Upholding the Rule of Law: Will Poland Survive the Siege on its Judiciary?

Upholding the Rule of Law: Will Poland Survive the Siege on its Judiciary?

. 7 min read

After the fall of communism in Europe, many scholars and political analysts thought Poland had the best chances for a successful democratic transition. However, the Polish government of the modern era has taken a different path. The right-wing Law and Justice party (PiS), which assumed power after the 2015 elections, regularly censors media outlets, prevents freedom of assembly, and tries to restrict the activities of non-governmental associations. Perhaps the greatest threat to Polish democracy is the PiS’s unrelenting attack on judicial independence, a move that could summon sharp criticism from the European Union.

What explains Poland’s departure from the path to democracy? How could a country built on democratic values suddenly descend into illiberal populism? Is the shift in Polish governance a symptom of a broader retreat from the rule of law? The rise of PiS, driven by its leaders’ commitment to wealth redistribution, its lack of political opposition, and Poland’s long history of territorial division, now marks the country’s descent into populism that now threatens to weaken the rule of law and place Poland’s membership in the European Union in danger.

Judgment Day for the Judiciary

On January 11, 2020, thousands of judges and lawyers took to the streets, protesting against Poland’s proposed judicial reforms:  the newly minted PiS party leaders had packed Poland’s highest court, the Constitutional Tribunal, with judges loyal to the current administration. They also took control over the National Council of the Judiciary, the body of government with the power to appoint new judges. A bill passed this February mandates that judges who criticize the new government’s judicial appointments and reforms will be punished.

Party officials have spun the reform as a revival of the judicial system. They argue that the courts are filled with incapable, corrupt judges who need to be removed in order for the Polish government to be restored. “What is happening is a deepening of democracy,” said Polish President Andrzej Duda. “The judges will no longer rule themselves. They aren’t some extraordinary caste; they are servants of the Polish people.” However, this narrative seems to be a cover to hide the party’s actual motivations for passing the reforms. By clearing the courts of any judges who oppose party reforms, the PiS will essentially eliminate judicial independence.

Judicial independence refers to the concept that a nation’s court system must remain free from any outside influences that could sway judges to render judgments based on factors unrelated to the case being decided upon. As John MacMenamin, a judge on the Irish Supreme Court, puts it, “If judges are not independent, they are not judges.” If Polish judges know they will face punishment for criticizing the PiS, they will likely rule in favor of the PiS because they fear the consequences of ruling in the opposite direction. By packing the courts with judges loyal to the party, the PiS will continue to chip away at any checks on its power, and as history has shown us, unchecked power is a recipe for authoritarianism and the death knell for democracy.

The Narrative that Propelled the Rise of Law and Justice

The Law and Justice judicial reforms, while uniquely destabilizing for Polish democracy, reflects a broader transition to populism in the country. The 2015 electoral victory stands out as a major milestone in this transition, since it marks the first time since Poland’s independence in 1989 that a left-wing party does not control the government. However, the story of how the PiS was able to rise to power begins long before the fall of communism.

During the 18th century, Poland was partitioned three times by Russia, Prussia, and Austria: once in 1772, once in 1793, and once in 1795, respectively. After the final partition, Poland ceased to exist as an independent state until 1918. Poland was again defeated by an outside power in 1939, except this time, it surrendered after being invaded by Nazi Germany. Poland remained under communist leadership until 1989, when the Polish labor union Solidarity finally forged an agreement to create an independent Poland.

However, this pact with the former communist government created a power sharing agreement in which some of the former party leaders received amnesty. The members of Solidarity who despised communism and championed the ideals of liberal democracy scoffed at the agreement, which they thought gave too much power to the old elites.

Thus, the foundation for the eventual victory of Poland’s incumbent party, Law and Justice, was laid. The narrative that spurred the party’s victory was ultimately a result of continued animus about the agreement with the communist government, religious conservatism, xenophobia, and national sentiment that some Polish citizens had been excluded from the nation’s recent economic gains. Referencing the Partitions of Poland, the invasions of World War II, and communist rule, PiS leaders argued that Poland had long been the victim of outside intervention, and the country desperately needed to re-assert its national identity. The party has now created “LGBT-Free” zones, asserted Catholic values, and criminalized suggestions that Poland aided in perpetuating the Holocaust. These attacks on minority populations are part of the PiS strategy to present itself as the defender of a nation that has long suffered at the hands of outsiders. Leaders subsequently demonize anyone who opposes the PiS as an enemy of the people.

