Tag Archives: Poland

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.

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.

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/.

Poland – President’s party wins absolute majority in parliamentary elections

After the presidential election in May this year and the referendum in September, Poles were called to the polls once again yesterday to vote in elections to the Sejm (the politically dominant lower chamber) and the Senat (upper). According to first exit polls and results, the ‘Law and Justice’ party (PiS) of recently elected president Andrzej Duda has clearly won the election and – according to first exit polls – might even be able to form the first single-party majority government in Poland’s recent democratic history.

TVP exit poll

Results of the first exit poll by IPSOS for state broadcaster TVP and TVN24.

The victory of PiS had been foreshadowed by the victory of its candidate Andrzej Duda in the presidential elections earlier this year, yet achieving an outright majority in parliament had been seen as unlikely as smaller parties were assumed to enter the Sejm. Having won 39.1% of the vote, PiS will take up to 242 seats in the 460-seat Sejm. Until now, only the Democratic Left Alliance (SLD) once came close to winning an absolute majority of seats (it won seats in 2001). PiS fought the election campaign with their deputy chairman Beata Szydlo as candidate for Prime Minister. However, Szydlo – even if eventually elected Prime Minister – is unlikely to enjoy much discretion in her decisions. After it had been widely rumoured that former Prime Minister and PiS chairman Jaroslaw Kaczynski would still pull the strings from behind the scenes, the fact that he (and not Szydlo) was the first to address co-partisans and the press on election night was universally interpreted as a sign of his continued dominance in the party. In 2005, Jaroslaw Kaczynski, too, held back on his ambition to premiership to increase the chances of his twin brother Lech to win the presidential election. However, only half a year later he took over the position of Prime Minister and led the last PiS government until the 2007 elections.

The PO experienced significant losses, not the least due to appearance of the neo-liberal ‘Nowoczesna’ party, but still performed better than predicted by several pre-election polls. It remains by far the largest opposition party with around 133 seats and was thus punished significantly less severely by voters than the Electoral Action Solidarity (AWS) in 2001 or the Democratic Left Alliance (SLD) in 2005. Nowoczesna has not been the only new party to successfully enter parliament. ‘KUKIZ’, the party of Pawel Kukiz – the surprising runner-up of the first round of this year’s presidential elections – gained 9% of the popular vote and is thus the third largest party in parliament (44 projected seats). Two other new parties – KORWIN lead by far-right MEP Janusz Korwin-Mikke and the leftwing ‘Razem’ (Together) seem to have failed to cross the 5% threshold according to national projections. The new electoral alliance ‘Zjednoczona Lewica’ (United Left), made up of the post-communist Democratic Left Alliance, ‘Your Movement’ and a number of smaller leftist parties also failed to cross the electoral threshold (which lies at 8% for electoral coalitions). This is the first time since Poland’s return to democracy that the SLD, is not represented in parliament (and in fact no other left-wing party). The Polish Peasant Party (PSL) is thus the only political party to have been continuously represented in parliament since 1989. Nevertheless, as it gained only 5.2% of the vote according to exit polls it may still find itself out of the Sejm, too.

President Andrzej Duda will certainly not hesitate to appoint a PiS-led government, but it remains to be seen what policy implications this constellation with bring. The last time when both presidency and government were controlled by PiS in 2005-2007, Poland underwent a phase of diplomatic isolation. A strong anti-Russian sentiment (many members and activists still blame the death of late president Lech Kaczynski on Vladimir Putin) and euroscepticism are firmly anchored in the party which will not make Poland an easy partner to work with. Domestically, PiS could once again try to increase state (and ultimately party) control over the judiciary and media – Jaroslaw Kaczynski has long expressed an admiration for Hungarian Prime Minister Viktor Orban, yet at the moment changes as controversial as in Hungary seem unlikely.

