Category Archives: Poland

Aleks Szczerbiak – Poland: How will relations between President and ruling party develop?

This is a guest post by Aleks Szczerbiak, Professor of Politics and Contemporary European Studies at the University of Sussex. An earlier version appeared on his blog.

Aleks Szczerbiak

The Polish President’s decision to veto the government’s flagship judicial reforms was part of a broader move for greater autonomy from the ruling party. He clearly gains from highlighting his independence, while focusing public attention on debates within the governing camp also marginalises Poland’s weak opposition. But conflicting ambitions and emotions could make it difficult to contain competition between the President and ruling party within manageable boundaries.

Unexpected judicial reform vetoes

Although he was elected as candidate of the ruling right-wing Law and Justice (PiS) party, at the end of July, in a dramatic and surprising move, Polish President Andrzej Duda vetoed two controversial laws overhauling the country’s Supreme Court and National Judicial Council (KRS) that would have given the government significant new powers in appointing and dismissing judges. Overturning a presidential veto requires a three-fifths majority in the Sejm, the more powerful lower house of the Polish parliament, where Law and Justice only has a simple majority.

Mr Duda’s unexpected move came after the ruling party’s judicial reform proposals triggered one of the country’s sharpest political conflicts in recent years. Most of the legal establishment and opposition – led by the centrist Civic Platform (PO), Poland’s governing party between 2007-15 and now the main opposition grouping, and smaller liberal ‘Modern’ (Nowoczesna) party – strongly criticised the legislation. Warning of a drift towards authoritarian rule, they argued that the reforms undermined the constitutional separation of powers and would allow Law and Justice to pack the courts with its own, hand-picked nominees. As a consequence, there were nationwide protests in dozens of Polish towns and cities. The reforms were also heavily criticised by the European Commission which warned that it was ready to take action against Poland under the so-called Article 7 procedure, which it can invoke against EU member states where it feels there is a ‘systemic threat’ to democracy and the rule of law, if any Supreme Court judges were dismissed.

The government’s supporters, on the other hand, said that the reforms were needed to make the judiciary more accountable and ensure that it served all Poles and not just the elites, arguing that Polish courts were too slow, inefficient and tolerated frequent irregularities. Law and Justice believes that, following the country’s flawed transition to democracy in 1989, the Polish judiciary, like many key institutions, was expropriated by a well-entrenched, and often deeply corrupt, post-communist elite, which then co-opted a new legal establishment that perpetuated its legacy. The judicial elite was out of touch with ordinary citizens and operated as a ‘state within a state’ incapable of reforming itself. In these circumstances, they said, allowing elected political bodies a greater say in the functioning of the courts and appointment of judges was justified, and simply brought Poland more into line with practices in other established Western democracies.

Mr Duda’s counter-proposals

Last month, Mr Duda presented his own versions of the two vetoed laws. The original Law and Justice law to reform the National Judicial Council involved ending the terms of 15 of its 25 members and selecting their successors by a simple majority in the Sejm rather than by judges’ organisations as was the case up until now. In Mr Duda’s new draft, the majority of the Council would still be nominated by parliament but he repeated his earlier condition that they be elected by a three-fifths majority. In fact, Law and Justice had already accepted this proposal as an amendment to its earlier Supreme Court reform bill, even though it would have forced the party to negotiate Council appointments with opposition and independent deputies.

However, Mr Duda also proposed a further requirement that if, during a two month period, lawmakers could not muster the three-fifths majority then the President would have the right to select the Council members himself from among those considered by parliament. When it quickly became clear that Civic Platform and ‘Modern’ would not support the constitutional amendment required to enact this proposal, Mr Duda proposed instead that a new vote should take place to break the deadlock with each Sejm deputy only able to vote for one candidate, which would also ensure that some opposition nominees were elected. Government supporters are concerned that this will not guarantee a clear ‘pro-reform’ majority within the Council and want the final decision to be taken by a three-fifths vote in the Senate, Poland’s second parliamentary chamber where Law and Justice holds 64 out of 100 seats.

The other Law and Justice-sponsored law required all current Supreme Court members to stand down except for those re-instated by the President but only from a list approved by the justice minister, with future candidates appointed in the same way. Mr Duda proposed instead that Supreme Court judges would retire at the age of 65 with the President deciding if their term could be extended. If introduced, Mr Duda’s plan would mean that around 40% of the current Supreme Court judges would have to stand down – including its president and harsh critic of the government’s reforms Małgorzata Gersdorf, who turns 65 in November – with the rest due to retire within the next three years.

Distancing himself from the ruling party

In fact, Mr Duda has, from the outset, struggled to carve out an independent role for himself and the vetoes were the culmination of tensions between the government and a President who was tired of being side-lined. His opponents had dismissed Mr Duda as Law and Justice’s ‘notary’ as he (publicly at least) supported virtually all of its key decisions, even the most controversial ones. However, earlier this year Mr Duda dismissed his chief of staff Małgorzata Sadurska, who was felt to be too closely aligned with the Law and Justice leadership. Then, without consulting the ruling party, in May the President announced that he was initiating a national debate on whether to change Poland’s 20-year-old Constitution culminating in a consultative referendum in November 2018, the one hundredth anniversary of the restoration of Polish sovereignty at the end of the First World War.

In July, the President also vetoed a law extending the supervisory powers of regional audit chambers to give the government greater oversight over Poland’s 16 regional authorities, all but one of which are controlled by opposition parties. Then, in August Mr Duda – who, as head of state, is also commander-in-chief of the Polish armed forces – refused to approve the appointment of dozens of generals, reflecting ongoing tensions between the President and defence minister Antoni Macierewicz who had earlier blocked a key presidential military aide’s access to classified information.

Mr Duda’s knows that in order to secure re-election in 2020 he will need to attract support beyond the Law and Justice hard core and his decision to veto the government’s judicial reforms was not, therefore, a one-off but part of a broader move by the President to develop greater autonomy and independence from the ruling party. Voters appear to approve of this: surveys conducted by the CBOS polling agency last month found that Mr Duda enjoyed a 74% approval rating, easily the highest of any Polish politician, while 68% were satisfied with the way that he was performing his presidential duties; a sharp increase from 60% and 55% respectively in July.

‘Good change’ or ‘revolutionary change’?

However, by putting himself at odds with the ruling party, Mr Duda’s decision to veto Law and Justice’s flagship judicial reform laws was clearly a major turning point for his presidency and has introduced a new and unpredictable element into Polish politics. Demonstrating that he could act independently of Law and Justice leader Jarosław Kaczyński – Poland’s most powerful politician who, although he does not hold any formal state positions, exercises a powerful behind-the-scenes influence in determining the government’s programmatic and strategic priorities – Mr Duda is trying to completely re-define his presidency and carve out an alternative power centre within the governing camp which the Law and Justice leader has to negotiate with to secure the passage of the government’s legislative programme.

Indeed, the judicial reform crisis has highlighted some of the structural weaknesses within the governing camp. Given that the President’s most significant constitutional powers are negative ones, blocking nominations and legislation, some tensions between any government and all but the most passive head of state are almost inevitable. However, while Mr Kaczyński’s position as undisputed Law and Justice leader has given the governing camp a sense of unity and stability, it has also led to a reluctance to grant Mr Duda any real autonomy for fear that this would encourage the formation of rival power centres. This meant that when Mr Duda eventually tried to develop a more independent role for himself Mr Kaczyński and the Law and Justice leadership saw this as undermining the cohesiveness of the governing camp.

In fact, although Mr Kaczyński can at times be overbearing he is also deeply pragmatic and knows that entering into an ongoing, open conflict with the President would put his long-term political project of radically reconstructing the Polish state at risk. Mr Duda is also a much less experienced politician and lacks any real independent power base within the governing camp which remains overwhelmingly loyal to Mr Kaczyński. Moreover, although some government supporters, notably allies of justice minister Zbigniew Ziobro, question the President’s commitment to the party’s programme of so-called ‘good change’ (dobra zmiana), talk of a new centre-right ‘presidential party’ is fanciful at this stage.

