The recent accession of the right-wing Law and Justice Party (PiS) to power has seen the judiciary and legal systems in Poland struck by swift and far-reaching reforms, and the trend shows no sign of slowing. With the phrase “constitutional crisis” being increasingly heard, it is time to examine what is happening to the legal system in Poland.
On Saturday, January 9, 2016, people in Poland and Poles around the world once again protested the actions of the incumbent government led by Prime Minister Beata Szydło, the parliamentary majority, and President Andrzej Duda. The current situation has already earned entries in both Polish and English Wikipedia under the term “constitutional crisis.” As presented in the international press, the crux of the current constitutional crisis in Poland seems to be an assault by the executive and legislative branches, both controlled by the Law and Justice party (better known by its Polish acronym PiS), on the judicial branch in general and the Constitutional Tribunal in particular. Although this description is not incorrect, it lacks a few elements. Legislation has been passed at a pace that does not allow members of parliament (MPs) even to read the project proposals. Protests by the parliamentary opposition as well as civil society and professional organisations have been bluntly disregarded. As a result, not only has the system of checks and balances been weakened, but State and public institutions have also been taken over and the State hierarchy of power has been substituted for an intra-party hierarchy of power.
What is happening is in fact an attempt at a conservative revolutionary change along the lines of the constitutional project PiS designed a few years ago. However, the typical liberal democratic critique of the current Polish regime fails to note that PiS is doing more than just pursuing power. PiS is pursuing a political project of state building, which must be understood if it is to be resisted in an effective way.
PiS leader Jarosław Kaczynski described his vision in one of his parliamentary addresses. According to Kaczynski, the state needs to be powerful to fight corruption, to provide internal security, and to secure Polish interests in the international arena. Because the old elites and special interests have been entrenched in state institutions, particularly in the justice system, a purge is a necessary first step. It requires far-reaching centralisation, i.e., weakening of the separation of powers. Also according to Kaczynski, the private mainstream media serve the old elites, “function today as if they were a veil on which the movie for the simple folk is screened,” and obscure “the truth” about reality. Thus, “changes in the public media” are necessary.
An important element of Kaczynski’s project is the “renewal and consolidation of the national community.” To be fair, Kaczynski did mention the real wealth disparities between cities and the countryside and among regions as one of Poland’s problems. However, he also stressed a common historical memory and an awareness of certain values that bind the community. Those values are fundamentalist Catholicism and conservatism manifested in hostility toward homosexuality and gender mainstreaming (bundled together under the label of gender ideology). Such a homogenous community aware of its particularity should tolerate “deviations from the norm,” but it should not affirm them.
Assault on the constitutional tribunal
Details of this vision for Poland are in the draft of the constitution proposed by PiS. However, because PiS lacks a sufficient majority to change the constitution, an assault on the Constitutional Tribunal has become a logical element of its state-building project. Importantly, such an assault is also in agreement with PiS’s constitutional design.
Consequently, President Duda refused to swear in five judges to the Constitutional Tribunal that had been selected by a previous parliamentary majority in October. His argument was that the selection of two of the judges was in violation of existing rules. Instead of waiting for a decision by the Constitutional Tribunal, PiS withdrew its petition from the Tribunal regarding this issue after they won the parliamentary elections.
In mid-November, the parliamentary majority passed a statute mandating, among other things, another selection of constitutional judges. The statute had a retroactive effect of nullifying the October selection. Despite protests from lawyers, NGOs, and the Office of the Ombudsman, the statute was signed by the president and proclaimed the next day. Subsequently, the parliamentary majority passed resolutions declaring the October selection of judges as “legally not binding.” In early December, PiS selected five new judges. The process was heavily criticised: opposition MPs were prevented from questioning the candidates, the statute was passed at night, and the president signed it and swore the new judges in before 7AM the next day.
At the same time, responding to the petition of other parties, including the Civic Platform, which had selected the judges in October, the Tribunal affirmed the constitutionality of the selection of three of five judges from October and mandated that the president swear them in. To date, President Duda has not done so, claiming he has already sworn in five judges from the December selection (and thereby violating the Constitution by not carrying out the Tribunal’s decision). On December 9, the Tribunal ruled the statute mandating the second selection as unconstitutional. In an unprecedented action, Prime Minister Beata Szydło initially questioned the decision’s legality and refused to promulgate it in the Journal of Laws. This action by the prime minister may have violated the Constitution, which considers the decisions of the Tribunal to be final and non-appealable and, thus, mandates that they be promulgated by the office of the prime minister.