Voice of dissent or singing in tune? Visegrad presidents and the refugee crisis

The refugee crisis facing Europe continues to make headlines as more and more refugees arrive at the South-Eastern borders of the EU and European leaders still battle to find a common position, let alone a solution to this problem. This is not my first post about presidents and the refugee crisis, having written about Austrian president Fischer’s intervention in a coalition conflict over managing influx of refugees into the country from Hungary two months ago. In recent months, the Hungarian government of Viktor Orbán has been particularly vocal in rejecting further acceptance of refugees and recently even closed its borders with neighbouring Serbia (having already built a fence along the border). Orban was joined by heads of governments in other Central and East European states, particularly other members of the Visegrad Group (consisting of Hungary, the Czech Republic, Slovakia and Poland) in a refusal to agree on an EU-wide quota system. While the countries’ Prime Ministers have naturally been the dominant actors with regard to the crisis so far, it is worth looking at presidents’ reactions as well given their that their position – irrespective of constitutional powers – also entails the role of moral authority. In this post I contrast and compare the public statements and positions of presidents with regards to the refugee crisis.

visegrad presidents prespow

Presidents of the Visegrad group countries (from left to right): Janos Áder (Hungary), Andrej Kiska (Slovakia), Milos Zeman (Czech Republic) and Andrzej Duda (Poland).

In stark contrast to Prime Minister Orbán, Hungarian president Janos Áder has by far been the least active with regards to the refugee crisis. Apart from stressing that Hungary would only accept refugees fleeing from war and persecution but not those migrating in search of work as well as a joint statement with Slovenian counterpart Borut Pahor calling for a – rather undefined – European solution, Áder has been relatively silent on the issue in public appearances. While addressing the issue once again during his speech at the UN general assembly in September where he called for global refugee quotas that would involve the US, Canada, Australia and China, his visit was dominated by the news that UN general secretary Ban Ki Moon expressed concern about the Hungarian response to the crisis in a meeting with him. Overall, Áder has aligned himself with the government and has given no indication that he disagrees with its policies. Given that Áder belongs to the governing Fidesz party and is a long-time ally of Viktor Orbán, this should not be surprising – Áder has generally not publicly shown himself to be an active check-and-balance on the government (see also my post ‘Hungary – Presidency lost?!‘ from last year). While a significant portion of public opinion disagrees with the government’s policies, they are not part of Fidesz’ electorate. Furthermore, being indirectly elected Áder relies on the parliamentary majority for re-election in 2017 – becoming too active not supporting the government in the current situation would mar his chances to remain president.

Slovak Prime Minister Robert Fico and his government, similarly to his Hungarian counterpart, has been very vocal in opposing a European quota system. Although Slovakia temporarily accepted 500 refugees to ease the pressure for neighbouring Austria and refusing to accept a significant number of refugees. One government spokesperson even declared that the country would only accept Christian refugees as Muslims ‘would not feel at home’ given the lack of mosques or local Muslim population. In contrast to other Visegrad presidents, Slovak president Andrej Kiska’s position comes much closer to that of Germany and some other Western European countries. Kiska expressed support for temporary quotas to distribute the burden among EU member states and stressed the EU’s moral duty to help the refugees. Although his call for doing more about the causes of the crisis in the countries of origin chimed with the argumentation of other Visegrad leaders, he notably refrained from making any reference to cultural issues/religion and stressed that more needed to be done to gain the trust of the Slovak population and make them understand why it is necessary to help. Given that Kiska is popularly elected and not affiliated with any political party (although he can generally be classified as belonging to the centre-right), he has more leeway in contradicting the government than Janos Áder. Nevertheless, national elections are due to be held next spring and taking a position that is ‘too Western’ might put him at odds with some of the centre-right parties on whose support he is planning to build in the next legislature.