Indeed, Mr Duda does not want to damage, or even significantly weaken, the ruling party whose support he needs to secure his short-term political objectives (his constitutional referendum proposal will, for example, require the approval of the Senate) and longer-term re-election prospects. Indeed, the President argues that he shares the government’s broad objectives but simply disagrees about the best means of achieving them and, in some cases, how radical the reforms should be; favouring, as he puts it, ‘good change’ over ‘revolutionary change’. In terms of judicial reform, for example, Mr Duda’s proposals represent certain adjustments to, rather than a radical departure from, Law and Justice’s original plans. In other words, Mr Duda wants the Law and Justice leadership to pay more attention to his interests and develop its reforms in a more consensual way.

Containing divisions will be difficult

Mr Duda and the ruling party, therefore, have to maintain a careful balancing act. Although the President risks losing part of his political base and cannot achieve anything substantial if he moves too far away from the ruling party’s orbit, he clearly gains from highlighting his independence and autonomy. Focusing public attention on debates within the governing camp also marginalises Poland’s weak and ineffective opposition. In the case of judicial reform, for example, Mr Duda’s actions not only defused tensions and de-mobilised mass protests in the short-term, they also shifted debate onto what form the reforms should take rather than whether they should be undertaken at all. This is one of the factors explaining why public support for Law and Justice has actually increased over the last couple of months: the ‘Pooling the Poles’ micro-blog that aggregates voting intention surveys shows Law and Justice enjoying 42% support compared with only 22% for Civic Platform and only 9% for ‘Modern’.

However, although open hostility would be suicidal for all concerned, conflicting political ambitions and emotions could make it very difficult to keep political competition between the presidential camp and ruling party within manageable boundaries. Mr Duda’s vetoes were clearly a watershed and if Law and Justice and the President cannot develop an effective working relationship then the remainder of the current parliament could see ongoing political conflict, mutual recriminations and, at worst, the implosion of the governing camp. The next few weeks are likely to be crucial in determining whether this model of contained and managed political competition between its two most important elements can be sustained.

Poland – How will President Duda’s judicial reform vetoes affect Polish politics?

This is a guest post by Aleks Szczerbiak, Professor of Politics and Contemporary European Studies at the University of Sussex. An earlier version appeared on his blog.

Aleks Szczerbiak

Earlier this summer Poland’s President shook up the political scene when he vetoed two of the right-wing government’s flagship judicial reform bills, which had triggered one of the country’s sharpest political conflicts in recent years. By carving out an alternative power centre within the governing camp it gives him an opportunity to re-define his presidency, but having taken ownership of the issue he is now under intense pressure to deliver on judicial reform.

Judicial reform is a government priority

Poland’s ruling right-wing Law and Justice (PiS) party believes that, following the country’s flawed transition to democracy in 1989, the Polish judiciary, like many key institutions, was expropriated by a well-entrenched, and often deeply corrupt, post-communist elite, which went on to co-opt a new legal establishment that perpetuated its legacy. Judicial reform is, therefore, one of the most important elements of the party’s programme. To this end, the government proposed three key bills aimed at overhauling the country’s legal system. The first involved phasing out the terms of 15 of the 25 members of the National Judicial Council (KRS), a body that selects judges and decides how the courts are run, and selecting their successors by parliament rather than the legal profession as has been the case up until now. The government’s original proposal envisaged these new Council members being elected by a simple parliamentary majority, but was amended to three-fifths following pressure from Law and Justice-backed President Andrzej Duda, a move which would have forced the ruling party to negotiate the appointments with opposition and independent deputies.

A second bill changed the way that the heads of lower district and appeal courts are appointed giving the justice minister broad powers to replace chief judges within six months of the law coming into force; as well as requiring the random allocation of judges to cases in order to tackle what the government argued were corrupt local practices. The third proposed a new procedure for nominating Supreme Court judges requiring all of its current members to retire except for those re-instated by the President but only from a list presented to him by the justice minister (based on National Justice Council recommendations), with future candidates for appointment to the Court selected in the same way. The bill also envisaged the establishment of a new Supreme Court chamber that would make judgements on disciplinary actions against judges, following referrals by the justice minister.

Drifting towards authoritarianism or reforming an entrenched elite?

However, these reforms triggered one of the country’s sharpest political conflicts in recent years. Most of the legal establishment and the opposition – led by the centrist Civic Platform (PO), Poland’s governing party between 2007-15, and smaller liberal Modern (Nowoczesna) grouping and agrarian Polish Peasant Party (PSL) – strongly criticised the legislation arguing that it undermined the independence of the courts and constitutional separation of powers. Warning of a drift towards authoritarian rule, the government’s opponents said that, by putting judicial appointments under political control, these reforms would allow Law and Justice to pack the courts with its own, hand-picked nominees; pointing out that the Supreme Court rules on the validity of national election and referendum results. As a consequence, thousands of Poles protested against the reforms in street demonstrations and candle-lit vigils held in dozens of towns and cities.

The reforms were also heavily criticised by the EU political establishment and Western opinion-forming media, with whom the opposition enjoys close links and many of whom share their dislike of Law and Justice. The European Commission has been involved in a separate, ongoing dispute with the Polish government since January 2016 over the membership and functioning of the country’s constitutional tribunal. As the judicial reform crisis escalated, the Commission appeared to move closer towards taking further action against Poland under the so-called Article 7 procedure, which it can invoke against EU member states where it feels there is a ‘systemic threat’ to democracy and the rule of law. Moreover, in spite of the fact that the US Trump administration is a seen as one of the Polish government’s key international allies, the American State Department also raised concerns about the reforms.

The government’s supporters, on the other hand, said that the reforms were needed to make the judiciary more accountable and ensure that it served all Poles and not just the elites, arguing that Polish courts were too slow, unfair and tolerated frequent irregularities and corrupt practices. The judicial elite, they said, viewed itself as a superior ‘special caste’ out of touch with ordinary citizens, and operated as a ‘state within a state’ incapable of reforming itself. In these circumstances, allowing elected political bodies a greater say in the functioning of the courts, and the appointment of judges and their supervisory bodies, was justified. Moreover, they argued, the reforms did not necessarily impinge upon judicial impartiality as they simply brought Poland more into line with appointment practices in other established Western democracies.

Mr Duda’s shock move

However, in a dramatic and surprising move at the end of the July Mr Duda announced that he would veto the National Judicial Council and Supreme Court bills, while ratifying the law on the lower courts. In fact, from the outset of his presidency Mr Duda has struggled to carve out an independent role for himself and the vetoes were partly the culmination of tensions between the government and a President who was tired of being side-lined. Up until now, Mr Duda has been dismissed by the government’s critics as Law and Justice’s ‘notary’, having (publicly at least) supported virtually all of its key decisions, even the most controversial ones, such as its actions during the bitter and polarising constitutional tribunal dispute.

Announcing his decision, Mr Duda expressed regret that the Supreme Court bill had not been consulted more extensively before it was put to a parliamentary vote and justified his veto on the grounds that the proposed reforms vested too much potential influence over the Court’s operational and personnel decisions in the hands of the justice minister, who in Poland also functions as the chief public prosecutor. Moreover, his condition for approving the National Judicial Council bill, that its parliamentary appointees be elected by a three-fifths majority, was actually introduced as an amendment to the Supreme Court bill, so once he vetoed the latter it was difficult for him to approve the former.

Mr Duda is also aware that in order to secure re-election in 2020 he will need to appeal beyond the Law and Justice hard core and consolidate his support in the political centre. While the majority of Poles are dissatisfied with the way that the courts function, the ruling party was not able to win public support for these particular reforms, with polls suggesting that there was widespread backing for the presidential vetoes. Moreover, Mr Duda may have been influenced by the fact that the anti-government demonstrations appeared to mobilise a more diverse cross-section of the public than earlier protests, notably among young people. Indeed, the most effective opposition seemed to be organised by relatively new grassroots movements, such as the on-line ‘Democracy Action’ (AD) platform, which kept overtly party political slogans and leaders out of the limelight; although several government supporters argue that some of these were actually examples of ‘astroturfing’: orchestrated campaigns designed to look like spontaneous civic actions.

An alternative power centre in the governing camp

When announcing the vetoes, Mr Duda insisted that he supported the government’s broader objective of radically reforming the judiciary and promised to bring forward revised legislation within two months. There was some support for the President within the governing camp, notably those politicians clustered around the ‘Poland Together’ (PR) party led by deputy prime minister Jarosław Gowin, one of Law and Justice’s junior partners in the ‘United Right’ (ZL) electoral coalition. However, the vetoes were generally met with bitter disappointment within the governing camp and viewed as an act of betrayal by some of its leaders, especially those close to justice minister Zbigniew Ziobro, who is also leader of the small ‘Solidaristic Poland’ (SP) party, another Law and Justice ally.