In the most recent attempt to subdue the Constitutional Tribunal, the parliamentary majority passed and the president signed another amendment to the statute regulating the Constitutional Tribunal. According to the new statute, decisions require a two-thirds majority as well as mandatory and minimal participation of 13 out of 15 judges. Additionally, the new law states that the Tribunal must review cases in order of receipt and mandates a minimum six-month latency period.
If implemented, this law will paralyse the Constitutional Tribunal (an aim, critics say, is the primary goal of the statute). Given current conflict over the composition of the Tribunal, there are not enough judges to constitute quorum. If the Tribunal wants to function (according to the new law, that is) it must recognise the December selection of five judges.
The proposed changes will also slow the review process to such an extent that, by the time any statute gets reviewed, politics and society will have already been impacted. Given the presumed constitutionality of statutes, even plainly unconstitutional laws have to be implemented and carried out until they are officially ruled unconstitutional. But before any law can be reviewed, the court has to review all the other cases it has received and, regardless of the number of preceding cases, wait six months from the date on which the complaint was received to decide on it. Thus, the vicious circle is closed. Echoing comments by many lawyers, the president of the Tribunal said the Court would rely solely on the Constitution during its review to address the possible constitutional effects of the new statute. In response, PiS threatened completely de-funding the Tribunal.
While the struggle continues, we have already seen collateral damage. Recently, PiS decided to partially de-fund the Office of the Ombudsman, owing to the creation of a “deputy for gender” (many prominent PiS MPs are known for their hostility toward “gender ideology,” i.e., gender mainstreaming). Because incumbent Ombudsman Adam Bodnar has been a vocal critic of the actions of the parliamentary majority and the president, the actual reason for this de-funding seems to be quite different.
Winner takes everything
Besides dismantling constitutional limits on the arbitrary exercise of power, the PiS-dominated parliament has proceeded to takeover public institutions. On Thursday, January 7, President Duda signed two important laws: one that regulates the civil service, and the other that regulates the public media. This time, the prime minister’s office did not wait long to promulgate the laws: they were published in the Journal of the Laws the same day they were signed.
The civil service was supposed to check the tendency of treating public offices as a spoil of partisan struggle and to provide a highly qualified and non-partisan body of public officials employed in state bureaucracy essentially insulated from the pressures of changing parliamentary majorities. The former statute prohibited officials from belonging to political parties and required open and public competitions to select personnel for the highest offices (e.g., office directors and their deputies). The statute also listed professional experience requirements as criteria for eligibility of candidates.
However, the new law abolishes the intended professional and non-partisan character of the civil service. All high-level personnel are supposed to be dismissed. The regulations mentioned above are to be nullified: now, government will nominate the directors. Instead of professional experience, partisan criteria may be applied when staffing the offices of the civil service, which is effectively made subordinate to the needs of the parliamentary majority.
The new media law further increases governmental control over the public media. It abolishes existing organs of control and institutes the new National Media Council, whose title requires linguistic parentheses. According to the new law, the public media are supposed to narodowe, which in Polish encompasses the meaning of two English words: national and nationalist. The ideological profile of the Law and Justice party, however, clearly indicates much more of the latter than the former. Members of the Council will now be selected by each of the houses of the parliament and by the president (i.e., by the current PiS party). The statute also dismisses current directors of public radio, public TV, and the Polish Press Agency, whose replacements will be selected by the new Council.
