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5 November 2021

Dispatch: Poland is no longer a democracy, claim rule of law activists

The independence of the judiciary has been so undermined that Poland is no longer a constitutional democracy, say activists.

By Ido Vock

WARSAW – As Poland’s national ombudsman, Adam Bodnar was tasked with safeguarding the civil rights of individuals and representing them in disputes with the government. In April this year, his own dispute with the Polish government led to his removal from office by a court controlled by the country’s ruling Law and Justice party (PiS). At the time, Human Rights Watch, an NGO, characterised him as “one of the last independent checks on the country’s abusive government” and his dismissal as “yet another example of Poland’s assault on the rule of law”. 

“I tried to defend, as much as I could, the principles of liberal democracy and be vocal about the changes happening in Poland,” Bodnar told me. “And the government wanted to appoint someone loyal to them … so [they found a means] to kick me out of the office of ombudsman.” 

Bodnar’s removal is just one in a string of attacks on the functioning of the rule of law in Poland. These attacks have led to an unprecedented stand-off with the EU, which is holding back tens of billions of euros from its Covid recovery fund in response. The independence of the judiciary has been so undermined, say opposition politicians and rule of law activists, that Poland can no longer be considered a constitutional democracy. 

The Polish rule of law crisis began virtually as soon as the conservative-nationalist PiS was elected in 2015. The party, led by Jarosław Kaczyński, was intent on dismantling what it characterised as vestigial communist influence on the judiciary, which had allegedly been captured by “grey networks” of former Polish People’s Republic bureaucrats. PiS was, wrote the academics Robert Grzeszczak and Ireneusz Pawel Karolewski, putting forward “a Polish version of the ‘deep state’ narrative”, which the world would soon become familiar with via the megaphone of Donald Trump’s Twitter feed.  

PiS used its new majority in parliament to pass a series of reforms. Critics said the changes would entrench the executive’s power over the courts – the only branch of government it did not control – following the election of Andrzej Duda as president in 2015.

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The crisis began with the Constitutional Tribunal, which adjudicates on the constitutionality of legislation. The outgoing Sejm, the Polish parliament, had elected five new judges to fill vacancies on the 15-member Constitutional Tribunal in November 2015. Yet Duda refused to swear them in, leaving them unable to take up their functions. Instead, the new PiS-controlled parliament elected five judges of its own, thus securing the party’s control over the court. Just months after PiS came to power, the Constitutional Tribunal’s independence had been neutered, according to observers.

Kaczyński’s party soon came for lower courts, the National Council of the Judiciary (a body tasked with preserving the independence of the courts), and the Supreme Court. Laws passed in 2017 and 2018 entrenched government control over other judicial bodies. Responsibility for the membership of the National Council of the Judiciary passed to the Sejm. Some members of the Supreme Court were forced into retirement, to be replaced with government appointees.

[see also: Ambassador Daniel Fried: The Biden administration should want a strong Poland in a strong Europe]

Perhaps most controversially, PiS created a body at the Supreme Court, the Disciplinary Chamber, whose members were selected by the newly politicised National Council for the Judiciary. The chamber has the power to sanction judges, including for the content of their rulings. It can impose penalties ranging from pay cuts to dismissal. 

The effect of the reforms has been to neuter the judiciary, argue Paulina Kieszkowska-Knapik and Michał Wawrykiewicz, two lawyers at the Free Courts Initiative, an NGO fighting what it describes as a government assault on the rule of law. 

Any court case with the slightest political ramifications depends on the “integrity and heroism” of individual judges, who if they rule against the government can expect immediate disciplinary proceedings, Wawrykiewicz said. He was speaking in an interview at the group’s Warsaw offices, which are decorated with caricatures of leading PiS figures and homages to Solidarity, the trade union that helped bring down communism in Poland. “If any judge issues any verdict which is uncomfortable for the government, then the disciplinary clerk starts disciplinary proceedings,” he said. 

The judicial reforms fed into a wider project of state capture by PiS, the Free Courts Initiative alleges. The organisation led a legal challenge to the results of the 2020 presidential election, where Duda was re-elected with 51 per cent of the vote. “We are more than sure that this president did not fairly win this election. The difference was 200,000 votes and thousands of objections were lodged. But unfortunately, the objections went to the Supreme Court, which is a captured court, so it approved the results,” Wawrykiewicz said.

PiS’s judicial reforms were bitterly opposed by the EU, which launched disciplinary proceedings against Poland. The EU Commission brought several cases to the European Court of Justice (ECJ), arguing that PiS’s reforms violated EU treaties. In three rulings issued in 2019 and 2021, the ECJ agreed. One interim ruling issued this year asked Poland to suspend the functioning of the Disciplinary Chamber, which the country ignored. 

Rather than complying, the Polish government asked its friendly Constitutional Tribunal for a decision on whether the ECJ had the right to rule on the country’s judicial system. Predictably, the court sided with the government, ruling that EU law is not supreme over the Polish constitution. The judgment is widely viewed as undermining the legal basis of EU integration, as all member states are required to accept the primacy of European law. 

In response, the EU has withheld tens of billions of euros earmarked for Poland as part of the bloc’s Covid-19 recovery fund. In a separate decision, the ECJ issued Poland with an unprecedented fine of €1m a day for refusing to dismantle the Disciplinary Chamber. 

Opposition politicians still have hope that if PiS were to lose office, the judicial reforms could be undone. “We are absolutely ready to reverse these unconstitutional changes immediately after gaining power,” said Bogdan Klich, the minority leader of the Polish Senate and a member of the opposition Civic Platform party. “It is not possible to be a member of the family of democracies without the rule of law. It will take some time [to restore it], but we can do it.” 

For the time being, though, liberals are pessimistic about Poland’s direction under its current government. Democratic backsliding since 2015 has been so severe that Poland would not now meet the criteria for accession to the EU, said Kieszkowska-Knapik. 

Few see PiS backing down and losing face in its struggle with the EU, even though Poland is the member state most dependent on money from Brussels. Ironically, considering PiS’s original stated rationale for its judicial reforms, were an opposition party to come to power, it might find its agenda stymied by courts still packed with PiS supporters. 

“Poland is no longer a constitutional democracy,” said Bodnar, the former ombudsman. “Elections still take place, but like in other countries in the region, it is now clear that democracy is not just about the holding of elections, but also about what happens before and after them.” 

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