Policy Brief: International Pressure Can Resolve the Polish Constitutional Crisis

Iga Kozlovska
Northwestern University

In early 2016, the Polish Law and Justice Party (PiS) paralyzed the country’s constitutional court with a number of political moves, endangering the tripartite separation of powers. This was a vivid example of the attack on liberal democratic values that is taking place across Europe. PiS is just one of several right-wing, populist parties (such as the UK Independent Party, the Alternative for Germany, and Fidesz in Hungary) whose resurgence Europe has experienced in recent years. In Central Europe, Orbán’s Fidesz party and Szydło’s PiS have concentrated their power by limiting independent media and crippling the judiciary using their majorities in parliament and ethno-nationalist, euro-skeptic rhetoric. The Polish constitutional crisis has elicited critical reactions everywhere from Warsaw to Brussels and even from Washington DC. However, more international pressure is needed to convince the Polish government to restore the independent and efficient functioning of the Constitutional Court.

In the last few months PiS-affiliated Polish President (Andrzej Duda) and PiS-dominated parliament attempted to undermine the power of the judiciary by changing the opposition appointed Constitutional Court judges and passing amendments that undermine the court’s capacity to make decisions. First, President Duda refused to swear in five new judges appointed by the oppositional Civic Platform (PO), despite his constitutional responsibility to do so. Instead, he swore in five judges chosen by PiS, although the Constitutional Court ruled that three oppositional judges were appointed appropriately and two of them should have been appointed in the next congressional term. In addition to appointing loyal judges, PiS passed amendments to the law on the Constitutional Court such that decisions would require a 2/3 majority of the Court, instead of a simple one. Further, the Court must now take cases according to date of receipt rather than their urgency, and a case must therefore wait for three or six months in the docket before it is taken up. Taken together, these reforms debilitate the Court’s ability to balance the power of the executive branch and to limit its abuse.

The Constitutional Court has responded critically to PiS’s legislative changes, but PiS refused to retreat, bringing the legislature and judiciary to an impasse. In March 2016, the Court ruled that PiS’s amendments were unconstitutional since the Polish Constitution requires only a simple majority in the Court to make decisions. In turn, PiS claimed that the Court’s ruling was unconstitutional because it was not made under the new rules that the PiS-ruled parliament passed in December 2015. For this reason, PiS has refused to publish the Court’s decision, which would make it binding, thereby shirking the parliament’s constitutional responsibility. In its public statements PiS claims that it is correcting the mistakes of the previous ruling party and delivering “good change”, which is PiS’s campaign slogan.

Numerous Polish institutions, foreign governments, and transnational bodies have warned about the threat this crisis poses to Polish rule of law and democracy. On March 11, the Council of Europe’s Venice Commission concluded that PiS’s constitutional reforms “endanger not only the rule of law, but also the functioning of the democratic system” (Venice Commission Opinion no. 833/2015). On April 13, the European Parliament passed a resolution that says it is “seriously concerned that the effective paralysis of the Constitutional Tribunal in Poland poses a danger to democracy, human rights and the rule of law” (EP Resolution 2015/3031(RSP)). The European Parliament reminds Poland that under the Treaty on European Union it is obligated to maintain democratic rule of law as a member state of the EU. In a letter to Prime Minister Szydło, US Senators John McCain (R-AZ), Ben Cardin (D-MD) and Richard Durbin (D-IL) expressed similar concerns that PiS’s reforms can “diminish democratic norms, including the rule of law” (Associated Press 2/15/16).

Polish civil society has expressed its concern as well by taking to the streets. In November 2015 the liberal, left, and center opposition parties founded the Committee for the Defense of Democracy (KOD) to protest PiS’s actions. Every Saturday, it organizes protests across Poland, rain or shine. Citizens participate in the protests to let PiS know that its electoral mandate does not allow it to hijack the institutions of democracy that Poland so dearly fought for throughout the 20th century. On May 7, the demonstrations in Warsaw gathered, according to city authorities, almost a quarter of a million people, making it the largest civic protest since 1989.

Placing the Polish case in a comparative context, we can see that right-wing populist parties, such as PiS in Poland and Fidesz in Hungary, chip away at the separation of powers to make it easier to implement their agenda and win re-election. In Poland’s case, PiS’s actions were purposefully designed to make it easier to implement its political program (e.g. pronatalist policies, politicization of the mass media, limiting privacy rights in policing) without the scrutiny of effective judicial review. In Hungary, Fidesz, which won a supermajority (68%) in the 2010 parliamentary elections, voted on an entirely new constitution that politicized the judiciary and media while enshrining a Fidesz-supported Christian, ethno-nationalist worldview into Hungarian law. Unsurprisingly, Hungary strongly supports PiS in the EU arena.

The resolution of the constitutional crisis depends not only on political actors in Poland but also, and crucially, the international community. The rule of law and the separation of powers would be restored if the Polish government: (1) published the Constitutional Court decision from March 19 that ruled PiS’s constitutional reforms illegal and repealed the amendments which have paralyzed the Court, and; (2) swore in the three judges appointed by the previous government and retained two of their own appointees thereby implementing Court decisions. However, PiS is unlikely to go back on its reforms due to the threat of being seen by its constituents as buckling under EU “ultimatums” or the opposition’s demands. International players need to recognize that PiS needs a face-saving strategy and is more likely to choose a compromise tactic. For example, PiS could keep its five new judges (which serve nine-year terms), but repeal the amendments that make it difficult for the Court to function. To pressure PiS, international institutions and public opinion should continue to let the Polish government know it has gone too far. For example, the European Commission should make it clear to Poland that it intends to move swiftly through the Rule of Law Framework, the arbitration process already underway, and will not shy away from invoking the Article 7 procedure, a sanctioning mechanism never yet used in the EU. Influenced by such international pressure and diminished domestic support, PiS may choose to show bipartisanship and reconciliatory good will to regain favor among its constituents, who are as appalled and embarrassed by this crisis as is the opposition.

To protect Polish democracy and the rule of law and to reinforce EU stability, the Polish government must end the constitutional crisis by appointing the appropriate judges and repealing recent amendments that have paralyzed the Court. For that to happen, the international community must put more pressure on the Polish government, discretely but firmly, to push PiS to end the impasse while saving face at home and abroad. Not only is the quality of Polish democracy at stake, but also that of all European democracies from Hungary to France. The international community must send a clear signal to rising radical, populist parties that dismantling democratic traditions for political gain will not be tolerated.

Iga Kozlowska is a Doctoral Candidate in Sociology at Northwestern University working on collective memory, nationalism and European public policy. She was a Fulbright Student in Poland in 2015-2016 researching her dissertation on the historical memory of communism in the context of European integration. In her spare time she blogs about issues critical to the Euroatlantic region: https://frommoscowtowashington.wordpress.com/

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