The position of the Czech government on the refugee crisis deviates only minimally from that of its Visegrad partners. In early September, Prague hosted the meeting of Visegrad Prime Ministers which resulted in a joint statement for “preserving the voluntary nature of EU solidarity measures” and stating that “any proposal leading to introduction of mandatory and permanent quota for solidarity measures would be unacceptable”. Yet here it is the president whose statements have dominated the headlines. Milos Zeman, who once said Islam was the “enemy of euro-Atlantic civilisation” and likened it to Nazi ideology, recently described the refugee crisis as a “tsunami that was going to kill him“. In his speech at the UN general assembly, he avoided mentioning the topic of refugees directly, yet focussed on the need to military strikes against ISIS. Although Zeman’s comment do not put the Czech Republic in the best light internationally (an issue the government has faced since taking office), the government currently has little motivation to oppose them. Apart from the fact that public opinion in the Czech Republic is on their (and Zeman’s) side, individual members of the government have – at least indirectly – provided similarly controversial commentary on the crisis.

Poland is in a special situation among the Visegrad states as is features not only the most recently elected president but also a government facing re-election in just a month’s time. Although the government has so far shown the same position as other Visegrad members, the governing Civic Platform generally pro-European stance during its time in office and close cooperation with Germany might now – in addition to poor approval ratings which will see it losing the upcoming election regardless – be another factor contributing to its demise. President Andrzej Duda who is affiliated with the right-wing and EU-sceptic ‘Law and Justice’ party which is currently set for electoral victory has so far not produced the best track record in foreign policy. However, by speaking out against the quota system and blasting the “EU dictate of the strong” he has hit a nerve among the Polish electorate and found another way to play a strong role in the election campaign. Furthermore, Duda’s argument against accepting more refugees coming to the EU from its south-Eastern borders has been that Poland was already accepting refugees fleeing the conflict in eastern Ukraine. This points the traditionally Russo-sceptic Polish electorate (even more so the core electorate of Law and Justice where many still blame Russia for the tragic death of president Lech Kaczynski in the Smolensk air crash) to another point where he and his party can score points.

In conclusion, while the governments of the Visegrad states stand relatively united with regards to the refugee crisis, presidents exhibit some more variation. Nevertheless, apart from Slovak president Andrej Kiska they are all basically still singing to the same tune to play to public opinion and appeasing their electorate (be it the public or parliament) or that of their parties.

 

Poland – As referendum is thwarted by low turnout, new president tries to shake up rules of the game

On Sunday, 6 September, poles were called to the urns for the second time this year to vote in a referendum on three largely connected questions. The only common denominator was that the referendum itself was a remnant of the presidential campaign during which incumbent (and now ex-president) Bronislaw Komorowski – shocked by only placing second in the first round and the sizeable vote share won by anti-establishment candidate Pawel Kukiz – tried to sway voters by promising them to decide on said three questions. Just as Komorowski’s bid for re-election failed, so did the referendum as only 7.80% voters made their way to the polling stations. At the same time, Komorowski’s successor Andrzej Duda is trying to shake up the political scene in the run-up to the parliamentary elections in October which – after the president – might also remove the government of the Civic Platform from power.

Results of the Polish referendum on 6 September 2015

Question % Yes
Are you in favour of the introduction of single-member districts in elections to the Sejm? 78.75
Are you in favour of maintaining the current system of state funding of political parties? 17.37
Are you in favour of introducing the principle that uncertainty about the interpretation of the tax code should be resolved in favour of the taxpayer? 94.51
Turnout: 7.80% (outcome invalid/not binding; threshold 50%)

In the referendum, voters were asked whether they favoured the introduction of single-member electoral districts for parliamentary elections to the Sejm, the lower and politically significant chamber of the Polish parliament (Poland currently uses preferential voting in multi-member districts; elections to the Senate are already being held SMDs). The reason for this question is the fact that one of Pawel Kukiz’ (admittedly few) campaign promises was the introduction of such a system – officially to increase accountability of deputies towards voters. The two other questions were likely aimed to pander to the general public. The public financing of political parties has long been a subject of debate in Poland. The Civic Platform – Komorowski’s former party – even did not formally register as a party for several years, thus making them unable to claim state subsidies, to demonstrate their opposition to state financing of political parties. The last question referred to the interpretation of tax law in favour of the taxpayer; however, the Sejm already passed a bill to that effect on 10th July (i.e. after the referendum was already scheduled and Komorowski lost the run-off to Duda) so that it’s only function now would have been to remind citizens of the government’s ‘good deeds’.

