In a democracy, the role of the judiciary is to check and balance the power of the branches. Historically, Poland has had a reputation as a free democracy, according to Freedom House, however, since 2015 when Poland’s right-wing populist party, the Law and Justice (PiS) party, took power, democracy has been under siege. This is due to the PiS’s overhaul of the judiciary.
Before the PiS judicial overhaul, Poland’s Supreme Court Justices were appointed by an independent council, keeping the courts relatively neutral. However, over the PiS and Polish president Andrzej Duda’s seven years in power, numerous changes have been made to eliminate political opposition from the courts and shift it in favor of the PiS. These changes include: allowing the Lower House of Parliament, which is under PiS control, to select members of the National Council of the Judiciary, lowering the retirement age for judges by 5 years, but allowing Duda to grant a five-year extension to whomever he so pleases, and adding a Judicial Disciplinary Chamber who can place fines, salary reductions, or even dismiss judges who questioned any new appointees or decisions made by the supreme court. Since the start of the reforms, Brussels and the European Court of Justice have questioned the independence of the courts from the executive. Data from V-Dem shows that since the reforms of the judiciary, politically motivated appointments of judges have become increasingly common, judicial purges have also gained momentum, and the extent that the executive respects the constitution and the judiciary can act independently has declined. All in all, the data show a substantial decrease in judicial independence in Poland since 2015. This is worrisome for the continuation of Polish democracy.
Through the newfound relationship between the judiciary and the executive brand, the judicial reform weakens horizontal accountability. This is because the judiciary is less likely to hold the executive accountable due to its involvement. According to Nancy Bermeo’s paper “On Democratic Backsliding,” today’s authoritarian leaders gain power and erode democracies by gradually curbing the powers of democratic institutions or executive aggrandizement. The Polish Judicial Disciplinary Chamber is an example of executive aggrandizement because it pushes the power away from the judiciary and towards the executive through fear of consequences if not acting in favor of the executive.
Steven Levitsky and Daniel Ziblatt in their book “How Democracies Die” state that one warning sign for democratic erosion is when a politician “rejects, in words or action, the democratic rules of the game,”(p. 21) which falls in line with Bermeo’s definition executive aggrandizement. They describe that executive aggrandizement is such a threat to democracy because curbing the democratic rules that keep them in check enables politicians to “play” democracy by their own rule, and in turn undermines democracy.
The European Commission (EC) agrees that the Polish Judicial reforms are a threat to democracy and undermine the European Union’s (EU) Rule of Law. After notice from the EC to Poland with orders to disband the Disciplinary Chamber, and Poland failed to comply, Poland was told by the EC to pay a fine of €1m a day for ignoring the order. To many, including Polish officials like Justice Minister Zbigniew Ziobro who claimed it was “blackmail”, the fine seemed excessive. However, the fine seems to have been a successful check on Poland’s unbalanced democracy. On February 3rd, Duda put forward a bill to scrap the disciplinary chamber for judges that had been the center of the tension between Poland and the EU. Duda and the PiS backing down to the EU can be explained by Robert Dahl in his book “Polyarchy.” In the book, Dahl states that “The likelihood that a government will tolerate an opposition increases and the expected costs of toleration decreases.” (p.15) In the case of Poland and the PiS, the EU created a literal increased cost of suppression, and therefore created a reason for Duda to want to work on maintaining Polish democracy.
However, this is not to say that democratic backsliding and erosion are solved in Poland. According to a 2021 report published by the European Commission, since 2015, Poland has passed over 30 laws impacting the Polish Judicial system. In that same report, the EU notes the increase in corruption and unraveling democratic ideals coming from Poland, with one of the main factors being the judicial system. The EU continues to urge Poland to continue to restructure its judicial system and make it more independent and transparent.
Sources (not linked in text):
Levitsky, Steven, and Daniel Ziblatt. How Democracies Die. New York: Broadway Books, 2019, 21.
Dahl, Robert A. Polyarchy: Participation and Opposition. New Haven: Yale University Press, 1971, 15.