Since the fall of communism in Poland in 1989, no single party has won an outright majority of seats in parliamentary elections – until the PiS (Law and Justice) Party became the first in 2015. With the presidency occupied by fellow PiS member Andrzej Duda, the two branches worked together to slowly curtail the final pillar of government – the judiciary. Through a series of judicial reforms starting in 2015, Poland has been met with widespread protest both at home and abroad, with the EU continually condemning the government and its changes to the judicial branch. The most recent example came just last week, as the European Court on Human Rights ruled in Juszczyszyn v. Poland that numerous aspects of Poland’s judiciary were unconstitutional and a violation of personal rights. This case further highlights how Poland’s brazen erosion of an independent judiciary further props up PiS leadership and its position in power, all tell-tale signs of a country’s slow creep to an eroding democracy.
To begin, a brief timeline and explanation of how Poland got here should be noted. As previously mentioned, the PiS’ strong legislative and presidential electoral victories in 2015 led to a series of changes in its judiciary. These included packing judges to the Constitutional Tribunal to ensure a majority favoring PiS, lowering the retirement age of judges, and changing who can select Supreme Court justices. These 2015 reforms led to the immediate forced departure of nearly a third of the Supreme Court, giving the party the power to choose who filled these vacated spots.
Moreover, the most controversial of these reforms has been the 2019 Polish judicial disciplinary panel law and its creation of the Disciplinary Chamber of the Supreme Court. Dubbed a ‘muzzle law’, this change gave the body the ability to punish judges who partake in political activity, such as questioning the panel and the government at large. Judges who are accused can be fined or even fired from their position. While PiS leadership claimed the changes were meant to make the judiciary more efficient and less partisan, critics have slammed the changes as being a violation of EU law and a complete erasure of the judiciary’s check on power.
These reforms eventually led to the European Court on Human Rights ruling in Juszczyszyn v. Poland, one of several legal challenges the EU has enacted to counter Poland’s rise in democratic erosion. The case saw the court side with Paweł Juszczyszyn, a judge in a Polish regional court who the Disciplinary Chamber suspended for questioning the status of judges being appointed to a sector of the judiciary (the National Council of the Judiciary) currently under PiS control. The EU court ruled that the Disciplinary Chamber violated Juszczyszyn’s right to a fair trial, noting that the chamber held no legal merit and was not impartial or independent. In the EU’s words, “… the changes made to the judicial system in Poland had had the aim of weakening judicial independence”.
This specific court case showcases Poland’s drastic erosion of an independent judiciary and further highlights numerous signs of the country’s growing authoritarianism. One of the most prominent definitions of this process can be seen in Nancy Bermeo’s On Democratic Backsliding. In her paper, Bermo describes democratic backsliding as the process by which the state deliberately eliminates or rolls back political institutions necessary to sustain a democracy. As seen with Poland, the state deliberately rolled back the functions of the judiciary in order to maintain and ensure power for the PiS. In any democracy, the judicial branch acts as an important safeguard and check on power for the legislative and executive branches. With the PiS using its legislative and executive powers to undermine the courts, Poland has chipped away at a vital institution required for any democracy.
Not only does the court case fit well within the parameters of Nancy Bermeo’s definition of democratic backsliding, but it also showcases a tactic in what Ozan Varol calls stealth authoritarianism. Defined as being an almost invisible form of democratic backsliding that is done through legal means, one of the main components of stealth authoritarianism includes creating a culture of self-censorship and the use of judicial review to consolidate power. In Poland, the PiS has produced a culture of self-censorship amongst judges through the creation of the Disciplinary Chamber which often punishes and create scare tactics in order for judges to not question the government. Not only was the government able to censor judges, but it was also able to fill positions with judges friendly towards the government. In fact, since gaining power in 2015, the PiS has nominated 14 of the 15 judges currently in the Supreme Court. These two examples perfectly highlight how the PiS, through legal means, has crept deeper into a government of stealth authoritarianism.
The seven years PiS has been in power have showcased its desire to target the judicial branch and diminish its checks and balances against the executive and legislature. By packing the courts with PiS-friendly judges, changing the way judges are appointed, and even setting up new chambers to try and silence judges, Poland is a prime example of how power-hungry parties bend and change the rules in their favor. In the end, the changes that PiS has brought to the judiciary emphasize a country in the midst of democratic erosion, with governmental reforms curtailing and retrogressing democracy backward.
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