More broadly, Mr Duda’s vetoes have introduced a new and unpredictable element into Polish politics, exposing divisions within, and undermining the cohesiveness of, the governing camp. They have shown that the President no longer considers himself to be dependent upon Law and Justice leader Jarosław Kaczyński who, although he does not hold any formal state positions, has exercised a powerful behind-the-scenes influence in determining the government’s programmatic and strategic priorities. Mr Kaczyński now has to deal with the emergence of an alternative power centre within the governing camp that he will have to negotiate with in order to secure the passage of the government’s legislative programme. Although presidential vetoes can be overturned by a three-fifths majority, this is larger than the number of parliamentary votes that Law and Justice can muster. Mr Kaczyński values political loyalty above all else but he also knows that a further escalation of the conflict with the President would be suicidal for the ruling party and that he has to work with him to keep the Law and Justice project on track.

At the same time, the opposition parties feel emboldened they were able to secure at least a partial victory and vindicated in their strategy of exerting pressure on the government through a combination of street protests and international influence (in Polish: ‘ulica i zagranica’). However, the reason that the street protests made such an impact was precisely because they appeared to be largely non-partisan, which made it difficult for the government to dismiss them as simply representing the old ruling elites. Indeed, many of those involved appeared to have little time for the current opposition leaders, who face the same problem that they did before the judicial crisis began: their inability to present an attractive alternative to Law and Justice on the social and economic issues that most voters regard as their priority. For this reason, opinion polls suggest that the crisis has not changed voting preferences with Law and Justice still comfortably ahead of the opposition.

For its part, the European Commission has shown no intention of letting up in spite of the presidential vetoes: issuing a new set of recommendations relating to the judicial reforms which, they argue, increase the systemic threat to the rule of law; and saying that it is ready to trigger Article 7 immediately if any Supreme Court judge is dismissed. However, Law and Justice has ignored previous Commission recommendations, saying that they represent political interference in Polish domestic affairs, and unanimity is required in the European Council to trigger sanctions with the Hungarian government, for one, making it clear that it will oppose such moves. In a separate action, the Commission has, therefore, launched an infringement procedure against Poland for alleged breach of EU law, arguing that the common courts law gives the justice minister too much influence on whether or not to prolong judges’ mandates and is discriminatory because it introduces separate retirement ages for men and women. This may eventually result in financial penalties being imposed on Poland but will have to be resolved in the European Court of Justice so could drag on for some time.

Under pressure to deliver

By demonstrating that he can act independently, Mr Duda’s vetoes of the government’s flagship bills reforming Poland’s legal system give him an opportunity to completely re-define his presidency. However, having taken ownership of the judicial reform issue he will now be under intense pressure to deliver. If he does not produce what the government would consider to be meaningful reforms this could alienate his right-wing political base, without necessarily expanding his support in the political centre. But while Mr Duda has drawn some short-term praise from Law and Justice’s opponents, they will quickly revert back to attacking him, especially if he ends up proposing a judicial reform package very similar to the government’s original proposals.

Presidential Activism and Veto Power in Central and Eastern Europe

This post summarises the new book by Philipp Köker ‘Presidential Activism and Veto Power in Central and Eastern Europe’ (Palgrave Macmillan, 2017). The book is the inaugural volume in the new series Palgrave Studies in Presidential Politics (edited by Robert Elgie and Gianluca Passarelli) and is based on Philipp’s PhD thesis which won the ECPR Jean Blondel PhD Prize 2016.

Presidential powers feature prominently in academic debates. Paradoxically, until now only few scholars have tried to analyse and explain how presidential actually use them. This book tries to fill this gap in the academic literature, but is also rooted in a real-life encounter with presidential activism. As an undergraduate intern in the Polish Sejm I witnessed first-hand the negotiations between President Lech Kaczyński and Gregorz Napieralski, newly elected leader of the Democratic Left Alliance (SLD), on blocking an override of the president’s veto of the media law in July 2008.The aim of this book is map and analyse such patterns in the activism of presidents and explain when and why presidents become active and use their powers. Thereby, it focuses on 9 Central and East European democracies (i.e. those that joined the EU in 2004/2007) during the period 1990-2010. Given that their political systems were created during the same, comparatively short period of time, share a common trajectory of development and were confronted with the same challenges, they are particularly suited for analysis. With regards to presidential powers, I concentrate on two of the most prominent presidential powers:

  1. the power to veto legislation and return it to parliament
  2. the appointment and censure of governments and cabinet ministers

The central argument is that presidential activism can best be explained by the institutional structure – including the mode of election – and the political environment, particularly the relative strength and level of consensus between president, parliament and government. Thereby, I argue that popular presidential elections matter fundamentally for presidential activism – directly elected presidents are agents of the public rather than parliament and lack the constraints and potential for punishment faced by their indirectly presidents elected counterparts (which challenges Tavits 2008). Furthermore, presidents should be more active when they find themselves in cohabitation with the government, when parliamentary fragmentation is high, and when the government does not hold a majority in the legislature.

To test these and additional hypotheses, my book uses a nested analysis research design (Lieberman 2005) that combines the statistical analysis of an original cross-section time series data set on the use of presidential vetoes with carefully selected case studies based on numerous elite and expert interviews in four most-different countries. The analysis of presidential activism in government formation and censure is thereby deliberately left for the qualitative analysis as there is no adequate quantitative data yet.

Patterns of Presidential Veto Use in Central and Eastern EuropeMy regression models generally confirms the majority of my hypotheses. In line with the table above, my model results clearly show that presidents used their veto power significantly more often than indirectly elected presidents. Furthermore, presidents were more active during neutral relations with the government and cohabitation and the effects of the governmental and presidential seat shares, too, showed the expected effects. Echoing findings from the study of presidential veto use in the United States, president also vetoed more frequently the more bills were passed by parliament. Based on the predictions of the statistical models, I then select 12 president-cabinet pairings in four countries (Estonia, Hungary, Poland and Slovakia) for further in-depth analysis. Thereby, I make sure to select both strong/weak and directly/indirectly elected presidents and one pairing per office holder to control for institutional variations and individual presidents.

Presidential Activism in Practice

The in-depth analysis of presidential veto use also confirms my hypotheses and provides strong evidence that the hypothesised mechanisms actually insist. In particular, the mode of presidential election emerged as one of, if not the most important factor in explaining presidential activism. The popular mandate gained through direct elections gave presidents significantly more freedom in their actions but also required them to be more active to ensure their re-election – this was not only confirmed through my interviews with high-ranking presidential advisors but also evidenced by a number of presidents’ public statements. Indirectly elected presidents on the other hand acknowledged their dependence on parliament and therefore used their powers less often as not to interfere in the work of their principal. The relationship between president and government as well as the government’s strength in parliament were equally shown to be key determinants in presidents’ decisions to use their powers. Yet the qualitative also demonstrated that the size of presidents’ support base in parliament only becomes relevant when their party participates in government or when high thresholds are needed to override a veto. In addition, the qualitative analysis suggested an additional explanatory factor for presidential activism not included in my theoretical and statistical models – divisions within and between government parties provided additional opportunities for activism and could explain vetoes under otherwise unfavourable conditions.

My analysis of presidential activism in the appointment and censure of governments then takes a more exploratory approach and covers the entire period of observation (rather than just specific president-cabinet pairings). The results show some support for existing hypotheses in the literature but also call for re-thinking the use of non-partisan cabinet ministers as a proxy for presidential involvement. In particularly, non-partisans were not only often appointed without presidential involvement, but presidents were also more actively involved in placing co-partisans in the cabinet.

Studying Presidential Activism in Central and Eastern Europe and Beyond

Presidents still belong to the group of less-studied political actors. Yet even though countries differ greatly in how much power is vested in the presidency, presidents always possess at least some power and even the least powerful presidents play an important functional and procedural role in their political systems apart from ceremonial duties. Thus, studying presidential politics has a very strong practical relevance for any republican political system.

