Dismantling Checks and Balances (II): Judges and Prosecutors

After transforming the Constitutional Tribunal (CT) into an active ally of the government, the Law and Justice (Prawo i Sprawiedliwość (PiS)) party in Poland embarked upon the comprehensive subjection of the entire judicial system to the executive, and in particular to the president of the Republic and the minister of justice/prosecutor general (MJ/PG). This chapter discusses how, for this purpose, the National Council of Judiciary (Krajowa Rada Sądownictwa (KRS)) was packed with the party faithful thanks to a changed system for selecting members of the KRS (they are now directly elected by Parliament, rather than by judges). It also deals with how the effect of the new law on the Supreme Court was a brand new court composition with a pro-PiS majority: this was created by combining early retirement for incumbent judges and increasing the number of seats on the Court. The chief justice’s constitutionally guaranteed term of office has been extinguished. It also looks at another statute, on the common courts, that has strengthened the power of the MJ to control court presidents, and hold judges accountable for their verdicts through a new disciplinary procedure. Finally, the chapter looks at how the prosecutorial system (prokuratura) was merged with that of the MJ, with the MJ becoming the ex officio PG, producing a deeply politicized system of public prosecution.

Why Did It Happen?

This chapter discusses the causes of Poland’s constitutional breakdown in and after 2015. On the one hand, they have an ‘agentic’ character: the role of the paranoia and anger of political leaders cannot be disregarded. In addition to such supply-side explanations, there are also important demand-side hypotheses, linked in particular to anti-elite and xenophobic attitudes, concerns and fears. As the chapter shows, in the case of Poland, the most important role is played by identity-related concerns, rather than socio-economic vulnerabilities. In turn, persistent support for the populist Law and Justice (Prawo i Sprawiedliwość (PiS)) party can be explained by its successful even if irrational welfare policies, by its effective if primitive propaganda, and by the weaknesses of the opposition. This leads to a reflection on the fragility of the institutions. As this chapter argues, partly because of its newness, partly because of faulty institutional design, and partly because of the thinness of democratic political culture among the elite and in society at large, the institutional system of Poland was ineffective in blocking anti-constitutional parties’ access to power.

An Assault on Individual Rights

Since coming to power, the Law and Justice (Prawo i Sprawiedliwość (PiS)) party has not engineered any massive breaches of individual rights, but its effective dismantling of checks and balances renders such an assault possible at any time. Selective infringements of rights have, however, occurred. This chapter describes restrictions on the right to assembly, mainly instituted by a new statute privileging so-called cyclical assemblies; on freedom of speech, evident in the law punishing ‘inappropriate’ statements about Holocaust crimes on Polish lands; and on privacy rights through uncontrolled surveillance, evident in the new law on police and anti-terrorism.

Undoing the Institutions of the Democratic State

This chapter covers how, from the very beginning, the Law and Justice (Prawo i Sprawiedliwość (PiS)) party targeted five democratic institutions as obstacles to its capture of the state. First, it looks at the parliamentary opposition being marginalized and effectively silenced. Second, it details how the civil service has been subjected to political control, and the principles of professionalism and neutrality in the civil service have been abandoned. Third, the chapter looks at the public media being transformed into a propaganda machine for the ruling party, and the commercial media being threatened with laws that would constrain their operation. Fourth, it considers how electoral commissions have been effectively subjected to the executive, which renders massive electoral frauds possible. Finally, the chapter looks at how institutions dispensing grants and subsidies to civil society organizations have been centralized and subjected to the executive. All these institutions provide a buffer for the population from the arbitrary will of politicians, which is why PiS could not tolerate them.

Dismantling Checks and Balances (I): The Remaking of the Constitutional Tribunal

This chapter reveals how, until 2015, the Polish Constitutional Tribunal (CT) was an important counter-majoritarian measure, effectively constraining the legislative and executive branches, and policing the operation of Poland’s democratic system. It discusses how, after the Law and Justice (Prawo i Sprawiedliwość (PiS)) party came to power, it disabled the CT through legislative bombardment, involving the enactment of numerous laws meant to paralyse its operation, and through court packing, including openly unconstitutional means. Once the pro-PiS judges (including ‘quasi-judges’, illegally appointed) gained a majority in the court in December 2016, the CT transformed from a paralysed, powerless institution into an active government aid, assisting it in its campaign to dismantle all checks and balances and limit civil rights. This chapter records a number of judgments handed down after 2016 that illustrate the role of the CT as an active, indeed enthusiastic, enabler. In addition, new judges have been active in their extra-judicial roles as supporters and defenders of the government. This must be seen against the broader theory of constitutional courts as an ‘insurance policy’ for the current majority. The transformation of the CT in Poland may suggest that the current rulers do not seriously envisage the prospect of losing power.

