The ruling Law and Justice party (PiS) passed a series of controversial measures to overhaul the country’s judiciary late last year. In response, the European Commission (EC) took the unprecedented step of invoking Article 7 of the European Union treaty for the rule of law violations.
It’s worth stepping back to consider why PiS has provoked the ire of the EU and rights watch groups. Why are Polish populists intent on judicial reform and why is it a sign of backsliding?
Our story begins in 2005 when PiS first came to power promising sweeping reforms of state institutions, including the judiciary. As the scholar Ben Stanley has written, “Populists oppose the liberal system of institutions and legal proceduralism as a barrier to efficient rule and the implementation of policies that accord with the implementation of the popular will” (2015: 253).
PiS’s frustrations in government seemed to justify the sentiment (REVISE). Much of the coalition’s flagship legislation was held up in the courts. Kaczynski called it prawny imposybilizm, or ‘legal impossibilism.’
When PiS won a slim majority in the Polish parliament (Sejm), it quickly moved to systematically undermine the judiciary. According to a report by Human Rights Watch, the government refused “to recognize duly appointed judges” to the Constitutional Tribunal, the body charged with judicial review. It appointed its preferred candidates in their place.
The scholar of populism Jan-Werner Muller argues that PiS’s efforts to reshape the judiciary follows a pattern of populists aiming to “colonize or ‘occupy’ the state” (2016: 28).
The central component of the legislation lowers the retirement age for Supreme Court judges from 70 to 65. This will force out roughly 40 percent of all justices when it goes into effect later this year. What’s more, their replacements — and all new judges — will be subject to election by parliament. Before, judges nominated their successors upon retirement, and their fellow judges voted on the nomination.
In other ways, the legislation puts loyal people in strategic positions, especially with respect to elections (Bershidsky 2018). A key measure of the legislation creates a new Supreme Court Chamber for Extraordinary Control and Public Matters, which will have jurisdiction over elections.
The legislation is also a missed opportunity. One could imagine a more modest reform bill that stays true to populist ideals like efficiency and popular control without indulging its excesses.
As Leonid Bershidsky of Bloomberg View notes, the US State Department wrote in its 2017 Investment Climate Statements: “Generally, foreign firms are wary of the slow and over-burdened Polish court system, preferring other means to defend their rights. Contracts involving foreign parties often include a clause specifying that disputes will be resolved in a third-country court or through offshore arbitration.”
As of this writing, negotiations between the EC and the Polish government over Article 7 proceedings are ongoing. While the government has proposed several limited concessions, there is little reason to believe they will go back on core parts of the legislation given Hungary’s vow to back them in the proceedings.