Tag Archives: judicial reform

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.