The low turnout which eventually rendered the outcome of the referendum invalid had been expected by many analysts and politicians. The outcome also stresses the fact that Poles – while voting for Pawel Kukiz in suprising numbers (20%, the best result of a third-placed candidate in Polish presidential elections) – did not actually want the introduction of SMDs. Kukiz political movement ‘Kukiz 15’, once predicted to win as many as 20% of votes in the upcoming parliamentary elections has recently dropped to just 6% in the polls and the results of the referendum might well have delivered its death sentence. Interestingly, the fourth-placed presidential candidate, far-right MEP Janusz Korwin-Mikke (4.40%), and his newly formed party KORWIN have also failed to gain significant support – the latter is currently predicted to receive between 2-3% of the vote. Last, fifth-placed candidate Magdalena Ogórek, rumored to aim for a safe list place rather than the presidency during the course of the campaign, has disappeared from the political scene and will not run for parliament.

While other parties might struggle to enter parliament or will at least experience significant losses, ‘Law and Justice’ (PiS) the party of president Duda has been leading in the polls for months. Yet Duda’s first month since taking office has not been without controversy. During his first official foreign visit to Germany, Duda tried to propose a new format for talks about the Ukrainian crisis which was quickly panned and its necessity questioned by all parties involved. While the Polish has a formal role in foreign and defence policy, his initiative was also generally negatively received as overstepping established boundaries between governmental and presidential responsibilities. It later emerged that Duda had also told his German counterpart Joachim Gauck that he did not consider Poland to be a state where everybody was treated equally, triggering another wave of criticism. Duda’s latest gaffe – although it is likely that this was planned in order to appeal to the PiS core electorate – was when he refused to shake hands with Prime Minister Ewa Kopacz during the commemorations of the outbreak of the WW II in Danzig.

Up to this point, Duda has is far from being a non-partisan president but his actions are almost reminiscent of PiS’ last president Lech Kaczynski and the 2005-2007 period when PiS-led governments led to Poland’s increasing isolation in foreign affairs and the questionable use of administrative resources and the judicial system against political enemies. Most recently Duda’s request to the Polish Senate for another referendum – to be held on the same date as the parliamentary elections and covering question ranging from the state retirement age and the management of state forests to the school starting age and thus mostly relating to changes introduced by the current government – was still denied. Nevertheless, the fact that letters still sent to his predecessor were sent back with a stamp ‘This person does not work in the Presidential Office’ rather than answered, shows how quickly Duda and his people have changed the character of the institution.[1] Duda has already declared that he will campaign on behalf of his party in the forefront of the parliamentary elections in late October, but (as always in Polish politics) it is too early to tell how his activism will impact on its electoral fortunes. On the one hand, PiS might benefit form the coattail effect; on the other hand, the Civic Platforms recently announced decision to co-opt several well-known conservative and left-wing politicians on its list might still sway voters in the other direction.

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[1] Interestingly however, the head of the important legal and institutional department and the presidential office’s longest serving employee, Andrzej Dorsz, who under Lech Kaczynski had still been banished to head the archive, has so far remained in his place.

 

Poland – Incumbent Komorowski loses second round of presidential elections to opposition party challenger

On Sunday, 25 May, Poland held the second round of presidential elections and elected Andrzej Duda, a 42-year old MEP from the right-wing ‘Law and Justice’ party (PiS), thus ousting incumbent president Komorowski. Although Komorowski had gone into the presidential race as the clear favourite he was only the runner-up in the first round two weeks ago and failed regain sufficient ground in the run-off. The election of Duda hails a new phase cohabitation with the government of Ewa Kopacz (Civic Platform – PO) and is likely to influence to outcome of the parliamentary elections in October this year.

