[UPDATE] On July 20 afternoon, the Polish parliament voted to pass the bill: 235 to 192 with 23 abstentions. Unless President Duda will use his veto, the law will come into effect before the next legislative session.
The current assault on the independence of the judiciary by Poland’s ruling Law and Justice (PiS) party has drawn thousands of people to the streets. This attack has rightly been denounced as undermining the principle of separation of powers and the system of checks and balances. However, rather than interpreting it either as an assault on the republican and liberal democratic principles in the search for unrestrained power, or a blitzkrieg against the courts (the standard liberal democratic criticisms), it should be viewed as an element of a broad and comprehensive regime change. It is the latest – but probably not the last – step in the so-called “good change” PiS have been busy with since their electoral victory in 2015.
Three new statutes (two of them already passed by the parliament and awaiting the President’s signature and one still under parliamentary consideration) will give PiS control over the judiciary. The first bill gives the party effective control over the membership of the National Council of the Judiciary, a constitutional body responsible for judicial nominations. The second bill gives the Minister of Justice the power to appoint chief judges of lower courts. The third, still under debate, completes the takeover: in its current form, the it ends the mandates of all Supreme Court judges – except those whom Zbigniew Ziobro, the Minister of Justice personally allows to stay. The law also creates a “Disciplinary Chamber” within the Supreme Court, which will determine disciplinary actions against all judges in the country; the proceedings will be initiated at Ziobro’s demand. It is important to note that the Minister of Justice is at the same time the Prosecutor General and has the right to personally direct and supervise any investigation he wants.
Half a kingdom to anyone who finds any constitutional justification for any of this.
Half a kingdom to anyone who finds any constitutional justification for any of this. If these three blatantly unconstitutional statutes are enacted, Law and Justice will practically be able to pack the Supreme Court and all lower courts with their loyalists, and will wield a disciplining tool against those who, after being appointed, become too independent and, for example, decide to rule against the prosecution. The reshuffling of the Supreme Court will also give the ruling party the final say (albeit indirectly) in the electoral process – as it is the Supreme Court that investigates electoral irregularities and decides on the legality of elections. Law and Justice, through their Minister of Justice, will be both a player and a referee.
Ever since their victories in the presidential and parliamentary elections in 2015, Law and Justice have (unconstitutionally) appointed loyal judges to the Constitutional Tribunal, they have taken over public media, and introduced tacit partisan criteria in the selection of civil servants.
The Tribunal has already been proven docile. The public media have turned into a propaganda tool of the parliamentary majority. Civil service offices have been slowly staffed with party loyalists. Additionally, PiS have created the “Territorial Defense,” a paramilitary formation subordinate directly to the Minister of Defense. It also changed the school curriculum to reflect and promote nationalistic and fundamentalist Catholic sentiments, which bought the support of the Church with hefty donations. Last but not least, the public assemblies law privileges state-sponsored events, and the to-be-created National Freedom Institute will give the government the control over civil society organizations. Although the statute that effectively allows the central government to dismiss local authorities was vetoed by the Notary Public-in-Chief Andrzej Duda in an extremely rare act of defiance (or a deliberate smokescreen), it does not mean that the desire to subdue local authorities has disappeared.
The recently proposed bills on the judiciary continue the series of changes. Together they concentrate political power in the hands of the incumbents and, as political practice under PiS has shown, drastically tilt the balance of powers towards the executive branch, reducing the legislative to a machine for pushing through statutes, and the judiciary to an enforcer of laws designed by the executive and deliverer of desired rulings. Anyone who has doubts about it should watch the sorry spectacle of shouts and booing on the part of the ruling party’s MPs which took place during the parliamentary debate over the Supreme Court bill, or listen to Minister Ziobro, who determines who is guilty even before the trial ends.
The changes also blur the boundaries between different branches, as the executive extends its reach over the others.
The changes also blur the boundaries between different branches, as the executive extends its reach over others and becomes involved in their functioning. Importantly, and again as recent political practice has shown, in this PiSocracy, elections are reduced to a plebiscite and electoral victory is considered a mandate to pursue whatever policies the winner desires, despite potential opposition and criticism. At the same time, civic engagement is to be limited to cheering at state-sponsored rallies, like the one organized to welcome Donald Trump or the hate shows during the monthlies of the Smolensk crash, and any independence non-governmental associations might have will be diminished.
Law and Justice justifies this regime change as a sine qua non of a fixing and strengthening of state institutions: courts need to be purified from the remainders of communist apparatchiks allegedly still present in the judiciary, local authorities need to be purged of entrenched cliques, the public media need to present an alternative to privately owned outlets serving old elites. To a certain extent, these diagnoses correspond to sentiments among some sectors of Polish society, for whom the state often has the face of an arrogant local judge or a corrupt local official.
Ironically, however, the way in which this change is implemented simply destroys state institutions. In a revolutionary fervor, loyalty to the party is favored over competence – crown examples of which are Julia Przyłębska, the chief justice of the Constitutional Tribunal who does not even have a doctorate in law or Bartłomiej Misiewicz, the ex-spokesman of the Ministry of Defense who has not even finished college despite studying at three different schools. In the propaganda war against the still independent institutions, the regime targets their prestige and legitimacy. Finally, the constitutionally defined hierarchy of power has been replaced by party hierarchy.
Kaczyński remains beyond accountability for the violations of the Constitution performed by his subordinates.
The efforts are coordinated by Jarosław Kaczyński, officially only an MP and the chairman of PiS. His control over President Andrzej Duda and Prime Minister Beata Szydło stems from his grip on PiS’s rank-and-file on the one hand, and his charismatic power over his party’s solid electorate on the other. It is no secret that both Duda and Szydło got their offices thanks to Kaczyński’s blessing and so far it has been clear that their political careers can end at his whim. At the same time, Kaczyński remains beyond constitutional accountability for the violations of the Constitution performed by his party subordinates.
The three statutes subordinating the judiciary to the government have not yet been enacted, and, given recent declarations by Andrzej Duda (who seems to have remembered that he is not a notary public but the President who, as the Head of State, has the power to veto), they might not be implemented in their most egregious forms.
Nonetheless, the watered down versions of the bills will not save the independence of the judiciary. The opposition faces a difficult double task: on the one hand, it needs to do everything that is possible to stop the changes introduced by an opponent who seems not to care about criticism. On the other, it needs to come up with ways to restore constitutional culture. Otherwise, even if the PiS’ rule miraculously turns out to be brief, the legacy of “good change” may taint Polish politics not for years – but for decades to come.