This new media law (also known as the “small media statute”) however, is just a primer for a much more comprehensive takeover (the “large media statute”). According to media reports, the parliamentary majority’s project includes tasks for public radio and TV that will “respect Christian values,” “cultivate national traditions and patriotic and humanistic values,” and disseminate statements and positions of both houses of parliament as well as the president. Most importantly, the “large media statute” mandates massive layoffs of journalists. The new directors of the public — pardon, national — media (i.e., those selected by the Council selected by the PiS) will determine whether to reemploy the sacked journalists, an unlikely outcome given that some of the newly nominated directors have been known more for their right-wing zeal, rather than their journalistic integrity. For example, the chair of public TV is now Jacek Kurski, an ex-chief campaign strategist of PiS who deliberately spread false information about the family of the ex-leader of the Civic Platform, Donald Tusk, to gain support for himself. Specifically, Kurski suggested that Tusk’s grandfather had voluntarily enlisted in the German army during World War II. In one of the leaked private talks, he admitted this was not true, adding “the dumb people” will believe it anyway. This does not leave much hope for the public media being anything more than a propaganda machine.
Additionally, in a less spectacular fashion, the Law and Justice party has taken over the secret service. PiS replaced all heads of secret and intelligence services, and it has abandoned the principle of rotating leadership in the parliamentary commission supervising the secret service. PiS is also attempting to re-merge the offices of the Public Prosecutor General and the Minister of Justice. If the change is carried out, the minister will be empowered to personally influence and interfere with investigations. Just few days ago, the current Minister of Justice Zbigniew Ziobro introduced a bill that, among other things, admits fruits of a poisonous tree as legitimate evidence in court and nullifies the protection against self-incrimination. Another proposed bill increases the surveillance prerogatives of law enforcement.
Substituting the state
Even though Kaczynski is merely an MP (he is not even a formal leader of the PiS parliamentary group, but he is the “president” of the party’s organisation), there is no doubt that it is he who effectively possesses political power. Kaczynski has been the leader of the Law and Justice party since 2003, despite three lost elections (one presidential in 2010 and two parliamentary in 2007 and 2011). Political histories of his internal enemies are also instructive: those who have challenged him within PiS have been kicked out and are now politically insignificant or have had to return to office on their knees. He is the one who unites the right and focuses public support. For this reason, the PiS rank and file are very disciplined.
Recent developments have also tightened Kaczynski’s grip over the party and its political allies. Both President Duda and Prime Minister Szydło have refused to perform their constitutional duties and thus risk trials before the State Tribunal (a judicial body that determines the constitutional liability of those holding the highest state offices) or criminal prosecution. If convicted, both will lose their passive electoral rights. Because parliamentary majority decides whether to prosecute before the State Tribunal, the political futures of both President Duda and Prime Minister Szydło depend on whether PiS is able to maintain political power. Ultimately, both have become Kaczynski’s hostages.
Symbolically, Kaczynski has demonstrated this hierarchy. It was he who met recently with the Hungarian prime minister as “a leader of state” (although the president is constitutionally the head of state). It was also he who presented the grand vision of the modernisation of the Polish state right after Prime Minister Szydło gave her comparably dry inaugural address describing her government’s planned actions.
Two interrelated implications result from this situation. First, there is a mismatch between the constitutionally defined seats of power and the de-facto seat of power. More specifically, because Kaczynski is just an MP according to constitutional order, he cannot be held accountable for violations against the constitution. Second, the constitutionally defined hierarchy of power becomes less important than and in fact circumvented by the relations of subordination internal to the party’s organisation. Effectively, the de-facto seat of power is located outside constitutional order and thus is politically and constitutionally unaccountable.
Prospects for democracy
In his state address, Kaczynski stressed his commitment to democracy. He defined democracy as a political system in which an opposition that is critical of the government can win elections. Although this definition might seem uncontroversial, the political practices of PiS reveal that it is actually a negative condition of democracy: as long as the government is openly criticised and the opposition is not prevented in advance from winning, Poland remains a democratic country per Kaczynski’s definition. At the same time, given current practices of the parliamentary majority, the winner of the elections is given a mandate from the voters to pursue whatever policies it designs, thereby completely disregarding protests and criticisms.
Moreover, the opposition is depicted as defending the privileges it enjoyed under the previous government. And because Kaczynski and PiS have frequently addressed thinly veiled accusations of treasons against the previous government, the current opposition is guilty by association. There are no political adversaries, only enemies. In a peculiar mix of Schumpeterian and Schmittian understandings of democracy, PiS in its political practices has changed elections from a mechanism that creates democratic representation into a plebiscite that regards the ruling elite as personifying the nation.
