Europe’s Sick Success Child

Poland has a rule of law problem. Long-time readers of Verfassungsblog know that all too well, as dozens of excellent articles have been published here and elsewhere detailing the amount of damage to the Polish legal system and judiciary incurred by the currently ruling coalition of right-wing parties led by Prawo i Sprawiedliwość (Law and Justice) and its chairman Jarosław Kaczyński. This damage stems from an underlying determination of Kaczyński to remove any and all obstacles to his rule, with courts and judges apparently being at the top of the list. Fearful that one of the top Polish courts might strike down his far-ranging reforms or find a social transfer scheme to be incompatible with the Constitution, Kaczyński and his frenemy Prosecutor General/Minister of Justice Zbigniew Ziobro have jointly orchestrated a political takeover of the Constitutional Tribunal and National Council of Judiciary, partially compromised the Supreme Court, attacked judges critical of these changes and abused the prosecutor’s office towards blatantly political goals. Poland AD 2023 is a damaged democracy, sinking in the rule of law and human rights rankings. It has also been an increasing headache for the European Union, which has belatedly but partially successfully started to push back against these developments. Thus, it launched infringement proceedings against Poland and most notably, withheld the RRF, the EU’s covid-19 recovery fund, pending meaningful improvements to the rule of law in the country. These actions have led to some concessions from the Polish government, such as dismantling the highly problematic Disciplinary Chamber of the Supreme Court, but many problems remain.

However, the Polish legal system and society have proven remarkably resilient against the damage to the rule of law, much more than in Hungary. Despite lofty aspirations of the ruling camp to reshape the Polish constitutional framework, they could not amend the 1997 Constitution due to the significant requirement of support in the parliament to do so.  Polish judges and lawyers have been vocally resisting the attack on the judiciary, and justices of Polish courts have initiated dozens of cases before CJEU and ECtHR regarding their status and independence. Polish civil society has also been robust, engaging domestically and abroad to advocate for resistance against the “reforms” and building awareness of their dangers. Private media, strong and diverse despite attempts at takeovers and governmental buyouts of private outlets, have reported diligently on the issues with the rule of law. Polish legal scholars have spoken against the attack on values, too. However, except for a few notable vocal senior professors, most of the engagement with the topic was carried out by junior Polish academics and a handful of foreign scholars who are friendly to the Polish cause while also keenly aware of the more profound damage to the EU that the Polish conundrum brings.

A Turning Point in History

The upcoming parliamentary elections are, not to overuse a frequent expression, of paramount importance for Poland, the EU and Europe at large. The country is at a critical juncture in its history, again playing an essential geopolitical role in the context of an acute danger coming from Russia. The war on Poland’s doorstep has not only upended the security paradigm in Europe but also impacted the rule of law crisis in the region. Polish economy, buoyed by its EU membership and robust policies, is soaring. However, the damage to the rule of law and human rights is significant, and this might be the last chance for the country to reverse its course before more lasting harm is done to the Polish judiciary and the legal system as a whole. The leader of the ruling coalition, PiS chairman Jarosław Kaczyński, has vowed to finish what he started and complete the “reform” of the Polish judiciary, including perhaps by having all Polish judges undergo some sort of verification process before the politically captured National Council of Judiciary. That alone would possibly lead to the entire Polish judiciary becoming “tainted” by the Council, a body itself lacking independence, as confirmed by both the CJEU and ECtHR, and complicit in demolishing the rule of law in the country.

There is, however, some good news regarding the prospects for fixing the rule of law in Poland. Thus,  except for the right-wing libertarian Konfederacja, all the major opposition parties and coalitions agree in principle on the rule of law. Details vary, accents differ, and there will likely be small contentious items, but in general, the centrist/liberal/green Civic Coalition, the centre-right/agrarian Third Way alliance, and the social-democratic/leftist group the Left all share the same view: the rule of law in Poland has gone bad under the current government, and urgent repairs are needed. It’s best left to political scientists to analyse the actual chances of such an exotic majority coming together, as Poland doesn’t have much experience with grand coalitions that span from centre-right to far left. But there is potential for a change and appetite for it among voters of these three blocs, as all three alliances speak to people disappointed with PiS in one way or another. However, winning the vote and forming a government that respects European values, international obligations, and the Polish constitution is just the beginning.