My book shows that theoretical approaches developed for presidents in other contexts (i.e. mostly the United States) ‘travelled’ almost effortlessly to Central and Eastern Europe. Several mechanisms of effect could be observed irrespective of institutional structure, highlighting the enormous potential of ‘comparative presidential studies’ beyond national contexts. Thus, I hope that my book is – together with the work of this blog and the recently formed ECPR Standing Group on Presidential Politics – will help to further develop this sub-discipline of political science to the extent that it becomes en par with long-established scholarship on the presidency of the United States.

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References & Notes:
Lieberman, E. S. (2005). Nested Analysis as a Mixed-method Strategy for Comparative Research. American Political Science Review, 99(3), 435–452.
Tavits, M. (2008). Presidents with Prime Ministers: Do Direct Elections Matter?. Oxford/New York: Oxford University Press.

Find out more details about the book and the new series Palgrave Studies in Presidential Politics  on the Palgrave website.

Poland – The shadow of the Smolensk air crash over Polish politics

The crash of the presidential aircraft in Smolensk on 10 April 2010, killing not only president Lech Kaczynski (Law and Justice – PiS) and his wife but also 94 other high-ranking politicians and military officials as well as the crew, is arguably the most significant moment in Polish politics during the last 25 years. PiS, controlling presidency and government since 2015, has recently ramped up its efforts to promote their questionable version of the events. Seven years on, the crash thus still casts its shadow over Polish politics and pose interesting questions regarding the developments in government and presidency.

President Duda lays wreaths at the Smolensk memorial and victims’ graves – 10 April 2017 | photo via prezydent.pl

The news of the crash in Smolensk (Russia), from where the president and other passengers were meant to drive to Katyn to commemorate the massacre of more than 20,000 Polish officers by the Soviet NKVD in 1943, put Poland in a state of shock – surpassing even the mourning in the aftermath of the death of Pope John Paul II in 2005. Contrary to the passing of the ‘Polish Pope’, however, the event divided Polish society more strongly any other issue in modern Polish history. Criticism was mainly levelled at the Polish government led by Prime Minister Donald Tusk (Civic Platform – PO) and their handling of the investigation. In particular, the conservative and traditionally russophobe part of the electorate (which moreover strongly identified with the views of PiS), were discontent with the fact that Russia was handling the primary investigation, although this was dictated by international law. This was amplified by problems reported with the identification of victims (leading to exhumations even years later) and their transport to Poland. Already then PiS politicians including Jaroslaw Kaczynski – party leader and identical twin brother of the president – openly accused Donald Tusk and his government of conspiring with then Russian Prime Minister Vladimir Putin to kill the president.

After Jaroslaw Kaczynski lost the subsequent presidential election against the government candidate and parliament speaker Bronislaw Komorowski, controversy centred on the various reports on the crash. Prosecutors concluded that the plane had descended despite adverse weather conditions and too early, colliding with a tree and breaking up. An impromptu parliamentary commission led by PiS politician Antoni Macierewicz on the other hand produced a report that claimed that the plane had been brought down by explosions, basing its conclusion on statements by several self-proclaimed experts and containing several contradictions and inconsistencies. Throughout the years following the crash, PiS also supported vigils, a grass roots movements and other initiatives such as the yearly ‘Smolensk Conference’ (whose website has a section dedicated to exposing alleged misinformation and cover-ups by the Tusk government).

The issue of Smolensk remains highly divisive, yet PiS has interpreted its victory in the 2015 parliamentary elections – preceded by the election of its candidate Andrzej Duda as president only months earlier – as a mandate to not only execute a number of highly controversial and arguably unconstitutional measures, but also to considerably increase its efforts to push their own version of the events nationally and internationally. Although formally these are promoted by Prime Minister Beata Szydlo and members of her government as well as president Duda, it is clear that they are coordinated by party leader Jaroslaw Kaczynski (who does not hold any government office himself and is not even leader of the parliamentary party). At first, the new government disabled the official website about the investigation. Later, it started to promote the widely criticised film ‘Smolensk’ which is based on the discredited explosion/assassination theory; as even diplomatic posts were used to promote it internationally, some cinemas rented for the purpose of viewings cancelled the booking as the film was seen as government propaganda. Jaroslaw Kaczynski himself has stated that the film showed ‘the truth’. In November 2016, the government opened a new investigation which included the exhumation of the president and several other victims against protests by the majority of relatives. Two weeks ago, the Polish prosecution – which like the state media has been restructured to reflect the views of the ruling party – announced they would charge two Russian air traffic controllers with deliberately causing the crash.

The activities of the Polish government regarding the Smolensk air crash are part of a wider strategy and legitimising narrative to consolidate power. Nevertheless, they have never been able to shake the appearance of a personal Vendetta by Jaroslaw Kaczynski. Therefore, and given that a majority of the Polish population is now in favour of laying the matter to rest (only ~25% consistently report to rather trust any of the conspiracy theories), it is puzzling why the government would still pursue it. Jaroslaw Kaczynski’s personal interest is surely a driving factor, yet he is also well aware that he cannot win elections with the topic (admittedly, the government has a introduced and put more effort into a number of other policies more clearly directed at gaining popular support). However, it may well be that the recent shift from the explosion-theory to accusing Russian air traffic controllers is part of a larger plan to rather mobilise anti-Russian sentiment in the Polish population (which is more promising). Another interesting point is the fact that Andrzej Duda as president, albeit supporting the PiS narrative, has not taken a more prominent role. At first glance, this may appear as a strategy to appeal to a wider electorate in the next presidential election than just PiS’ core electorate. Yet as he has so far never openly criticised the government or any of its policies, this seems unlikely. Rather, the Polish presidency under Duda (and Jaroslaw Kaczynski as the grey eminence) eerily beings to resemble developments observed in Hungary, i.e. towards a presidency as mere lapdog of the ruling party rather than an effective check-and-balance. While the once again poses the question, what use the institution then fulfils for the party in power, it is a parallel in two increasingly illiberal democracies that requires further investigation.

President/Cabinet conflict in Poland

Following on from the post about president/cabinet conflict in Romania and Italy, today’s post focuses on president/cabinet conflict in Poland.

To recap, I asked academics to provide a judgment of the level of president/cabinet conflict on a four-point ordinal scale: a High level was indicated as the situation where there was persistent and severe conflict between the president and the cabinet; a Low level was expressed as the situation where there was no significant conflict between the president and the cabinet; and two intermediate levels – a Low-Medium level, and a Medium-High level – where the level of conflict was unspecified.

For Poland, I record scores for 13 cabinet units. I did not ask for scores for non-partisan presidents or caretaker governments. I received seven expert replies. The level of inter-coder reliability was high.

If we assign a value of 0, 0.33, 0.67, and 1 for Low, Low-Medium, Medium-High, and High respectively, then we return the following mean levels of conflict. See Table below.

These results tally nicely with the study by Sedelius and Ekman (2010) and Sedelius and Mashtaler (2013).

References

Sedelius, Thomas, and Ekman, Joakim (2010), ‘Intra-executive Conflict and Cabinet Instability: Effects of Semi-presidentialism in Central and Eastern Europe’, Government and Opposition, 45(4): 505–30.

Sedelius, Thomas, and Olga Mashtaler (2013), ‘Two Decades of Semi-presidentialism: Issues of Intra-executive Conflict in Central and Eastern Europe 1991–2011’, East European Politics, 29(2): 109-134.

Happy New Year? Christmas and New Year’s addresses by European presidents for 2017

This post marks the third time that I have written about selected presidential Christmas and New Year’s addresses by European presidents (see 2015 and 2016 here), so that it is now becoming a tradition of its own. This year’s speeches differed only little in focus from last year, as the refugee crisis and security concerns continue to determine the public debate, yet speeches took a more political tone in a number of countries. At the same time, this year also saw some ‘firsts’ – newly-elected Estonian president, Kersti Kaljulaid, gave her first New Year’s address and Austria (for the first time in decades) had no New Year’s address at all.