Afterword

While the developments described in the book give great cause for concern, there are nevertheless some democratic resources that may justify moderate optimism: Poland has a lively and pluralistic commercial media, vibrant civil society, individual courageous judges, the Ombudsman, etc. Furthermore, populism often carries seeds of self-destruction. This short concluding chapter ends with an “authoritarian playbook” illustrating the steps that the governing populist party have followed in consolidating its power. But knowing this playbook is useful not only to would-be and actual autocrats: it is also illuminating to those who advocate resistance to today’s enemies of democracy.

Illiberal Democracy or Populist Authoritarianism?

Poland’s constitutional breakdown of 2015 constitutes an interesting, if unfortunate, case study of the relationship between populism and democracy, and the related concept of ‘illiberal democracy’. Without generalizing this finding, the chapter argues that in Poland, illiberal democracy is largely an oxymoron. By dismantling various checks and balances, and the many democratic institutions related to elections and judicial review, the ruling party greatly weakens the democratic character of the state. The temptation to consider Poland as a case of ‘political constitutionalism’, in contrast to ‘legal constitutionalism’, should be resisted. The chapter considers how Poland lacks many of the democratic prerequisites critical for ‘political constitutionalism’. The Polish variant of populism is aggressively anti-pluralistic, anti-deliberative, and hostile to minorities. The system can be better described as that of ‘plebiscitarian authoritarianism’. It is also antithetical to the ideal of the rule of law, in particular in its disregard for the various unwritten clauses (constitutional conventions) supplementing the constitutional text.

Europe to the Rescue

The Council of Europe (CoE) and the European Union (EU) possess significant legal instruments to affect and reverse anti-democratic changes in Poland, and some of these instruments have already been used, with varying degrees of success. The chapter opens with the CoE’s, and in particular the Venice Commission and the European Court of Human Rights’ contributions to policing Polish assaults on the rule of law. It then turns to the EU, and reflects upon the question as to whether the EU—with its assortment of different measures of ‘naming and shaming’ (Art. 7.1 Treaty on European Union (TEU)), sanctions (Arts 7.2 and 7.3 TEU), and legal infringement actions, as well as its newly crafted ‘rule of law framework’ (also known as the pre-Article 7 procedure)—has been so far, and can be in the near future, effective in cabining and reversing anti-democratic trends in one of its largest member states. The conclusion is affirmative: the EU has an important, even if limited, role to play in assisting Polish defenders of the rule of law and democracy.

Before the Breakdown: 1989–2015

This chapter discusses how the recent changes in Polish constitutionalism should be seen against the background of post-communist transformations, after the fall of communism in 1989. It notes that the Round Table agreements of that year were a true constitutional set-up, and were marked by a bargain that enabled a peaceful transition. Bicameralism and semi-presidentialism have their roots in this original compromise. In contrast to many other post-communist states, the chapter shows how the process of constitution-making in Poland was drawn out. Until the Constitution of 1997, the country’s constitutional structure consisted of (1) the constitutional arrangements of the Round Table, (2) the ‘Small Constitution’, and (3) the case law of the reinvigorated Constitutional Tribunal. The process of constitution-making was as important as its outcome, and was marked by multiple compromises. The Constitution of 1997 is then described, with its special emphasis on semi-presidentialism, state-church relations, and a bill of rights containing ‘generous’ socio-economic rights. The first period of Law and Justice (Prawo i Sprawiedliwość (PiS)) rule, in 2005–7, was marked by various hostile acts against this constitutional structure, but with no attempts at institutional dismantlement. Between 2005 and 2015, and especially after 2010, a growing political polarization was displayed, consequently weakening the constitutional consensus.

Anti-constitutional Populist Backsliding

This chapter provides a general overview of the post-2015 changes in the Polish state. It demonstrates that they proceeded in an incremental way, without any clear ‘breaking point’. The most nefarious consequences stemmed from the cumulative effects of different changes, often with formal institutions intact, but which were hollowed out of their original function as checks and balances on the legislative and executive branches. Largely, it emulates similar changes in Hungary, except that in Poland, the ruling party has no majority sufficient to pass through constitutional changes. The chapter further argues that, overall, the negative transformation can be described by using three characteristics. First, it is unconstitutional because there have been multiple breaches of express constitutional provisions, constitutional conventions have been disregarded, the constitutional structure has been amended through statutory changes, and the real centre of political power is different from that constitutionally designed. Second, it is populist, in that the ruling elite cares a great deal about popular support, and uses traditional populist devices such as pretending to speak on behalf of the whole nation, and dismantles various institutional mechanisms of the separation of powers. Third, it constitutes backsliding, because trajectory and path-dependence are crucial to understanding Poland’s current state.