Poland’s Judiciary is Broken (and could take down the EU)

By Linus Hoeller, Northwestern University

Once seen as a poster child of post-communist democratic development, over the past half-decade, Poland has become the opposite: A prime example of democratic backsliding, the erosion of a fragile democracy and the imposition of what some describe as attempted authoritarian rule by a right-wing, nationalist party.

Central to the ruling Law and Justice/United Right (PiS) party’s approach to securing its continued influence over the country’s politics has been the erosion of the country’s independent judicial system. While Warsaw is not alone in being home to an illiberal government at odds with the European Union it is a part of — Budapest has been leading the charge in that regard since Fidesz took power in 2010 — its approach is rather unique. While Hungary’s Órban put a heavy and early emphasis on curtailing civil society, until recently, the Polish government undertook a much more judiciary-focused — and often less noticeable — consolidation of power.

Poland’s legal system today is not independent. In fact, now, it would almost certainly not meet the standards required for joining the European Union. Freedom House, which annually ranks countries’ freedom based on numerous factors, awarded Poland’s judiciary a score of just one of four when it comes to independence in its 2021 report. PiS has established far-reaching control over both judges within the system, and the rules and procedures that control how this nominally separate branch of the government can and must act.

PiS swept to power in 2015 following an upset election that ousted the “establishment:” The center-right, EU-friendly Civic Platform party, which lost more than 15% of voter support compared to the prior election. Voters handed PiS an outright majority in parliament — meaning that the party could pass legislation without having to compromise as part of a coalition, the usual constellation in European representative democracies.

It was a decided shift to the right for Poland, a strongly traditional, religious and conservative society but one that some had seen as embracing the liberal ideals central to the European Union it had joined in 2004. The election of PiS shattered any such illusions and made it clear that at least a sizeable chunk of the population (and one that could dominate the political sphere) remained skeptical of the liberal European project, favored stronger ties between state and church, and subscribed to the story of achieving a strong nation under a strong vanguard party.

PiS wouldn’t wait long to act on this vision and ensure that going forward, it would have systemic advantages over any parties that might want to challenge its rule. It was the courts that the new ruling party’s politicians and strategists singled out as the place where PiS could inextricably weave itself into the fabric of the Republic.

In 2017, just halfway through its first term in power, PiS passed a number of significant laws which it billed as judicial “reforms,” but served primarily the purpose of absolutizing the party’s power. From now on, it would be the party and its justice minister who decided who led the courts, and who held a majority in the panel that confirmed new judges. These changes were disguised as an overhaul to a system that was perceived as slow and corrupt, making them even quite popular in some circles, while also being kept somewhat away from the public spotlight. By giving them the veneer of mundane legislative “housekeeping,” PiS ensured that the public response was mostly muted at best.

There was a somewhat larger outcry in 2018 to a change that would have forced more than 20 of the Supreme Court’s judges to retire early (unless the PiS-affiliated president gave them the approval to remain). Some of the judges simply refused to retire and eventually, the change was dropped after European-level courts declared it illegal.

Today, Law and Justice no longer shows such regard for European Union norms and EU court orders. Countless actions taken by the ruling party, which was reelected in 2019 with an even larger share of votes following an election in which the playing field was tilted in its favor, faced condemnation by the EU’s bodies, human rights organizations or other EU member states. But encouraged by still strong electoral support and spurred on by a more organized and vocal opposition, PiS had made it very clear that they would place their own political agenda over what anyone else thought of it.

Recently, this confrontational approach reached new heights over the country’s controversial Constitutional Tribunal, heavily influenced by the ruling party and a key target of “reforms” that made both its judges and its procedures heavily pro-government. It was this tribunal that last week issued an unprecedented challenge to the EU: Ruling that Polish law takes precedent over EU law. Aside from the fact that this is not true — as one of the conditions that come with being a part of the EU is adhering to its laws over any national laws — an additional problem is that the very same tribunal was ruled illegal by the EU just a few months prior for its political nature.

It’s a dispute that, if unresolved, experts fear could lead to a “de-facto exit of Poland from the EU,” something that 80% of Poles would disapprove of, current polls suggest. The European Commission said it would “not hesitate to make use of its powers,” and already, Poland is temporarily frozen out of much-needed billions of Euros of Covid recovery funds that the EU is distributing to members.

PiS’ changes to the judicial system may have flown under the general public’s radar for a long time, but they are now coming in handy for the party as it enacts its staunchly conservative policies more brazenly. Solidly in the saddle of power and effectively commanding all the different branches of government from one place, changes have started to affect everyday citizens now, too. The country recently enacted some of the strictest abortion laws outside of the Muslim world and Texas, established absolute control over public media and worked to shut down independent outlets, outlawed LGBTQ+ people outright in several regions, and established a state of emergency along its eastern border over refugees.

In a free society, such actions might be challenged in independent courts by citizens and human rights organizations. But PiS saw this coming from a mile away. And they worked hard to ensure that in Poland, the courts will rule only as they are told to.