Slovak president Andrej Kiska reading out his New Year´s Day Address | © prezident.sk

Presidential Christmas and New Year’s Addresses tend to be a mixture of reflections on the political and societal events of the last year and general good wishes for the festive period or the new year. While the previous year had already seen an increase in political content, this year even more presidents referred to concrete events and policies – first and foremost the terrorist attack in Berlin on 19 December 2016. German president Gauck’s Christmas message was clearly dominated by the attack, yet stressed the need for compassion, highlighted efforts by volunteers both after the Berlin attacks and in helping refugees, and called for unity over sweeping judgments. Slovak president Andrej Kiska dismissed xenophobic sentiments in his New Year’s address even more directly, acknowledging a deviation from usual end-of-year reflection and highlighting his disagreements with the government over the issue. The Slovak government has not only strongly opposed taking in any refugees, but also includes the far-right Slovak National Party (SNS) and recently passed a more restrictive church law specifically targeting Muslims (which was promptly vetoed by Kiska). Quite in contrast to these conciliatory words, Czech president Zeman used the opportunity claim a ‘clear link between the migrant wave and terrorist attacks’. In his 20-minute address – far longer than any other presidential holiday speech – from the presidential holiday residence at Lany, he also attacked the governing coalition, spoke about banning internet pornography and expressed his admiration for Donald Trump and his ‘aggressive style’.

The Christmas speech of Polish president Andrzej Duda also took an unusually political turn as it started off with much praise for government reforms. Although the Polish government, too, refused to accept refugees under the EU compromises, references to EU crises remained relatively vague. Remarkable, however, was Duda’s call to ‘respect the rules of democracy’ which was clearly aimed at the parliamentary and extra-parliamentary opposition which criticised what they in turn perceived as the unconstitutional behaviour of the governing party (see here). The address by Duda’s Croatian counterpart, Kolinda Grabar-Kitarovic, was also in remarkable as she devoted the entirety of her speech to condemning recent increases in intolerance and the simultaneous glorification of past fascist and communist regimes which she then linked to the fact that “busloads of young people are leaving the country each day” and called the government and all parties to action. Italy’s president Sergio Mattarella likewise urged parties to take action  to avoid the ‘ungovernability’ of the country, yet mostly focussed on listing the concerns of citizens and various tragic deaths rather than providing a very positive message.

Bulgarian president Rosen Plevneliev used his last New Year’s address as president to highlight more positive achievements, such as the ten year anniversary of EU accession (also mentioned by Romanian president Iohannis in his very brief seasons’ greetings), a rise in GDP and successful completion of the presidency of the Committee of Ministers of the Council of Europe. While stressing the need for further reform, President of Cyprus Nicos Anastasiades also provided a more positive message focused on the progress in the negotiations about a reunification of the island, also thanking people for their sacrifices in implementing the financial bail-out completed in 2016.

Hungarian President Ader with sign language interpreter (left); Latvian president Vejonis with his wife (right)

On a different note, Hungarians and Latvians might have been surprised to see additional faces in the recordings of presidential messages: Hungarian president Janos Ader’s speech was simultaneously interpreted into sign language by deaf model and equality activist Fanni Weisz standing in the background, whereas Latvian president Raimonds Vejonis even shared parts of the address with his wife. For those interested in ‘pomp and circumstance’, the address by Maltese president Marie-Louise Coleiro is highly recommended as the recording features a praeludium and a postludium by a military band in gala uniform inside the presidential palace (Youtube video here).

Last, for the first time in decades Austria lacked a New Year’s address by the president. Although Alexander Van der Bellen was finally elected president in early December, he will only be inaugurated on 26 January 2016. His successor, Heinz Fischer, finished his term already on 8 July 2016 and the triumvirate of parliamentary speakers (which incidentally include Van der Bellen’s unsuccessful challenger, Norbert Hofer), who are currently serving collectively as acting president, did not provide any New Year’s greetings.

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A full list of speeches is available for download here.

Aleks Szczerbiak – Has Polish President Andrzej Duda’s first year been a success?

This is a guest post by Aleks Szczerbiak, Professor of Politics and Contemporary European Studies at the University of Sussex. An earlier version appeared on his blog.

Aleks Szczerbiak

In the year since he was sworn in as President Andrzej Duda has become Poland’s most popular politician and appears increasingly confident in his international role. But he still has to build up his authority within the ruling party if he is to become a significant independent player on the political scene.

Forced to take sides

Last May, in one of the biggest electoral upsets in post-communist Polish politics Andrzej Duda – the candidate of the right-wing Law and Justice (PiS) party, the then main opposition grouping – defeated incumbent President and odds-on favourite Bronisław Komorowski, backed by the ruling centrist Civic Platform (PO), by 51.6% to 48.5%. His success paved the way for Law and Justice’s stunning victory in the October parliamentary election when it was the first political grouping in post-1989 Poland to secure an outright majority, and Mr Duda’s campaign manager, party deputy leader Beata Szydło, became prime minister.

Although careful not to support Law and Justice overtly, Mr Duda used the various political and constitutional instruments at his disposal to promote the party’s programme of so-called ‘good change’ (dobra zmiana) in the run-up to the October poll. For example, in his first major initiative as President he proposed holding a referendum on the same day as the election on one of Law and Justice’s key campaign pledges: reversing the outgoing government’s extremely unpopular pension reforms, that raised the retirement age to 67 from 60 for women and 65 for men (although the referendum proposal was voted down by the Civic Platform-dominated Senate).

Almost immediately after Law and Justice took office, Mr Duda was forced to take sides in an extremely controversial and polarising political dispute over the membership of the constitutional tribunal, a powerful body that rules on the constitutionality of Polish laws. The new government annulled the appointment of five judges elected by the previous parliament to the 15-member body. Earlier these judges were unable to assume their posts because Mr Duda did not accept their oaths of office. However, the tribunal itself ruled that while the appointment of the two judges replacing those whose terms of office expired in December was unconstitutional the other three were nominated legally. Government supporters, in turn, argued that the tribunal did not have the right to make judgements about the constitutionality of parliamentary appointments, and Mr Duda swore in five judges nominated by the new parliament instead

The move met with widespread criticism from most of the opposition and legal establishment, who accused the government and President of violating judicial independence and undermining the fundamentals of democracy and the rule of law. As a consequence, thousands of Poles participated in demonstrations organised by the Committee for the Defence of Democracy (KOD), an anti-Law and Justice civic movement. The government’s supporters, however, placed the blame for the crisis squarely on the outgoing administration, which they argued tried to appoint five judges illegally just before the election to pack the tribunal with Law and Justice opponents. More broadly they defended these actions as necessary to restore pluralism and balance to the tribunal, which they said had been expropriated by supporters of the previous governing party, and claimed that opposition was being orchestrated by well-entrenched, and often deeply corrupt, post-communist elites.

Mr Duda paid a high political price for his unswerving support for the government on this issue. Apart from having to expend much time and political capital explaining his actions, by bringing the presidency into the epicentre of party conflict the crisis made it increasingly difficult for Mr Duda to build bridges with milieu not necessarily naturally sympathetic to Law and Justice, one of his greatest achievements during the presidential election campaign. In fact, the problem was as much the way in which the decisions were taken as their substance: four of the Law and Justice-nominated judges were sworn-in at a ceremony held literally in the middle of the night before the tribunal was due to rule on the constitutionality of the earlier appointments. Opinion surveys conducted by the CBOS polling agency found a 20% increase (to 40%) in negative evaluations of the President between November and December, while the number who did not trust Mr Duda rose from 19% to 30%.

Struggling to carve out an independent profile

More broadly, Mr Duda has struggled to carve out an independent profile for himself in his first year as President. The presidency has a particular position in the Polish political system. It is not simply a ceremonial role and, in addition to a strong electoral mandate, retains some important constitutional powers such as: the right to initiate legislation, refer bills to the constitutional tribunal, and, perhaps most significantly, a suspensive veto that requires a three-fifths parliamentary majority to over-turn. However, Mr Duda has quickly signed all of the Law and Justice government’s bills into law. Indeed, a December 2015 survey by the IBRiS agency found that by a majority of respondents (54% to 35%) felt that he did not take his decisions independently of Law and Justice leader Jarosław Kaczyński who, although he does not hold any formal state positions, exercises a powerful behind-the-scenes influence in determining the government’s programmatic and strategic priorities.

