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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.

Austria & Germany – The pocket-veto power of Federal Presidents

The majority of European presidents (as well as presidents in most other countries around the world) possess at least some role in the legislative process. Typically, this is the right to veto legislation, i.e. send bills back to parliament (usually with comments/sometimes with proposed amendments) where they are then discussed again. Two prominent exceptions are Austria and Germany where presidents do not formally have the right to refuse their signature.[1] Nevertheless, the interpretation of the respective constitutional stipulations is not clear and it can be argued that they possess a form of pocket veto.

Austrian president Heinz Fischer is the only Austrian president to date who has refused to sign a bill despite having no specific veto power |photo via wikimedia commons

At first glance, the stipulations of the Austrian and German constitutions about the final stages of the legislative process appear relatively simple and are almost identical – once a law has been passed it is signed and promulgated by the president (see table below) and the constitution do not foresee a presidential right to refuse the signature. Constitutional scholars in both countries have however argued that presidents may still refuse their signature under certain conditions, although the debate here has not reached a definite conclusion.

Austrian Constitution – Art 47 (1) The adoption of federal laws in accordance with the constitution is authenticated by the signature of the Federal President.
German Basic Law – Art 82 (1) Laws enacted in accordance with the provisions of this Basic Law shall, after countersignature, be certified by the Federal President and promulgated in the Federal Law Gazette.

The main point of contention is hereby the fact that both constitutions do not simply stipulate that presidents sign adopted laws but that they sign laws enacted/adopted in accordance with the respective constitution. For most scholars it is clear that presidents should be allowed to refuse signature to bills (or might pursuant to their oath of office to protect the constitution even have the duty to do so) if there were any procedural errors in any part of the legislative process. This could for instance be that the bill was not passed with the required majority or that the draft did not go through all three readings (correcting such procedural errors is interestingly also a not infrequent reason for ‘ordinary’ presidential vetoes in other European countries).

A significant minority of experts however argues that presidents do not only have the right to check the violation of procedural rules before they sign the bill (and refuse signature if they find any) and assert that the term ‘in accordance with the constitution’ needs to be interpreted more widely. Presidents should therefore also be allowed to review the constitutionality of bills with regard to further stipulations and only sign the bill if there are no ‘obvious’ violations (i.e. presidents and their administration should still not perform an in-depth legal analysis). In Germany, this group of scholars is further divided between a larger group that argues that the president should only check the bill for violations of the ‘fundamental rights‘ and a smaller group supporting an all-encompassing review power. Nonetheless, all scholars agree that presidents cannot refuse to sign bills for political reasons or non-legal objections to the content of legislation.

As there are no provisions that would allow presidents to return the bill to parliament (and for parliament to pass the bill again without introducing it again as a new draft), even the dominant ‘procedural’ interpretation of the respective stipulations can be seen as a form of pocket veto. From 1949 until now, presidents in both countries have only extremely rarely tried to exploit these constitutional ambiguities. German presidents have refused their signature on 6 occasions so far [2] and there has only been one case in Austria. In all cases, the refusal to sign the bills was clearly triggered by very obvious procedural errors or violations of basic constitutional principles. Nevertheless, the practical relevance should not be underestimated.

Although German presidents have only refused their signature under a bill once every ten years, the possibility of the president’s refusal to sign a bill accompanies most debates about controversial legislation, e.g. the recent passage of new regulations on the remuneration of members of the Bundestag. Even by delaying the signature under a bill and speculating about a pocket veto, presidents might able to extract concessions on related legislation in the future. In Austria, incumbent president Heinz Fischer was the first refusing to sign a bill, meaning that even after 60 years of constitutional practice in which presidents routinely played a subordinate role to the government president are able to curb out new powers.  Furthermore, similar to Germany the possibility of a pocket veto has also become part of Austrian debates about legislation.

For now, it is unlikely that parliaments or governments in either country will approach constitutional courts to have presidents’ compentencies clarified as it is possible that the court will provide unfavourable interpretation of the constitution and extend presidential powers. Nevertheless, at the same time the fact that a decision could also be taken in parliaments’ or governments’ favour should ensure that presidents do not use their power more frequently.

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[1] The Slovenian president also has no veto power, yet regulations differ from the Austrian and German examples.
[2] Tavits, Margit. 2008. Presidents and Prime Ministers. Do direct elections matter? Oxford: OPU. p 81.