Two Roadblocks

Even if the Polish opposition manages to secure a ruling majority, repairing the rule of law in Poland will remain a daunting task, at least initially. In particular, there are two significant obstacles: President Andrzej Duda and the Constitutional Tribunal.

The President of Poland wields the power of a legislative veto, which he can use at his full discretion to halt almost any legislation. Sejm, the lower-but-more-powerful of the two chambers of Polish parliament, can defeat the presidential veto in a vote. However, that requires significant resistance (3/5 votes with at least half present), which will almost certainly be impossible to attain by a majority formed among the pro-democratic opposition parties, as PiS and Konfederacja will most likely hold enough seats to make defeating the veto impossible without their doubtful support. Alternatively, the President can request the Constitutional Tribunal to review a law before signing it into force. Given the current state of the Tribunal, the review would either be done by judges friendly to the current ruling camp who would be politically motivated to declare it not compatible with the Constitution or not occur at all, with the Tribunal simply not hearing the case. There are reports of the Tribunal under the leadership of its President Julia Przyłębska placing a pending case in a drawer and never opening it again, thus leaving the law in limbo.

In another plausible scenario, cases on new laws could end up in a quagmire of an internal conflict within the Tribunal. This would render it unable to pass judgments in key proceedings that require a full panel of at least eleven judges to be present. This has been the case, for example, with the law on courts that was supposed to bring Poland towards unlocking the RRF but was sent to the Tribunal by President Duda prior to signing and ended up stuck at the Tribunal. Under any of those scenarios, President Duda could lead to an effective block of any new legislation. The opposition could negotiate with him, but with his signature on the most damaging laws that affected the rule of law, and this being his second and thus last term, there is not much space for an agreement. It is possible that the opposition would have to wait until the next presidential election, scheduled for 2025, for a new President who would be more open to fixing the rule of law.

Even if such a person would move into the Polish presidential palace in 2025, the politically captured Constitutional Tribunal would still be there. It would take some considerable time before judges appointed by a new parliamentary majority would fill the bench. Such a Tribunal would be a potential obstacle in itself. The catalogue of stakeholders with the right to request a judicial review of existing laws by the Tribunal is broad and includes, among others, a group of 50 members of Sejm or 30 Senators. This means that a group of PiS parliamentarians could request a review of any new law enacted to restore the rule of law. One can imagine that the Tribunal would be uncharacteristically quick to hear a request from its political patrons, potentially killing any legislation by means of finding it incompatible with the Constitution. To make matters worse, an application for such a review would likely not risk running afoul of the internal struggle at the Tribunal, as it wouldn’t require a full panel to hear the case. Until the Tribunal is reformed or the terms of judges appointed by a majority of PiS votes run out, there is little that could stop such a scenario.

Some Immediate Solutions

Fortunately, some urgent actions needed to repair the rule of law in Poland and the EU would not require legislation. The disciplinary harassment campaign against judges critical of the current government or who issued unwelcome rulings can be ceased immediately by the new Minister of Justice. Ending the practice of abusing the prosecutor’s office would require the same person, wearing their Prosecutor General hat, to stop treating prosecutors as they were political officers and harassing those who refuse to follow unlawful orders. Finally, the new government could very quickly put Hungarian Prime Minister Viktor Orban in a tight spot, by ceasing to act as its ally on the rule of law in the EU Council or give it cover in Hungary’s Article 7 procedure.

Such actions would be welcome first steps on a long and arduous road to repair the Rechtsstaat in Poland. All of this, of course, depends on  the Polish opposition prevailing in the upcoming vote and being able to form a government – both scenarios being far from certain. To end with some optimism, let’s hope that the first verse of the Polish anthem will ring true on 15 October: Jeszcze Polska nie zginęła, or as it goes in German, noch ist Polen nicht verloren.