Earlier this week, Poland’s Supreme Court upheld the election of incumbent Andrzej Duda as the president of the country. The opposition and activists had challenged the results of the July 12 elections, claiming widespread irregularities, both in the process and the campaign. The decision of the court has been criticized widely by opposition forces. For the ruling Law and Justice (PiS) party though, it is another moment of consolidation as Andrzej Duda is not only its ally but vital for the execution of its right-wing agenda.
The second round of the poll saw Duda winning 51.03% of the vote while his main rival, Rafal Trzaskowski, won 48.97%. The PiS-led government had originally scheduled the elections for May but was forced to postpone it following widespread protests from across the political spectrum and civil society against the conduct of elections amid the raging COVID-19 pandemic.
The PiS was keen on holding the elections in May due to incumbent president Duda’s high approval ratings. In the country’s political system, presidential support is crucial for the government to pursue its policies, and in the case of PiS, critical for its attempts to gain absolute power.
The PiS was formed in 2001 under the leadership of Lech Kaczynski and Jarosław Kaczyński, and shot to prominence in Poland riding on a hyper-nationalist, conservative, homophobic and anti-Russia campaign. The conservatives and far-right sections in the country have virtually consolidated under the flag of PiS. Since its inception, the party has accused the so-called liberal establishment of being inefficient and of having failed to transform Poland that was supposedly “ridden with communist past” into a brand new country.
A key aspect of the PiS agenda has been an effort to control the judiciary. On February 2, Duda, a Ph.D. holder in law, signed what has been called the ‘muzzle bill’. The legislation calls for punishing judges who criticize judicial reforms introduced by the ruling conservative government. With this new law, PiS has tightened its grip over the Polish judiciary, which it has been trying to subjugate since coming to power in 2015. The PiS also brought its supporters on the streets of Warsaw on February 8 to demonstrate support for these draconian reforms.
This is the latest in a long line of ‘reforms’ against a judiciary which has often not been enthusiastic about PiS’ agenda. The first attempts toward this goal targeted Poland’s Constitutional Tribunal, which rules on the constitutionality of new laws. In 2015, Duda refused to swear in judges appointed by the opposition-majority parliament. However, after PiS got a parliamentary majority in the October 2015 elections, the new parliament proposed pro-PiS judges who were sworn in by the president, neglecting the Constitutional Tribunal’s order for restraint. Such a tussle between the PiS-led parliament and the tribunal resulted in a constitutional crisis in the country. By 2016, the PiS brought the Constitutional Tribunal totally under its control by appointing a party ally, Julia Przyłębska, as the new head.
Since 2017, the government has been attempting a restructuring of the supreme court and the National Council of the Judiciary (KRS), which oversees the appointment of judges. The justice minister was accorded the power to unilaterally replace court presidents. Following this, a disciplinary chamber – that has the power to suspend judges – was appointed by the president. This chamber comprises nominees of the KRS, which is dominated by PiS loyalists. Even though Duda initially vetoed the bills institutionalizing such changes due to popular protests, watered-down versions of the two laws were signed by him in December 2017.
The government then pushed a new legislation in July 2018, which called for reduction in the retirement age of judges in both the higher and lower courts. PiS claimed that the majority of the senior judges in the country have served under the communist and post-communist liberal judicial system, and are hindrances to Poland’s real political transformation. However, the European Union (EU) forced the Polish government in November 2018 to reinstate judges in the higher courts who had been forced to retire under the new law.
The latest “muzzle law” was passed in the PiS-dominated Sejm, the lower house of parliament, on December 20 last year. Even though the opposition-dominated Senate, the upper house of parliament, voted down the law on January 17, it was enacted by the president with the approval of the Sejm.
These moves by the PiS have evoked widespread criticism from the Polish judiciary, liberals and pro-democratic forces, as well as the opposition parties, including the Polish left and the EU. The protests that began in the country with the constitutional crisis in 2015 culminated in countrywide mobilizations in December 2019.
The Board of the Polish Judges’ Association, Iustitia, has also opposed these reforms since the outset. lustitia has alleged that the real purpose of the muzzle law is to ultimately subordinate the judiciary to political power. According to them, this legislation curtails the judges’ right to free speech and privacy, and introduces a mechanism of invigilation, obliging judges to disclose membership in associations and their role and functions in various foundations. It also abolishes judicial self-governance by transferring all decision-making related to the courts to their presidents, who are nominated by the minister of justice. The law additionally prohibits judges from adopting resolutions that are critical of the actions of other state authorities, according to Iustitia.
Pro-EU liberal sections in the country, with the help of the opposition parties, have formed a platform called the Committee for the Defence of Democracy (KOD) to oppose the PiS-led reforms. Groups such as the Democratic Action and Citizens of Poland have also been actively involved in the protests.
Even though the EU and Polish judicial authorities have tried to obstruct the PiS from carrying out these judicial reforms, its majority in the lower house of the parliament, along with president Duda’s support, enabled the conservative government to push through its nefarious proposals to subjugate the judiciary. The PiS has sought to deflect this criticism by branding their critics as communists and agents of Russia.
Along with Hungary, the PiS-led Poland has thus emerged as one of the leading right-wing states in Europe which is enacting systemic change with a view to establish right-wing hegemony over the country.