Moreover, the President’s competencies are much less significant than those of, say, his French counterpart and real executive power lies with the prime minister. So it is difficult for him to carve out a distinctive role in the domestic political sphere, especially when a presidential term coincides with that of a government led by his political grouping. As soon as the Law and Justice government was elected, therefore, Mr Duda’s promises went on the back-burner and attention shifted to the new administration’s legislative programme. For example, the government’s priority during its first months in office was introducing its costly but generous (and extremely popular) ‘500 plus’ child subsidy programme, which Mr Duda supported but in most citizens’ minds was associated primarily with the Szydło administration. Mr Duda’s two flagship campaign pledges, lowering the retirement age and increasing tax allowances, languished in parliament for several months and, although the government has promised to bring forward legislation in the autumn, it is still not clear when they will be implemented. Moreover, when it appeared to threaten the stability of the financial sector, the President was forced to row back from his key election pledge to help the country’s half-a-million foreign currency (mainly Swiss franc) mortgage holders (who had lost out as a result of the depreciation of the Polish currency in recent years) by forcing banks to convert their loans to złoties.

It is naïve to expect Mr Duda to distance himself from policies which are almost identical to the ones on which he was also elected. Everything suggests that he shares Mr Kaczyński’s political philosophy and perspectives on most issues and personally supports most if not all of the government’s decisions. At the same time, refusing to sign one of the government’s flagship bills would be incomprehensible to Mr Duda’s political base, and while it might draw some short-term praise from Law and Justice opponents they would quickly revert to criticising him again. Mr Duda is also a relatively young politician and may have future ambitions to take over the Law and Justice leadership when Mr Kaczyński eventually stands down, so it is not in his long-term interests either to alienate the party’s core supporters.

Prioritising defence and foreign policy

However, Mr Duda is aware that in order to secure the 50% of the votes that he needs for re-election he also has to appeal to more centrist voters beyond the Law and Justice hard core. Consequently, he has been trying to steadily carve out a more independent political role for himself. The first clear indication of this came in April during the sixth anniversary of the Smoleńsk tragedy, a plane crash in which the then Law and Justice-backed President Lech Kaczyński, Jarosław’s twin brother, and 95 others were killed while on their way to commemorate the 1940 Soviet massacre of Polish officers in the Katyń forest in western Russia. The air disaster is still an open wound for Law and Justice, and Mr Kaczyński and some party leaders have not only accused the former Civic Platform-led government of negligence in planning the flight and mishandling its aftermath but also appeared to countenance assassination as a possible cause of the crash. In his speech at the commemorations, Mr Duda made a symbolic appeal for national unity and mutual forgiveness, prompting Mr Kaczyński to respond that forgiveness was needed but only after those guilty of causing the tragedy were brought to justice.

At the same time, Mr Duda has marked out foreign affairs and defence policy as his main field of activity and appears increasingly confident in this role. Although foreign policy lies within the government’s domain, the Polish Constitution gives the President an informal oversight and co-ordinating role. He can also exercise a powerful informal influence through his foreign visits and high profile speeches on international issues. During last year’s elections Law and Justice made the sharpening of policy towards Russia a crucial test of its effectiveness in ensuring national security, and called for the July NATO summit in Warsaw to strengthen Poland’s defence infrastructure by securing a greater (and preferably permanent) Alliance military presence in the country. Mr Duda visited a large number of NATO member capitals to mobilise political support for Poland’s demands and, in the event, the summit agreed to strengthen the Alliance’s Eastern flank and confirmed the deployment of a 1,000-strong international battalion on a rotational basis on Polish territory.

The summit’s success no doubt contributed to Mr Duda’s steadily increasing popularity, together with the fact that as President he has demonstrated a more open style and greater ability to connect with ordinary Poles than the stereotypical Law and Justice politician. In spite of opposition attempts to portray him as a ‘partisan President’, July CBOS polls found that Mr Duda enjoyed a 56% approval rating (32% disapproval) and remained Poland’s most popular politician with 62% saying that they trusted him (24% did not). However, although he remains unswervingly loyal to the Law and Justice leader, Mr Duda’s attempts to develop a more independent profile also appear to have led to a cooling of relations with Mr Kaczyński, who some commentators argue has been distancing himself from the head of state. For example, the Law and Justice leader appeared to snub Mr Duda when he failed to include the President among those he listed as responsible for the NATO summit’s success; although he quickly corrected himself saying that this was a mistake. Nonetheless, Mr Kaczyński appears to treat not just Mr Duda but the whole government as the implementers rather than creators of policy and leaves little doubt that the party’s most important decision making centre remains the leader’s office.

Popular but lacking a clear role

One year is too soon for a proper evaluation of Mr Duda. For sure, it has been difficult for him to realise his concept of an ‘open’ presidency at a time when the political scene is so deeply polarised around bitter conflicts such as the constitutional tribunal crisis. However, although the crisis damaged Mr Duda’s ability to develop links with certain milieu, the opposition’s attempts to dub him a ‘partisan President’ do not appear to have harmed his approval ratings to any significant extent. Indeed, he remains one of Law and Justice’s greatest political assets with a significantly broader base of support than the party or any of its other leaders. Mr Duda’s main problem is that he has not yet found a clear role for himself and needs to build up his authority within the ruling party if he is to become a significant independent player on the Polish political scene.

Poland – Judicial independence in jeopardy? President Duda refuses appointment of ten further judges

The controversy over Poland’s constitutional court triggered by president Duda’s refusal to appoint judges nominated by the outgoing Sejm and passage of legislation to legitimise his and the new government’s behaviour has so far dominated the presidency of Andrzej Duda (for a summary see Aleks Szczerbiak’s post here). Now, Duda is once again in the line of fire following his refusal to appoint ten out of thirteen judges from lower-level courts to higher positions. Thus, although the individuals put forward by the National Judiciary Council (a committee formed of 17 judges, the minister of judges and 5 political nominees) are far from uncontroversial, the relatively unchecked power of the president in the area of judicial appointments and the government’s plan to reform the judiciary continue to be the most prominent battlefields of Polish politics today.

President Duda appoints 'his' nominee Julia Przyłębska as judge of the Constitutional Tribunal on 9 December 2015| © prezydent.pl 2015

President Duda appoints ‘his’ nominee Julia Przyłębska as judge of the Constitutional Tribunal on 9 December 2015| © prezydent.pl 2015

The Polish constitution, like so many others (irrespective of this being intentional or not), remains vague on a number of presidential duties and prerogatives. Article 179 of the 1997 Constitution thus states with regard to appointments of judges that “judges are appointed by the president on the suggestion of the National Judiciary Council” but gives no further instructions on the procedures or an eventual right of the president to refuse such nominations. Constitutional scholars widely agree that presidents may refuse the nomination of any candidate for public office (irrespective of judge, professor or prime minister) on the grounds of a person’s lack of formal and legally required qualification or reasonable doubts about their loyalty to the constitution. While this generally follows from presidents’ inaugural oath to uphold and protect the constitution, the rejection of nominees for political or personal reasons arguably has no legal basis.

Duda’s refusal to appoint the judges met with particular opposition due to the lack of justification for his decision. Before being proposed candidates for judicial promotions are vetted by the National Judicial Council; if their application is denied they can appeal the decision in court. An additional vetting by the president beyond formalities thus appears not only unreasonable but also adds the complication that there is no prescribed legal way to appeal his refusal to appoint a nominee. Many conflicts over constitutional clauses along the lines of “the president appoints/signs/etc” fall into the category of conflict between two constitutional organs and can be adjudicated by the constitutional court by the ways of a standard procedure. Yet as both the National Judicial Council and the rejected nominees lack ‘organ quality’, neither of them can easily challenge the president’s decision. The latter became clear in the only other case judicial promotions at lower courts were refused by the president. In 2007 Duda’s pre-predecessor Lech Kaczynski (the deceased twin-brother of current Law and Justice party leader Jaroslaw Kaczynski), created a precedent for Duda’s actions by declining to appoint nine judges. The nominees’ constitutional complaints were eventually rejected after four years of deliberations as the justification was that the implementation of administrative law by the president does not fall within the remit of the Constitutional Court. The Supreme Administrative Court likewise rejected the complaints and subsequent further constitutional complaints were also rejected so that the case now (still) lies with the European Court of Human Rights (for a longer summary, see the report of the Helsinki foundation here).