The authoritarian potential of such political practice combined with the takeover of the state should not be underestimated. The current situation has earned a name in the Polish public discourse: demokratura, a neologism created by merging the Polish equivalents of democracy (democracja ) and dictatorship (dyktatura). This neologism suggests that in Poland illiberal has replaced liberal democracy. However, more than just liberal values, which Kaczynski and PiS explicitly reject, will suffer. Empowerment of the state against society, simultaneous subordination of the state to the party hierarchy of power, and reconfiguration of elections to a plebiscite will reduce the role of citizens in the political process. Institutions and procedures associated with representative democracy will become empty shells. Damages to civic culture and to the legitimacy of its institutions will be difficult to reverse, even if PiS and Kaczynski are defeated in the next elections.
What is to be done?
Although the picture is rather depressing, falling into political defeatism is a luxury Poles do not have. Rather, Kaczynski’s authoritarian attempts must be resisted here and now. Cessation of current authoritarian changes, however, cannot be the horizon of this resistance. Rather, it has to contain a more positive project for moving forward. What follows are four elements of such resistance: the first two present short-run objectives; the second two are long-run.
Civil society pressure: Regular, massive demonstrations are the only way to question the legitimacy of the actions of the current government. This recourse is not only about publicly expressing discontent, but also and above all about empowering society through an act of defiance. When institutional channels are occupied by a party that does not follow constitutional rules, only extra-institutional democratic participation has a chance of being effective in disrupting authoritarian pursuits. Massive protests are also the sine qua non of legitimation of international pressure.
EU pressure: Although Kaczynski and his ministers are hostile toward the European Union, PiS has won promising improvements for quality of life. Without the benefits of EU membership, the government will not be able to achieve those aims. The European Commission already has taken an unprecedented step of submitting Poland to the rule of law monitoring process. Harder steps can be taken, however, including the suspension of Poland’s member state rights and possibly limiting Poland’s access to structural funds. Though no reaction can be ruled out, it is rather unlikely that Kaczynski would risk losing this source of investment funding. Poland, as a member of a confederal structure, is not a sovereign state in the traditional sense of the word; it is a member of a broader constitutional structure that combines shared and self-rule and has to submit to the basic standards of this community or secede. As such, the EU has recourse for setting much-needed boundaries regarding any departure from republican democratic standards.
No return to the status quo ante: There are structural reasons for Kaczynski’s victory — he exploited the dissatisfaction arising from the unequal distribution of costs and benefits within the neoliberal transition. Additionally, recent research has shown that young people socialised under the neoliberal mantra claiming one is the master of one’s success seek to belong to an imagined community of a strong, unified nation operating under a strong, authoritarian leadership. The nationalistic rhetoric and political ruthlessness of Kaczynski and PiS provide a model for what these youth seek. Any attempt to overcome the current crisis needs to address these structural issues. Reinstitution of the status quo ante will only recreate conditions for a similar crisis in the future, but that future crisis might be much more serious given the popularity of the neofascist movement in Poland. Any remedy must include a vision of a tangibly more just society.
A dose of political realism: The structural limitations of the political system must also be recognised. Social protests will be essential for undermining Kaczynski’s capacity to govern and his legitimacy. However, in a representative system (which, despite any misgivings, is here to stay) Kaczynski can be deposed only if another political party is voted into office. The conservative Civic Platform party is busy with its internal factional struggle. The market fundamentalist Nowoczesna party led by the right-wing economist Ryszard Petru presents the most likely candidate, but its program may repeat the mistakes of alienating the disadvantaged.
Rather, it is the responsibility of the (currently) extra-parliamentary left to create an alternative. On the one hand, I believe, a viable alternative requires strong participation by the left in civil society protests. At the moment, these protests are dominated by the liberal right, which works hard to delegitimise PiS by discursively associating it with any kind of redistributive policies. On the other hand, creating an alternative also requires ideational and discursive efforts to reframe the political conflict. The current frame of PiS versus anti-PiS (the most recent incarnation of the “forces of progress versus forces of reaction” division) benefits the liberal right and obscures the structural sources enabling PiS’s success. What is at stake is not only stopping the authoritarian pursuits of one party leader in the short run, but also the future of Polish democracy in the long run.
This article was originally published on Public Seminar.