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Why is Poland’s Law and Justice Party trying to rein in the judiciary?

- July 26, 2017
People take part in a “Chain of Light” protest to express their opposition to major changes to the Supreme Court, in Poznan, Poland, on Monday. (Jakub Kaczmarczyk/European Pressphoto Agency)

Political science has a term for what unfolded in Poland over the past 20 months: autogolpe (self-coup) — when a democratically elected government extends its powers in violation of the constitution.

In the Monkey Cage article we wrote immediately after the Law and Justice party (PiS) won the 2015 elections, we worried that the new government would try to change the political system — even though the PiS lacked the two-thirds majority in Parliament necessary to amend the constitution (it won 37.6 percent of votes, which gave it 51 percent of seats in the Sejm, the lower chamber of Parliament).

PiS is taking aim at Poland’s liberal democracy

We had good reasons to think so: Over the years PiS has become increasingly radical in its critique of the liberal-democratic model of government — and increasingly determined to unmake it. The party’s 2010 draft of a new constitution not only eroded the principle of checks and balances by concentrating power in the hands of the president, but also eliminated the current constitution’s protections against discrimination (article 32) and supporting freedom of the press (article 14), as well as measures to prohibit compulsory participation in religious practices (article 53). The section guaranteeing individual rights and liberties (article 5) was amended in the draft to read that these could be restricted by means of ordinary legislation in the name of the “common good.”

[interstitial_link url=”https://www.washingtonpost.com/news/monkey-cage/wp/2015/11/03/did-poland-just-vote-in-an-authoritarian-government/”]Did Poland just vote in an authoritarian government?[/interstitial_link]

The courts legislation that went through Parliament last week was the latest — and blatantly unconstitutional — example. Summarily dismissing Poland’s current Supreme Court justices would be in violation of article 183 of the constitution. And the legislative process clearly violated the amendment procedure spelled out in article 235. This is not so much bending the rules to effect systemic change; it’s throwing the whole rule book out the window. President Andrzej Duda surprised a lot of people by vetoing two of the three bills on July 25, but the bill he did sign (allowing the justice minister to appoint and dismiss the heads of common courts) still gives the government significant power over the judiciary.

So why is this happening?

PiS contests the legitimacy of the system created after the fall of communism in Poland in 1989 and claims a popular mandate to dismantle it in favor of what one observer has called a “paternalist and populist form of corporate nationalism.” But data from surveys such as the Polish National Election Study show no decline in popular support for democracy in favor of nondemocratic alternatives, or indeed of any other kind of value shift in an “illiberal” or neo-traditionalist direction. In 2015, the most recent edition of the study, when explicitly asked to state their preference for freedom vs. equality, progress vs. tradition, and individual entrepreneurship vs. social solidarity, in each case respondents preferred the first option to the second, by roughly 55 percent vs. 34 percent.

[interstitial_link url=”https://www.washingtonpost.com/news/monkey-cage/wp/2017/07/25/so-polands-president-surprised-everyone-vetoing-two-bills-that-threatened-the-courts-independence-heres-what-that-means/?utm_term=.a3a21c22e5aa”]So Poland’s president surprised everyone, vetoing two bills that threatened the courts’ independence.[/interstitial_link]

In short, there is no evidence that Poland’s backsliding from liberal democracy comes from the bottom up. So was this instead a top-down process? According to elite-focused theories of regime transitions, democracies remain stable when they are in a “self-enforcing equilibrium,” meaning when all major political actors favor the status quo because it serves their own interests as they see them.

Poland’s politics after the fall of communism have often been rancorous, but all major actors have respected the rules of the game. So why did PiS decide to break them?

Although Polish parties are weakly institutionalized and leader-centric, PiS is an extreme case, a mini-autocracy in which one man, the chairman, has the final say in all decisions. Article 7 of the PiS statute gives him unlimited power to suspend members’ rights (including the right to participate in internal votes and other decision-making processes) and nearly exclusive power of initiative (nothing can happen without his say-so). The result is a party of a “sultan and political eunuchs,” to quote a memorable description by one former insider. Other former insiders have related that PiS officials felt intense pressure to participate in sycophantic displays of personal loyalty to the leader and were subjected to repeated, casual humiliations. Why did they put up with it?

Because they had their eyes on the prize: the spoils of power. This is the pragmatic reason behind the ongoing assault on the rule of law. During eight long years in opposition, the PiS held together thanks to an unwritten understanding that, once in government, its members would be rewarded with state-sector jobs on the basis of political loyalty. These jobs would become vacant by a mass-scale purge of the civil service, local administration and publicly owned companies.

[interstitial_link url=”https://www.washingtonpost.com/news/monkey-cage/wp/2017/07/23/the-attack-on-polands-judicial-independence-goes-deeper-than-you-think-here-are-5-things-to-know/?tid=a_inl&utm_term=.aae5bc5f21ac”]The attack on Poland’s judicial independence goes deeper than you may think.[/interstitial_link]

And indeed, one of first pieces of legislation that PiS enacted after coming to power in 2015 was a new civil service law that eliminated open competitions for senior posts, along with the requirement that candidates must not have belonged to a political party in the previous five years. Senior ranks of the military and security services were also purged and replaced with political appointees. In one especially egregious case, a corporal was promoted to colonel in just 18 months.

Under normal circumstances such purges and rapid promotions would be impossible to carry out because those adversely affected could fight their dismissals in the courts. Hence the motivation — along with several others — to strip the judiciary of its independence so that this “state capture,” unfolding along lines similar to Hungary, could proceed with impunity. Additionally, the PiS probably has a sense of “now or never” — having won the last election by a quirk of domestic and international circumstances unlikely to be repeated.

The second reason is ideological. The PiS left a long trail of documentary evidence of its hostility to the liberal-democratic model and its preference for paternalistic authoritarianism, probably closest to Salazar-era Portugal, perhaps: an all-pervasive state, backed by a state church, with corporatist economic and social arrangements, presided over by a “father of the nation” figure, and with the loyalty of key groups — including party functionaries, the military and security services — secured by opportunities for self-enrichment familiar from other cases of authoritarian clientelism. The success or failure of the PiS plan will depend on how much pushback it receives from supporters of open, liberal, democratic society in Poland.

Hubert Tworzecki is associate professor of political science at Emory University in Atlanta. His work focuses on political parties and electoral behavior in Central and Eastern Europe.

 Radosław Markowski is professor of political science at the University of Social Sciences and Humanities in Warsaw. He directs the Center for the Study of Democracy and is the principal investigator of the Polish National Election Study.