“The clash between Warsaw’s supreme court and nationalist-populist government is a crisis not just for Poland, but for the whole EU. If the 28-nation bloc cannot enforce fundamental values such as democracy and rule of law, its future looks murky. With Poland, as with Hungary before it, EU institutions and member states have fallen short.”July 2018, Financial Times
In 2017, Poland’s current ruling Law and Justice party (Pis) began a series of judicial reforms that would undermine the same ideologies it stands for – law and justice. It began by changing the retirement age of the Polish Supreme Court judges from 70 to 65, forcing those above 65 years olds – over 40% of the Constitutional Court – to enter early retirement. Affected judges can file for an appeal to extend the term of office, but this would have to be approved by President Andrzej Duda – a decision that counteracts traditional democratic practices by placing all decision power in the hands of the ruling party. This new restriction includes the First President of the Supreme Court of Poland, Malgorzata Gersdorf, a former member of the Solidarity movement, who was forced out of office in a movement by the PiS party to pack the Constitutional Court with loyalists, an effort that Law and Justice has been trying to attempt ever since coming to power in 2015. This will allow PiS to have the majority in the constitutional tribunal which eliminates the key democratic norms of mutual toleration and forbearance (Levitsky 2018) by changing the electoral rules in a way that eliminates constitutional checks and balances.
With PiS holding the majority in court, the concept of mutual toleration and forbearance becomes irrelevant since there are no longer grounds for debates on policies. The new judicial reform gives power to politicians over the court and eliminates judicial independence, allowing the ruling party to house the Sejm in any manner it likes. As such, it eliminates toleration and forbearance by allowing Law and Justice to have the power of majority rule to veto any decision its opposition proposes. As argued by Aziz Huq in his 2017 Law Review, “How to Lose a Constitutional Democracy,” the elimination of institutional checks such as court independence is among the pathways to democratic erosion. Precisely so, Poland’s judicial reform is moving the country away from democracy in a stealth authoritarian move that manipulates rule-of-law rhetoric to mask undemocratic practices.
Stealth Authoritarianism is defined by Ozan Varol in, “Stealth Authoritarianism,” as the manipulation of legal mechanisms that exist in democratic regimes to undermine partisan alternation by significantly increasing the costs of unseating the incumbent (Varol 2015). Among its mechanisms, the adoption of electoral laws to disenfranchise opposition can be seen in practice through Poland’s 2017 judicial reform to eliminate judicial independence. Further, in 2019, PiS continues to pass another judicial reform that introduces a disciplinary chamber to control dissent within Parliament:
“The new law, popularly referred to as a “muzzle” law, empowers a disciplinary chamber to bring proceedings against judges for questioning the ruling party’s platform. The law allows the Polish government to fire judges, or cut their salaries, for speaking out against legislation aimed at the judiciary, or for questioning the legitimacy of new judicial appointees”.2021, Duncan and Macy
Again, PiS’ policy is another coercive force to undermine traditional democratic practices within Poland by establishing means to form incriminating lawsuits against those who oppose authoritarian views (Varol 2015). This infringes upon the right to freedom of speech and opinion that is traditionally valued in democratic societies. Altogether, Law and Justice judicial reforms in 2017 and 2019 combines the enactment of democratic reforms, use of rule-of-law rhetoric to deflect attention from anti-democratic practices (Varol 2015), moving the country closer towards democratic backsliding.
The effect of Poland’s judicial reforms goes beyond a national concern over the sustainability of democracy within Poland, it also poses a threat to neighboring democracies that are within EU’s jurisdiction. If rule of law cannot be protected, EU faces the possibility that populist movements in its other member states will soon declare similar attacks on the long preserved democratic institutions. As seen in the first three democratization waves, the effects of one country’s policies can be immensely potent to its neighbors.
While Hungary and Poland were the first EU countries to see nationalist-populists in power, far-right parties have since joined governments in Austria and Italy. Populism is on the rise across the continent. Immature institutions make the EU’s newest members most vulnerable to erosion of democratic checks and balances. But if the bloc fails to defend its values here, populists in more established democracies — claiming to represent the true “will” of the people — may be tempted to start undermining the rules, too.2018, Shotter and Huber
Varol, Ozan. 2015. “Stealth Authoritarianism.” Iowa Law Review 100(4): pp.
Huq, Aziz & Tom Ginsburg. 2017. “How to Lose a Constitutional Democracy.” UCLA Law Review 65(78): pp. 80-169
Levitsky, Steven & Daniel Ziblatt. 2018. How Democracies Die. New York:
Crown. Chapter 1.
Duncan, Allyson, and John Macy. “The Collapse of Judicial Independence in Poland: A Cautionary Tale.” Judicature, 3 Feb. 2022, https://judicature.duke.edu/articles/the-collapse-of-judicial-independence-in-poland-a-cautionary-tale/.
FT. “Poland’s Supreme Court Purge Is a Challenge to EU Values.” Subscribe to Read | Financial Times, Financial Times, 4 July 2018, https://www.ft.com/content/97e08e62-7f8c-11e8-bc55-50daf11b720d.
Khan, Mehreen. “Poland Faces European Backlash over Judicial Reforms .” Subscribe to Read | Financial Times, Financial Times, 4 July 2018, https://www.ft.com/content/ef3b5420-7f60-11e8-bc55-50daf11b720d.