Tag Archives: Law and Justice

Poland – Is the presidency going down the Hungarian path?

Over the last years, I have chronicled (and lamented) the descent of the Hungarian presidency  during the Orbán government from promising check-and-balance into political irrelevance. After an initial phase of constructive presidential activism in which incumbent Janos Áder used his powers in an attempt to improve legislation, he subsequently failed to criticise any of the government’s controversial reforms and used his veto power and right to request judicial review on fewer and fewer occasions. Three years after the election of a Law and Justice (PiS) president and government in Poland, it appears that the Polish presidency is going down the Hungarian path. Despite the added legitimacy and independence through a direct electoral mandate, president Andrzej Duda has done little to balance the increasingly illiberal policies of the government. Although he has not remained entirely inactive, his activism is geared towards re-election and democratic window-dressing, rather than becoming a real check-and-balance.

Photo via prezydent.pl

When the 42 year-old MEP Andrzej Duda was elected president in May 2015, it was easy to portray him as little more than a puppet of PiS party leader Jaroslaw Kaczynski. After the parliamentary election in the autumn of the same year produced an absolute majority for PiS (for which Kaczynski has as of yet not taken an official seat on the front bench), Duda was complicit in the unconstitutional appointment of several judges to the Constitutional Tribunal (having previously refused to swear in judges that had been originally – and legally – appointed) and failed to step in when the government subsequently refused to publish the Tribunal’s judgement on the unconstitutionality of these actions. Up until last summer, president Duda failed to condemn any of the reforms of the Polish government, which resulted in the European Union’s decision to trigger Article 7 (a formal warning an possibility of disciplinary procedures) in December 2017.

In July 2017 president Duda vetoed two controversial judicial reforms that would have given the government near complete control over the judiciary. Nevertheless, as I argued at the time, the vetoes were little more than democratic window-dressing and inevitable due to national and international pressure after it emerged that the Senate had passed bills in different versions than the lower chamber. Duda’s vetoes caused friction with the PiS government and then Prime Minister Beata Szydlo as well as a number of other co-partisans accused him of hampering ‚improvements’ to the country’s legal system. Nevertheless, it is without question that these reforms will reappear in other forms and Duda will sign them off. The vetoes can merely be seem as an attempt to ‚save face‘ and means to appease critical voters in a bid to secure re-election in 2020.

President Duda’s signature under the so-called Holocaust bill, a law that seeks to punish those who accuse Poland or Poles of complicity in the mass extermination of jews during WWII with up to three years in prison, shows the same pattern of self-interested activism. Duda signed the bill into law but also submitted the bill to the Constitutional Tribunal at the same time. Signing the bill will appease not only the core electorate of PiS but also a the majority of Poles who rightly object to the phrase ‘Polish death camps‘ that is still frequently used to label Nazi concentration camps in occupied Poland (the country’s embassies still regularly intervene when the phrase is used in the media). Simultaneously sending the law to the Constitutional Tribunal should be seen as a signal to those voters who fear a limitation of free speech. Nevertheless, a decision from the Tribunal could take 1-2 years and with the law in force, the government can already use it to silence its critics – after the cleansing of public media from critical journalists, it becomes another tool to suppress free speech. Interestingly, the same tactic was used by president Lech Kaczynski (the twin brother of party leader and then Prime Minister Jaroslaw) during the PiS governments in 2005-2007 with the exception that the Constitutional Tribunal was not yet staffed with loyal judges (who are unlikely to pronounce the law unconstitutional).

Thus, it appears that the Polish presidency is going down the Hungarian path, albeit with some variation. As Andrzej Duda needs public support to secure his re-election in 2020 he is more active (or at least more visibly) than his Hungarian colleague. Given the greater international attention paid to the situation in Poland compared to the one in Hungary (where the EU clearly failed to step in in time) and stronger domestic opposition, Duda also needs to be active to appease international and national critics. However, overall the Polish presidency is currently failing at its job as a check-and-balance on parliament and government. An altered parliamentary composition following the 2019 legislative elections or even a second term for Duda in 2020 may change the situation, yet for now we may need to declare a ‘presidency lost‘.

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.