The Law and Justice Party in Poland is taking both Law and Justice into its own hands. After winning a Parliamentary majority in 2015, the PiS seized control of the Polish Supreme Court by passing legal amendments to the constitution (1). Having full control over the highest court of law, the party used the Court to attack other judicial institutions. This is an example of a new development in authoritarianism in which democratic principles are used to undermine the very institutions that uphold it (2). How did the PiS do this and more importantly, why?
The Constitutional Tribunal
The PiS first attacked the Constitutional Tribunal by refusing to confirm judges appointed by the previous government and appointing 5 of their own (3). The Tribunal initially resisted Pis control by refusing to give cases to the PiS-appointed judges. The Law and Justice Party retaliated by passing a series of bills to increase judicial efficiency. In reality these were poorly- hidden attempts to control the Tribunal (4).
Chief among these bills are the “Amendments to the Act of the Constitutional Tribunal”, which sidelines the sitting judges of the Court while giving the PiS more control over the appointment process. First, the Amendments replace all the sitting judges of the Tribunal (5). Second, the bill alters key processes by which the Prime Minister appoints judges. Any group of 3 judges can nominate a future colleague under the Amendments (6). Third, the Amendments makes the Constitutional Tribunal ineffective. The Amendments to the Act of the Constitutional Tribunal requires certain cases to be referred to a full bench and requires the presence of the Prosecutor General at all cases (7).
What followed is a tit-for-tat eventually ending in a PiS victory. The Constitutional Tribunal reacted to the Amendments by striking them down as unconstitutional (8). The PiS refused to publicize the Court’s decision, ignoring the fact that the decisions of the Tribunal are final (ibid). The PiS was finally able to wrest control of the Court after the retirement of the previous President of the Constitutional Tribunal (ibid). The PiS-appointed Constitutional Tribunal President engineered a majority; 6 out of 11 judges were appointed by the party (ibid).
Authoritarian regimes have always endeavored to knock-out opposition (9). One of the main sources of opposition is an independent judiciary, which can safeguard democracy. In this context, the PiS party’s attacks on the rule of law are not unique. They do, however, demonstrate a disturbing development in authoritarianism.
Previously, attacks on judicial independence were unconstitutional. They were the sudden and dramatic dissolution of the courts or the declaration of a revolutionary government (10). The PiS is an example of a new phenomenon in which authoritarians hide their attacks under a veneer of democracy and constitutionality. By perverting constitutionally-granted powers, authoritarians create a Frankenstate — an ugly mix of democratic institutions and illiberal practices (11). In this situations, institutions have independence on paper but not in practice .
The PiS used its constitutionally-granted powers to undermine the Constitutional Tribunal. Under the separation of powers, the Executive appoints the members of the Judiciary. By refusing to accept the appointment of certain judges and packing the court with its own loyalists, the Party perverts this principle.
On paper, nothing has changed. The Constitutional Tribunal continues to exist, it retains its independence. Its judges are appointed according to the letter of the Polish constitution. In practice, the separation of powers has been completely subverted. Although it looks functionally the same, the PiS-majority Constitutional Tribunal is now no more than an extension of the party’s will. Another tool to be used.
The National Council for the Judiciary
After co-opting the Constitutional Tribunal, the PiS abolished the National Council of the Judiciary — the body responsible for safeguarding the independence of judges (13). The PiS-controlled Constitutional Tribunal decided in June 2017 that provisions of the Act governing the National Council of the Judiciary were unconstitutional. This paved a path for the PiS to pass several bills to place the appointment of judges under the control of the Polish Parliament, in which the PiS has a majority of seats. In order to facilitate the appointment of PiS-selected
judges, almost all members of the National Council of the Judiciary were sent into retirement.
This is an example of how democratic institutions can either defend democracy or subvert it. Once institutions are subverted, authoritarians can use the institution’s powers to attack other bodies while maintaining the illusion of democracy (14). The Constitutional Tribunal’s ruling on the National Council of the Judiciary is perfectly valid. Because the will of the PiS is carried out by a democratic institution (the Constitutional Tribunal), the Party has a shield from critique. The Law and Justice party can always defend their actions by claiming constitutionality under Polish law.
Why not just regular authorianism?
Why did the PiS even bother with a Frankenstate? What was missing with regular, open, warfare against democracy? It could be because Poland is a member of the European Union. The Treaty on the European Union (basically the membership application form for the bloc) mandates its members to respect the rule of law and democracy (15). As a member of the EU and a signatory of the Treaty, Poland might be more concerned with maintaining at least an appearance of democratic institutions in order to avoid discursive and financial sanctions.
In this context, a would-be authoritarian in Poland would then find the Frankenstate to be the best option. By imitating the form of democracy and exerting control behind the scenes, they could subvert democracy as they please without the resulting negative consequences.
Although Frankenstates such as Poland weaken democratic institutions, these developments can also be viewed in a positive light. The shift from open authoritarianism to stealthy authoritarianism can be seen as an effect of the EU’s internalization of democracy as a norm. Democracy is so pervasive that it has forced its enemies to hide under pretend-democratic institutions. Authoritarianism pretending to democracy can be a sign of democracy’s strength. After all, imitation is the most sincere form of flattery.