In recent years, populism has surged onto the global political stage, becoming a formidable political force (Guttieri, 2019). It draws its strength from its appeal to the perceived grievances of ordinary citizens against a privileged elite, transcending borders to influence democracies across continents. Populism is often defined by its opposition to elites, constitutionalism, democracy, and liberalism. While this definition captures the essence of the populist movement, it requires careful consideration.
Firstly, the populist rhetoric against elites can be disingenuous. Many prominent populist leaders come from privileged backgrounds themselves (Bethell, 2009). Take Viktor Orbán, Hungary’s current prime minister, and Donald Trump, the former US president, as prime examples. They are Ivy League educated elites, far from representing the average person. Populism also challenges constitutionalism, going beyond a mere written document. It questions a set of principles that genuinely limit government power and safeguard civil liberties, particularly for marginalized groups. These principles are deeply rooted in a political culture that upholds the rule of law. As delve into populism, we must recognize the nuances and complexities that define this influential political movement.
Within the multifaceted landscape of populism, one of its most profound challenges emerges in judicial independence (Repucci, 2018). This cornerstone of democratic governance safeguards courts’ ability to make impartial judgments, shielded from the undue influence of political branches or popular sentiments. However, the ascendancy of populism has cast a shadow over this crucial principle. Populist leaders and movements often strive to erode the judiciary’s autonomy as they pursue their political goals. In this blog, explore the intricate relationship between populism and judicial independence, using Poland as a case study.
The global surge of populist movements presents a daunting challenge to the autonomy and effective functioning of the judiciary (De Witte, 2019). A prevailing trend among emerging populist leaders is employing an array of tactics, ranging from disparaging public statements to more extreme measures like constitutional amendments and court-packing. These tactics are strategically designed to encroach upon the judiciary’s independence, which serves as a vital check on government power.
Recent times have thrust Poland into a turbulent whirlwind of political and constitutional turmoil, steered by the actions of the ruling Law and Justice (PiS) party (Kulbaczewska-figat, 2023). This crisis has sent shockwaves through the political landscape, prompting profound worries about the erosion of democratic principles, particularly in judicial independence. At the helm of the PiS party, Jarosław Kaczyński has orchestrated a series of reforms to solidify the government’s grip on the judiciary. These reforms, far from escaping the global spotlight, have ignited fervent debates and garnered criticism both on the home front and the international stage. Notably, the European Union (EU) has taken a resolute stand against these changes, marking a pivotal moment in Poland’s relationship with the EU.
The PiS Party’s Assault on Judicial Independence
Adding to the complexity, a new act was ushered in, introducing procedural regulations demanding a formidable two-thirds supermajority vote to settle critical issues (Garlicai, 2020). When incumbent tribunal judges bravely questioned the constitutionality of these sweeping changes, the PiS party adopted an assertive stance, insisting that the act be implemented immediately. This maneuver can be seen as an artful attempt to sidestep the customary judicial review process. This early flashpoint in the crisis marked a crucial juncture, as the PiS party sought to exert influence over the Constitutional Tribunal, a linchpin in upholding the constitutionality of legislation.
Subsequently, the PiS government extended its reach to the National Council of the Judiciary (KRS), the body responsible for nominating judges, by permitting politicians to assume a role in appointing council members. This controversial move cast a shadow over the council’s autonomy, drawing vehement criticism from the European Network of Councils for the Judiciary (ENCJ). The repercussions loomed large, potentially even leading to Poland’s expulsion from this influential international organization.Adding to the tumult, the Sejm, Poland’s lower house of parliament, made a contentious bid to lower the retirement age of Supreme Court judges (European Commission, 2018). This maneuver was met with sharp disapproval from the European Court of Justice (ECJ), which raised concerns about its detrimental impact on judicial independence.In a strategic move, the PiS party established a disciplinary chamber within the judicial system, staffing it with their own appointees (Davies, 2023). This chamber wielded significant power, allowing the government to pressure judges by imposing sanctions such as salary cuts and even dismissals. These penalties targeted judges who dared to question the legitimacy of judicial reforms or appointments, effectively stifling dissent within the judiciary and chipping away at the bedrock principle of an independent judicial system.To tarnish the judges’ reputation, the PiS party launched a concerted campaign, painting them as complicit in a corrupt and elitist system. This calculated rhetoric served a dual purpose, justifying the government’s consolidation of power while eroding public confidence in the judiciary. Utilizing a range of tools, from social media to advertising and even deploying professional trolls, the party spared no effort in smearing judges and undermining their credibility.
In the face of Poland’s judicial challenges, the European Union (EU) has launched a series of measures to address the erosion of the rule of law within the nation. These efforts encompass the Rule of Law framework, Article 7 proceedings, and the implementation of interim measures by the European Court of Justice (ECJ) to suspend the activities of Poland’s contentious disciplinary chamber.However, achieving unanimity among EU member states in pursuing punitive actions has proven to be a formidable challenge. The EU is now contemplating using direct monetary sanctions and reductions in funding for countries that fall short in upholding the rule of law. These fiscal tools hold the potential to exert substantial financial pressure on Poland, compelling adherence to EU values and democratic principles.Moreover, it’s noteworthy that several EU member states have refused to honor European arrest warrants, citing grave concerns regarding the state of the rule of law in Poland. This collective response underscores the gravity of the situation and the EU’s commitment to preserving the integrity of its democratic values.
Some scholars contend that courts represent one of the most vital defenses against the surging wave of populism, emphasizing that allocating resources to cultivate widespread support for the judiciary places them in the optimal position to safeguard liberal democracy. Fostering popular backing for a judiciary rooted in democratic principles is a cause worth pursuing fervently(Gooding, 1990). In this light, we have witnessed the mobilization of masses in Poland rallying behind the cause of judicial independence a heartening sight to behold.Despite the Law and Justice Party’s efforts to undermine the integrity of Poland’s justice system, champions of an independent judiciary have stood their ground resolutely. The ruling party faces opposition not only from within Poland’s borders but also from abroad. The resounding backlash directed at the party underscores that the third branch of government still enjoys robust support in Poland and across Europe.Nonetheless, it’s crucial not to overestimate the courts’ overall willingness and capacity to ward off the perils of populism. While courts undeniably possess the ability to shape public opinion on specific substantive matters, the empirical evidence at our disposal suggests that, over the long term, courts tend to reinforce rather than spearhead broader political shifts toward or away from liberal democracy.
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Davies, C. (2023). Hostile Takeover: How Law and Justice Captured Poland’s Courts. Freedom House. https://freedomhouse.org/report/analytical-brief/2018/hostile-takeover-how-law-and-justice-captured-polands-courts
De Witte, M. (2019, January 9). Explaining the surge in populist, politics movements today | Stanford News. Stanford News; Stanford University. https://news.stanford.edu/2018/12/26/explaining-surge-populist-politics-movements-today/
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Garlicai, L. (2020). Constitution Making, Peace Building, and National Reconcilation,The Experience of Poland. United State Institute of Peace.
Gooding, J. (1990). Gorbachev and Democracy. Soviet Studies, 42(2), 195–231. https://www.jstor.org/stable/152078
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Kulbaczewska-figat, M. (2023). Poland’s Opposition Is Failing to Turn the Right-Wing Tide. Jacobin.com. https://jacobin.com/2023/06/poland-liberal-opposition-civic-platform-donald-tusk-law-and-justice-far-right
Repucci, S. (2018). The Global Implications of Populism on Democracy. The Henry M. Jackson School of International Studies.