Election winner Andrzej Duda (PiS) celebrates with his family | © andrzejduda.pl

The victory of Andrzej Duda in the first round was a hard blow for incumbent Komorowski who left his election party (together with Prime Minister Ewa Kopacz and other VIPs) shortly after the announcement of the first exit poll. While his challenger Duda celebrated and immediately returned to his campaign on the ground by giving out coffee to commuters in Warsaw the next morning, Komorowski – whose camp was visibly unprepared for the result – waited until later in the day to pick up his campaign. He initiated a referendum on the introduction of single-member electoral districts – which had been one of the key propositions of third-placed candidate Pawel Kukiz – and the abolition of party financing by the state as well as the interpretation of tax law to the taxpayer’s benefit. Although presidential activism for campaign purposes not unheard of – some authors have suggested that part of presidents’ incumbency advantage stems from their ability to affect or avert policy change – the initiation of such a step almost immediately before the run-off appears to be unprecedented in Europe. Overall, the referendum (now likely to be held in early September this year) together with the following negative campaigning were evidence of desperation on the part of Komorowski’s team.

In another (somewhat surprising) turn, however, Komorowski emerged as the winner of the two TV debates held between him and Duda on 17 and 24 May. Yet the president eventually failed to sway voters and grant him another term. On the evening of the election, the publication of exit polls and results was delayed by 90 minutes after a polling station had to be momentarily closed following the (natural death) of an 80-year old woman and the voting time for the 600-odd voters in the district was extended. [1] Duda eventually received 51.55% of the vote (increasing total votes from 5,179,092 to 8,630,627) and Komorowski 48.5% (increase of total votes from 5,031,060 to 8,112,311) at a turnout of 55.5%, slightly up from the 2010 election. The results of the exit poll suggest that Duda not only managed to receive the majority of votes from third-placed candidate Kukiz and other right-wing candidates, but also from those who voted for the PSL (which has been the PO’s junior coalition partner since 2007) in the last parliamentary elections.

presidential elections in poland 2015 - result 2nd round

Duda’s election is the beginning of another phase of cohabitation between president and government. Duda has shown himself to be significantly more critical towards the EU and neighbour Germany (although German-Polish relations have flourished since Duda’s party left the government in 2007) as well as more hawkish towards Russia. Given the president’s role in international affairs, this may well lead to conflicts with the government. During the election campaign, Duda also promised to reverse the increase in the retirement age, yet while he can suggest legislation to parliament, such a bill would be unlikely to pass. Nevertheless, given that Duda will only be inaugurated in August, there will be little time for conflict before the parliamentary elections scheduled for October.

Current polls still see Prime Minister Kopacz’s PO and Duda’s PiS neck-to-neck with a third of the vote (these numbers have however been fluctuating with PiS seemingly pulling forward in the last weeks). Duda’s victory has now given a boost to his party which – after only a brief stint in government between 2005 and 2007 – has spent most of its existence in opposition and could now get into office on its presidential tailcoats. However, there are still two major unknown factors in this equation. First, it is not clear which role a potential political movement led by third-placed presidential candidate Pawel Kukiz will play – some polls suggest a potential of up to 20% of the vote (equivalent to his first round vote share) and unless the political left manages to join forces, might receive most if not all of the sizeable protest vote. Second, a PiS spokesperson announced that Jaroslaw Kaczynski would be PiS candidate for Prime Minister. Kaczynski – PiS Prime Minister 2006-2007, twin brother of the late president Lech Kacynski and presidential candidate in 2010 – is an icon of the political right, yet also one of Poland’s least popular politicians. In the end, his candidacy for Prime Minister might therefore do more to mobilise his opponents than his supporters.

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[1] This is normal practice in Poland and similar delays (albeit due to the lack of a sufficient number of ballot papers) have happened in parliamentary elections before.

Full results can be found on the website of the Polish Electoral Commission (in Polish):
http://prezydent2015.pkw.gov.pl/325_Ponowne_glosowanie

Detailed results of the exit polls can be found here (in Polish):
http://www.tvn24.pl/wybory-prezydenckie-2015,117,m