There have been concerns about Poland’s democracy since the party of Law and Justice (PiS) came to power in 2015. The party has introduced legislation that restricts the rights of women, migrants, and the LGBT+ community, but the main concerns about democratic backsliding have centered around their changes to the judiciary. Recently, however, external circumstances have given the European Union (EU) the ability to pressure the Polish government to make changes and reverse backsliding. These demands on the part of the EU, however, will likely not be enough to create the necessary structural change domestically.
With Poland’s position on the frontline of the war against Russia, their political position has been significantly increased, especially since they have taken in at least 3.5 million Ukrainian refugees. This position has pressured the EU to loosen some restrictions they had placed on Poland due to their democratic backsliding. However, economic costs Poland incurred from the COVID-19 pandemic and the high possibility of an economic downturn in the near future have also pressured the Polish government to make necessary changes to receive relief money being withheld by the EU. In addition, Poland’s ruling party has become increasingly isolated internationally, leaving them with few alliances within the EU. Many, including Anna Wojciuk, a professor of international relations at the University of Warsaw, view this a moment for the West to assert their power and demand Poland make tangible reforms to reverse the democratic backsliding that has occurred. In addition to the increasing international opposition to the PiS government, there are also fractures forming within the party between those that are willing to make changes in order to restore their relationship with the West and those that are not that could be exploited. In addition, while Poland is important to NATO in the war against Russia, NATO is also essential to Poland’s security during this time, meaning the war has not given them untouchable political influence.
Actions have been taken by international actors to demand reforms be implemented by the Polish government. The European Court of Justice has fined Poland millions for refusing to suspend operations at a coal mine and shut down the judicial disciplinary chamber. For the first time in the union’s history the EU has taken money out of a country’s funds to cover the unpaid fines, deducting 30 million euros from Poland’s funding. They have also placed restrictions on the country’s COVID relief grants and loans. Poland’s Parliament has voted to reform their judiciary, addressing the three conditions the EU placed on the distribution of the billions in grants and loans allocated to the country for COVID relief: dismantling the judicial disciplinary chamber, reforming the disciplinary regime, and reinstating judges that had been dismissed by the disciplinary chamber. The disciplinary body has been used by the PiS controlled government to punish judges that issue rulings or public statements that oppose the party’s platform.
Poland’s current judiciary and their proposed reforms are in line with Ozan Varol’s definition of stealth authoritarianism. Varol points to judicial review as one of the primary mechanisms of stealth authoritarianism with the appointment process of judges and structural changes to the judiciary as a way for the ruling party to preserve power. As is true because of PiS declining number of seats in the judiciary, the occurrence of opposition within the judiciary and the presentation of the judiciary as independent are necessary to qualify alterations to the judiciary as stealth authoritarianism. The proposed surface level reforms also meet the definition of another of Varol’s proposed primary mechanisms of stealth authoritarianism: the bolstering of domestic and global legitimacy. This requires the allowance of limited opposition to the ruling party, which can be seen in the proposal of these reforms, as well as the implementation of democratic reforms and rhetoric to distract both international and domestic audiences from the reality of backsliding that is occurring. The proposed reforms that would not actually create the necessary structural change within the judiciary to reinstate the rule of law, if accepted by the EU, will increase Poland’s legitimacy as a democracy on the international stage without actually requiring the ruling party to sacrifice any of the power they had consolidated.
There has been significant backlash to these proposed reforms from both the left and the right in Poland and abroad. Domestically, the bill was opposed by the Euroskeptic United Poland party, as well as PiS, for giving in to the demands of the EU. It was also opposed by more left-wing parties for not going far enough to reinstate the rule of law within the judiciary. International critics also agree that the bill does not go far enough. Many critics assert that the current Disciplinary Chamber of the Supreme Court will simply be renamed, or replaced by the proposed new Chamber of Professional Accountability, which will still be controlled by politically appointed judges. Many critics are also concerned about the broader implications of the EU accepting these minimal reforms to the Polish judiciary and releasing their funds. Laurent Pech, a professor of European law at Middlesex University London, states, “The broader implications of that will be that everybody will see that the Commission is just not serious about rule of law. You can attack rule of law and get away with it — that is the message.” Within the EU, the Renew Europe group, has expressed great concern about the possibility of the EU accepting these reforms as sufficient with one representative stating, “We won’t be able to stand up to autocrats abroad by placating those who unravel democracy at home.”
While restricted financial aid, in addition to restricted trade deals, is one of the only forms of diplomacy that can cause countries to make changes, it is likely not enough to replace the need for the domestic changes that can lead to long-term structural change. As Yasmeen Serhan argued in response to President Biden’s democracy summit held in December 2021, domestic actors are the most influential in successfully maintaining and reforming democratic institutions. Even effective diplomacy is not enough to replace the need for domestic actors to restore democracy. As Serhan writes, “Some of the gravest threats to democracy are internal: distrust, polarization, voter suppression, and partisan institutions,” and withholding funding may cause Poland to enter an economic depression may actually worsen some of these threats. Economic inequality, that would only be worsened by an economic depression, is consistently pointed to as a strong factor in democratic backsliding, because it significantly decreases political interest and participation amongst people at all income levels, but especially those in the lowest brackets.
This places the EU in a difficult position in which accepting the minimal reforms and distributing aid will serve to reinforce the stealth authoritarianism in the country, but withholding aid may also worsen the democratic backsliding occurring in the country. A potential middle ground may be to distribute the COVID relief aid but continue to fine Poland until structural changes are actually implemented to reform the judiciary and, as they did before, take the fines out of their EU funding. This may work as a way to prevent an economic downturn that is not seen as approval of the PiS regime.
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*Photo by Piotr Cierkosz, “Polish Parliament” (Unsplash), Creative Commons Zero license.