Newspapers have speculated on the reasons which led the president to reject the nominations. In fact, some of the nominees are far from uncontroversial. One judge was prominently accused of bribery, another judge controversially dismissed a collective law suit against the financial services provider Amber Gold (which was liquidated following the discovery that is was based on a pyramid scheme), and a third was involved in the widely discussed case of restricting the “parents’ rights” of a couple accused of violence against their children. In addition, one judge was widely criticised for continuously extending the arrest of a football fan for alleged drug-dealing, yet without any verdict being issued over the course of three and a half years. Last, one of the judges whose promotion was denied judged on a case in which Law and Justice party Jaroslaw Kaczynski leader sued fellow legislator Janusz Palikot (then Civic Platform, later founder of ‘Palikot’s Movement’) for insulting him.

None of the above-mentioned controversies would generally justify denial of appointment or other presidential intervention. Thus, it is more likely that they are part of the Law and Justice government’s plan to reform and mould the judiciary in their image. Given that Duda is generally seen as little more than a vicarious agent of Law and Justice leader and Polish politics’ grey eminence (he does not hold any government office) Jaroslaw Kaczynski, it is not unreasonable to assume that the president is now helping to fulfil that plan (while at the same time extending the powers of his office). In a recent proposal made by the government (which was already widely criticised by the Human Rights Ombudsman and NGOs), the National Judiciary Council would have to propose two candidates per vacancy thus considerably increasing the president’s power over judicial nominations. This, together with the conflict over the constitutional court and the government’s decision to once again merge the position of general prosecutor with the minister of justice (the positions were separated by the predecessor government in 2008 and unsuccessfully vetoed by president Lech Kaczynski) highlights the great importance that Law and Justice attaches to judicial reform. Nevertheless, it also shows that judicial independence in Poland might increasingly come under threat – not only, but partially due to president Duda’s activism.

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See also my blog posts on similar conflicts over judicial appointment in Slovakia:
Slovakia – Continuing a legacy? President Kiska’s first 3 months in office and the battleground of judicial appointments
Slovakia – One year on, conflict over president’s refusal to appoint judges remains unsolved

Guest post: Who is winning Poland’s ‘constitutional tribunal war’?

This is a guest post by Aleks Szczerbiak, Professor of Politics and Contemporary European Studies at the University of Sussex. An earlier version appeared on his blog.

Aleks Szczerbiak

Poland’s new right-wing government has been engulfed in a debilitating controversy over the composition of the country’s constitutional tribunal. While opposition groupings claim that the government is undermining democracy, its supporters argue that the crisis was caused by its predecessor’s attempt to pack the tribunal with opponents of the new administration. The opposition has been more successful in promoting its narrative, and support for the ruling party and President have fallen, but the government retains the backing of its core supporters.

Controversy over new judges

Poland’s new government, led by the right-wing Law and Justice (PiS) party, has enjoyed virtually no post-election honeymoon and was plunged immediately into an ongoing dispute over the composition and functioning of the country’s 15-member constitutional tribunal. The tribunal is a powerful body whose task is to check whether or not laws and regulations adhere to the Constitution. At the end of November, the Law and Justice majority in the new Sejm, the more powerful lower chamber of the Polish parliament, annulled the appointment of five tribunal judges nominated in October by the previous parliament dominated by the centrist Civic Platform (PO), the former ruling party. Earlier, in June the Sejm amended the constitutional tribunal law to allow the outgoing parliament to appoint these judges, including two whose terms of office were not due to expire until December by which time the new Sejm would have convened. However, the five judges were unable to assume their posts because Law and Justice-backed President Andrzej Duda did not accept their oaths of office. This opened the way for the newly-elected Sejm to choose five new tribunal members, in spite of vocal protests from opposition parties.

At the start of December, the tribunal ruled that the appointment of two of the five Civic Platform-nominated judges (replacing those whose term of office expired in December) was unconstitutional, but that the other three were nominated legally and should be sworn in immediately. However, the presidential chancellery argued that the tribunal did not have the right to make judgements about the constitutionality of Sejm appointments, and Mr Duda swore in the five judges nominated by the new Sejm instead. Tribunal president Andrzej Rzepliński responded by declaring that the five would not participate in its work until he judged that their status was fully resolved.

Law and Justice tried to break this impasse by amending the constitutional tribunal law to increase the number of judges required to make rulings in the most important cases from nine to thirteen; thereby obliging Mr Rzepliński to accept the five judges appointed by the new Sejm. Moreover, the Law and Justice amendments increased the threshold for tribunal rulings to a two-thirds majority, making the votes of these new appointees more significant. They also stipulated that complaints filed to the tribunal would be considered chronologically rather than at its president’s discretion, potentially delaying its ability to question bills passed by the new government. The new law would take effect immediately, preventing the tribunal from declaring it unconstitutional. While critics claimed that that these changes would emasculate the tribunal, the government argued that they increased the legitimacy of its judgements and prevented the timing of cases being manipulated.

Threat to democracy or restoring balance?

The government’s actions met with vociferous protests from opposition politicians, the liberal-left media and much of the Polish legal establishment. Civic Platform, now the main opposition grouping, apologised for the rushed nomination of two additional judges, but condemned Mr Duda for refusing to swear in the other three nominated by the previous Sejm and argued that the election of the five Law and Justice nominees was unconstitutional. It joined forces with most other opposition parties in accusing the government of interfering in the independence of the judiciary by trying to obstruct the tribunal in order to free itself from legal checks and balances. The government’s critics claimed that it was reverting to the allegedly confrontational and authoritarian style of politics that they claimed characterised the previous 2005-7 Law and Justice-led administration, and that its handling of the constitutional crisis contradicted the moderate, centrist image that the party cultivated during the parliamentary election campaign; exemplified by Jarosław Kaczyński, the party’s combative leader, nominating his more emollient deputy Beata Szydło as its prime ministerial candidate. They also tried to raise the emotional temperature of the debate by arguing that the new government was violating the Constitution and posed a threat to democracy. As a consequence, thousands of Poles participated in demonstrations organised by the Committee for the Defence of Democracy (KOD), a new civic movement, on the two Saturdays before Christmas; the largest of which, in Warsaw, was (according to police estimates) attended by 20,000 people. (A figure disputed by organisers who claimed 50,000 and cited figures produced by the Warsaw mayor’s office; although government supporters say that she participed in the demonstration).

On the other hand, the government’s supporters, who organised a 40,000-strong (according to police estimates) counter-demonstration in Warsaw, placed the blame for the constitutional crisis squarely on the previous Civic Platform-led government, which, they say, appointed five judges illegally just before the October parliamentary election that opinion polls suggested it would lose. It did so, they claim, to pack the tribunal with opponents of the new government, thereby frustrating its legislative programme. Previously, they said, government turnover had ensured a more politically-balanced tribunal but the fact that the Civic Platform administration was the first in post-1989 Poland to be re-elected for a second consecutive term undermined this relative pluralism. Indeed, by attempting to stack the tribunal with five rather than three additional judges, all but one of tribunal’s 15 members would have been appointed during the period when Civic Platform was in government. Thus, even with the appointment of five members by the new Sejm, the tribunal would still have been dominated by judges nominated by Civic Platform government-dominated parliaments (although the three vacancies due to arise within the next 18 months could give Law and Justice nominees a majority during the second half of the current parliament).

While some government supporters accepted that Law and Justice may be partly to blame for the crisis by voting out the three justices who, in the tribunal’s view, were elected legally by the outgoing parliament, others pointed out that their election was invalid because of procedural errors in the October vote. They also argued that, as guardian of the Constitution, the President had the right not to accept the five judges appointed (in his view illegally) by the previous parliament and that the tribunal could not instruct him what to do with parliamentary nominees. The new Sejm, they said, elected five new tribunal members on the basis of its own procedural rules which are in line with the Constitution and cannot be reviewed by the tribunal, whose only role is to check the constitutionality of laws and regulations.

More broadly, the tribunal’s critics see it as a highly politicised body (a charge that the tribunal and its supporters deny vigorously). Law and Justice believes that many Polish institutions have been expropriated by an extremely well-entrenched, and often deeply corrupt, post-communist elite and remains committed to a radical reconstruction of the state. While the Committee for the Defence of Democracy-sponsored protests may have involved many politically non-aligned citizens, the party’s supporters argue that, far from being spontaneous civic actions, they were orchestrated by opposition politicians and vested interests hostile to the government’s plans to radically reconstruct the Polish state and sweeping socio-economic policy reforms. The latter include generous additional child benefits and reversing the Civic Platform government’s deeply unpopular decision to increase the retirement age to 67 (from 60 for women and 65 for men) to be funded partly by new taxes on banks and larger retailers. During the previous Law and Justice government the tribunal struck down key elements of the party’s programme, notably its flagship ‘lustration’ law extending the scope of vetting public officials and authority figures for their links with the communist-era security services. The new government, they say, had to redress the balance within the tribunal as it posed a threat to its core policy agenda.