The current leader of Law and Justice,  Jaroslaw Kaczynski, drew on this narrative in order to justify reforms that erode judicial independence and the rule of law. He said that the pact created in 1989 benefited liberal elites at the expense of the common people, and the current court system only serves the interests of these wealthy elites. The courts cannot serve the masses unless they are a reflection of the party, and the only way for the courts to be a reflection of the party is by banning judges from engaging in any acts of opposition.

However, this narrative alone cannot explain why the PiS rose to power when it did. Since division and outside invasion were already deep set after Poland broke free of communist rule in 1989, why was it only in 2015 that a party like PiS acquired a majority in government?

Empty Pocketbooks and a Weak Opposition

While Poland’s history explains why the PiS formed its central narrative the way it did, financial concerns and the weakness of the opposition explain how the party was able to come to power more recently. The PiS offered 500 zloty, or the equivalent of US$130, per month to each child in a family. While some die-hard PiS supporters would have voted for the party regardless of this financial policy, this offer of expanded childcare allowed it to attract voters who might normally be wary of voting for an administration that embraces anti-democratic values. As one reluctant PiS voter said, “500 zloty, even though I am against that kind of government spending, is sometimes helpful.” Since the opposition emphasized infrastructure spending over childcare, voters had no choice but to vote PiS if they wanted this expanded financial support.

The Global Happiness and Political Attitudes Survey, after conducting  thousands of interviews in 15 different countries, found that 37 percent of people say that their children’s happiness is the most important part of their lives. They concluded that the rise of populism can be attributed to widespread government failure to prioritize its citizens’ happiness. It is not a complete surprise, then, that the expanded childcare benefits offered by the populist PiS gave the party a significant upper hand over the opposition.

Besides failing to promote a welfare state popular with a wider constituency, the opposition faced two more roadblocks. First, it is not clear who leads the opposition to Law and Justice. The most common response polls that asked Polish citizens who was the leader of the opposition was either “don’t know/hard to say” or “no clear leader.” In one poll, the officials that received the most votes included  Donald Tusk, the President of the European Council, and Robert Biedron, an outgoing mayor at the time the poll was conducted, neither of whom were even involved in Polish domestic politics. Secondly, while the PiS has a well-defined narrative, the opposition cannot say the same. Their strategy is to build their platform on being anti-PiS and to criticize the incumbent party for any scandals that emerge. However, this method is ineffective when the PiS has been proposing popular policies such as expanded childcare, which the opposition cannot criticize without losing support.

Thus, the opposition, unable to counter the increasingly powerful PiS, was defeated. One might argue that the opposition is making a comeback given their performance in the most recent elections, where it gained a narrow majority in the upper chamber of parliament. However, this slight gain can hardly be called a true win for the opposition, or a sign that it will prevail over PiS, especially given the current court reforms. As long as Law and Justice maintains control over the Supreme Court, there may not be checks on an invalid election, meaning that the opposition will face an uphill battle to achieve a decisive victory.

The Effects on Foreign Policy

One might wonder if the Law and Justice party’s firm grip on the levers of power and its concerted effort to alter the judiciary in its favor have any implications for global politics. There is no clear answer, but PiS reforms will threaten its status in the European Union (EU).

The bill to punish judges who oppose the PiS has sparked concern in the EU. A few politicians have proposed suspending some financial grants to Poland if it fails to promote the rule of law. “You can’t be a member of the European Union if you don’t have independent, impartial courts operating in accordance with fair trial rule, upholding union law,” said Koen Lenaerts, the President of the European Court of Justice.

Whether or not the EU will attempt to censure Poland, or whether Poland will leave the EU, is all up for debate, but one trend is clear: Poland’s withering support for the rule of law reflects a broader European battle with populism. A long list of countries, including Hungary, Italy, and Germany, have all seen the rising popularity of right-wing parties in recent years, and concerns about the survival of the rule of law are not limited to Poland. Hungary’s Prime Minister, Viktor Orban, has placed restrictions on non-governmental organizations, media, and the courts that have all faced criticism from members of the EU. Until political parties restore voters’ trust that strong liberal institutions can secure their happiness and well-being, democracy will have to play defense.