iustitia.pdf
[4] “Iustitia składa projekt ustawy przewidujący powrót do orzekania sędziów z Min. Sprawiedliwości, odebranie Min. Sprawiedliwości prawa powoływania prezesów sądów i zmiany w KRS,” Stowarzyszenie Sędziów Polskich Iustitia, accessed September 1, 2019, https://www.iustitia.pl/nowa-krs-nowy-sn/3273-iustitia-sklada-projekt-ustawy-przewidujacy-powrot-do-orzekania-sedziow-z-min-sprawiedliwosci-odebranie-min-sprawiedliwosci-prawa-powolywania-prezesow-sadow-i-zmiany-w-krs.
[5] Monika Nalepa, “The Attack on Poland’s Judicial Independence Goes Deeper than You May Think. Here Are 5 Things to Know. - The Washington Post,” The Washington Post, July 23, 2017, https://www.washingtonpost.com/news/monkey-cage/wp/2017/07/23/the-attack-on-polands-judicial-independence-goes-deeper-than-you-think-here-are-5-things-to-know/.
[6] “Anti-Corruption Chief Abused Power, Court Rules,” Polskie Radio dla Zagranicy, March 30, 2015, http://archiwum.thenews.pl/1/9/Artykul/201962,Anticorruption-chief-abused-power-court-rules.
[7] Matthew Day, “Donald Tusk Testifies at Trial in Poland Involving Death of Former President in Plane Crash,” The Telegraph, April 23, 2018, https://www.telegraph.co.uk/news/2018/04/23/donald-tusk-testifies-trial-poland-involving-death-former-president/.
[8] Michal Broniatowski, “Tusk grilled by Polish MPs in Pyramid Scheme Probe.” Politico, November 5, 2018, https://www.politico.eu/article/donald-tusk-grilled-by-polish-parliament-committee/.
[9] Andrew Purvis. “A New Government for Poland.” Time, October 22, 2007, http://content.time.com/time/world/article/0,8599,1674239,00.html.
[10]Ian Traynor. “Opposition triumph in Polish election,” The Guardian, October 22, 2007, https://www.theguardian.com/world/2007/oct/22/poland1.
[11] James Shotter, “Poland’s Judicial Overhaul Broke EU Law, Rules ECJ,” Financial Times, June 24, 2019, https://www.ft.com/content/cf9e9280-9684-11e9-9573-ee5cbb98ed36.
[12] Anne Applebaum, “A Warning From Europe: The Worst Is Yet to Come,” The Atlantic, October 2018, https://www.theatlantic.com/magazine/archive/2018/10/poland-polarization/568324/.
[13] Anne Applebaum, “A Warning From Europe: The Worst Is Yet to Come,” The Atlantic, October 2018, https://www.theatlantic.com/magazine/archive/2018/10/poland-polarization/568324/.
[14] Matthew Choi, “McConnell: Republicans Would Confirm a Justice during 2020 Election - POLITICO,” POLITICO, May 28, 2019, https://www.politico.com/story/2019/05/28/mitch-mcconnell-supreme-court-1346094.
[15] Jan Cienski and Zosia Wanat. “Poland’s PiS Wins Elections, but its grip on power is weakened,” Politico, October 13, 2019,
https://www.politico.eu/article/polands-pis-wins-parliamentary-election/