No Law and Justice honeymoon

The constitutional tribunal war has developed into the most serious political crisis in Poland for many years, polarising opinion on both sides. No incoming Polish government has come under such rapid and intensive attack as the new Law and Justice administration. Given its determination to ‘cleanse’ the political system and scale of its reformist ambitions, it was inevitable that, sooner or later, the new administration would encounter vigorous opposition. On the face of it, constitutional prerogatives and abstract concepts such as the ‘separation of powers’ are difficult for ordinary citizens to grasp, and the tribunal is a body that does not appear to have any direct impact on their day-to-day lives. However, the opposition has been extremely successful in promoting its argument that this issue exemplifies how Polish democracy is under threat from the new government; a narrative that has been picked up by large sections of the EU political establishment and Western opinion-forming media, with whom the government’s opponents enjoy strong links and who share their dislike of Law and Justice. At the same time, the negative reaction to the government’s constitutional tribunal changes has caught Law and Justice off-guard and, in stark contrast to the professionalism of its election campaign, the party has failed to make its case effectively. Rather than using the language of ensuring greater pluralism and restoring balance, Law and Justice has often attempted to justify its actions by claiming that they increased the government’s effectiveness, making them appear part of a crude power grab. Although the Civic Platform government enjoyed much less hostility from the mainstream media (the lack of scrutiny of its over-reach in appointing additional constitutional tribunal judges in October being a case in point), it was also careful to ensure that it made state appointments with greater subtlety and finesse.

While newly elected governing parties usually enjoy a post-election ‘bounce’, opinion polls suggest that the crisis has led to a drop in support for Law and Justice among more moderate, centrist voters. The main beneficiary of this has been the ‘Modern’ (Nowoczesna) grouping, a new party formed in May by liberal economist Ryszard Petru which has pulled ahead of Civic Platform and is currently running neck-and-neck with (and, in some surveys, even slightly ahead of) Law and Justice. Others opinion polls have shown a substantial increase in negative evaluations of Mr Duda who, by being forced to take sides in such a divisive and polarising dispute, has paid a high political price for his unswerving support for the government. For sure, Mr Duda still enjoys relatively high approval ratings and remains Poland’s most popular politician, but the perception that he is a ‘partisan President’ may be difficult to shift.

While Law and Justice probably did not anticipate that the ‘constitutional tribunal war’ would prove to be so debilitating, the party has stood its ground and is clearly willing to pay a political price for actions it feels are necessary to ensure that its legislative programme is not de-railed. It has retained (and possibly even solidified) support among its core voters and no national elections are scheduled until autumn 2018 so has plenty of time to recover. Moreover, while the opposition has been mobilised and, to a degree, united by the crisis, it remains fragmented. ‘Modern’ is currently benefiting from its political ‘newness’ but Mr Petru’s grouping remains an unknown quantity and experience suggests that the social base for a purely liberal party is relatively narrow. Although it would be extremely damaging for Law and Justice if the perception of the party as a ‘threat to democracy’ were to become firmly lodged in public consciousness, ultimately the government’s fate, and ruling party’s electoral fortunes, are probably more likely to depend on its ability to deliver quickly on its high-profile socio-economic policy promises.

Aleks Szczerbiak is Professor of Politics and Contemporary European Studies at the University of Sussex. He is author of ‘Poland Within the European Union? New Awkward Partner or New Heart of Europe?’ (Routledge, 2012) (http://www.tandf.net/books/details/9780415380737/) and blogs regularly about developments on the Polish political scene at: http://polishpoliticsblog.wordpress.com/.

Happy New Year? Christmas and New Year’s addresses by European presidents for 2016

In the first blog post of 2015, I explored the origins of and various customs and conventions surrounding the Christmas and New Year’s addresses by European heads of state. This year, I will look more closely at the content of these speeches (although focussing – for the sake of brevity – only on presidents, i.e. non-hereditary heads of state this time).

Finnish Niinistö records his New Year's speech for 2016 | photo (c) Office of the President of the Republic of Finland 2016

Finnish president Sauli Niinistö records his New Year’s speech for 2016 | (c) Office of the President of the Republic of Finland 2016

As I noted in my post last year, Christmas and New Year’s addresses rarely rarely belong to the most important political speeches in European democracies and often include a short summary of the last year’s events in the country. Common themes (apart from holiday wishes) are relatively rare. This year, however, many presidents directly addressed the refugee crisis in Europe. The presidents of Austria and Germany who have had to deal with extraordinary refugee streams both called for compassion and tried to strengthen the ‘can do’-spirit that has so far characterised the reactions of Federal Chancellors’ Merkel and Faynmann and volunteers in both countries. Presidents of other countries hit by the surge of refugees did not address the issue so clearly. Hungarian president Ader referred to it among other unexpected events of 2015, while the Slovenian and Croatian presidents Pahor and Grabar-Kitarović in their – significantly shorter seasons’ greetings – did not raise the issue at all apart from vague references to difficulties.

The refugee crisis featured more prominently on the other hand in the speeches of Slovak president Kiska and Czech president Zeman – yet taking almost diametrically opposed positions. Kiska largely downplayed the issue stating Slovakia was much less affected than other countries and the issue should not dominate the national agenda. Zeman on the other hand, called the influx of refugees as “an organized invasion” and called for young male refugees to return to their country to fight ISIS. Given Zeman’s previous statements this is hardly surprising, yet it is generally unusual for a Christmas message to include such controversial material. The refugee crisis also took centre stage in speeches by Finnish president Niinistö as he justified the steps taken by the government to limit the number of people receiving help.

Another theme in presidential speeches were national tragedies and the security. The Paris attacks featured strongly in French president Hollande’s speech, so did the Germanwing air crash in German president Gauck’s Christmas message. The ongoing Ukrainian crisis and potential conflict with Russia as well as the war in Syria were included in a number of speeches. Yet presidents also focussed on the economic situation and way of the recession – most prominently included in the messages of the presidents of Greece, Portugal and Iceland. The latter’s speech was however mostly reported on due to the fact that president Ólafur Ragnar Grímsson announced that he would not run for a sixth term as president.

Overall, this once again highlights that presidential Christmas and New Year’s addresses can be important indicators of the political situation or the importance of particular events throughout the year. Until now, there has nevertheless been only very limited academic research on presidential statements on these occasions. So far, I could only find an analysis of the role of religion in new year’s addresses by Swiss Federal Presidents – showing an overall decline in biblical references throughout the years. [1] In most European republics appear to follow this trend – explicit biblical references beyond a mere reference to the holiday can only be found in the speeches of the presidents of Malta and Hungary.

Christmas - NY presidents 2016 + Wulff 2011

From top left to bottom right: Presidents Higgins (Ireland), Duda (Poland), Wulff (Germany; 2011), Coleiro Preca (Malta), Iohannis (Romania).

Last but not least (and partly inspired by the DailyMail’s analysis of the photographs on Queen Elizabeth II’s desk), I think it is worth looking at the setting of presidents’ speeches. Where speeches are broadcast on TV (or recorded and then put on youtube), the setting is surprisingly similar with the president usually sitting or standing in front of flags or a fireplace. In Germany, this set-up had so much become the norm that Christian Wulff’s walking speech among a group of surprisingly diverse citizens (see centre image of above collage) caused great excitement among editors trying to fill the seasonal news slump. More unusual however was Swiss Federal President Adolf Ogi’s address of 2000 – he stood in front of a railway tunnel (watch the video here).

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[1] Kley, Andreas (2008). ‘”Und der Herrgott, Herr Bundespräsident?” Zivilreligion in den Neujahrsansprachen der schweizerischen Bundespräsidenten’. In: Kraus, Dieter et al. Schweizerisches Jahrbuch für Kirchenrecht. Bern, Switzerland, 11-56.

A list with links to the 2015/2016 speeches can be downloaded here.