Poland: Behind the Justice Reform
New Political Scenarios and Protests
Matteo Tacconi 28 July 2017

Protests were organised and attended by large numbers of people in Warsaw and in many Polish cities all last week against the Law and Justice Party (PiS) the conservative and nationalist party that currently has an absolute majority in parliament and which, thanks to this, appears to be the only player in the government led by Beata Szydlo.

Protests were sparked due to three recently approved laws that restrict the autonomy of the National Judicial Council (KRS), the Supreme Court (SN) as well as local courts, disturbing the balance between the different branches of government. Yesterday, however, Polish President Andrzej Duda announced that he would exercise his right to veto the first two provisions.

This was rather an unexpected move. Until now Duda has been an executor of the majority’s will and has not managed to shake off the image of being subordinate to Jaroslaw Kaczynski, founder and leader of the PiS, as well as the government’s undisputed ‘director’ despite having no official position.

Duda has explained that, as they stand, these two laws “do not provide a sense of security and justice in the country”, where it is now generally thought that the judiciary is inefficient and represents a caste that is distant from the people. It is no coincidence that of these three laws the only one that Duda did not vetoed is the one concerning local courts, affecting relations between the justice system and citizens more closely.

Parliament now has two months to redraft the other two, and it seems that Duda will want to be part of the process far more than allowed so far by Kaczynski and Justice Minister Zbigniew Ziobro who has become increasingly influential within the government and the party. There is a hypothesis now circulating in the Warsaw press according to which Duda’s veto is the result of the lack of consideration he has received so far, both in his desire to slow down Ziobro’s ascent by moving to the centre and showing that he is in some way sensitive to protests.

The president and the minister are ambitious and relatively young. Duda was born in 1972 and Ziobro in 1970. According to various observers, they are both aspiring to succeed Jaroslaw Kaczynski. At the moment, however, Kaczynski’s immense power does not seem to be up for discussion. Further confirmation lies in the fact that his MPs voted in favour of these laws last week as ordered by their leader without any conscientious objections.

The first law concerns the National Judicial Council (KRS), the judiciary’s self-governing body. It puts an end to the mandate of 15 of its 25 members, transferring power to appoint them from the judiciary to parliament, with a 3/5 majority. The second law concerns the appointment of the presidents and deputy presidents of local courts, over whom the Justice Minister increases his control. Finally, the third law brings to an end the mandate of the Supreme Court’s (SN) 83 judges, at the third level of justice, unless the president of the republic, advised by the Justice Minister, does not order otherwise. New members will be appointed by the National Judicial Council.

Many have observed that there is the risk that the PiS, relying on support from MPs representing the Kukiz 15, a movement that has often supported reforms, could definitively gain control over the justice system. This would put an end to a match started at the end of 2015 with the dispute concerning the Constitutional Court (TK), which evaluates parliament’s laws, occupied by force by the PiS.

This risk involving total control over the judiciary has not been eliminated by Duda’s veto. Parliament, with its three-fifth majority, has the right to send these laws straight back to the president without amending them.

Despite the president’s decision many citizens took to the street. This veto was their victory, but many believe that keeping pressure on power, a power they do not trust, is the wisest choice they can make. The justice reforms were, however, seen as a critical and dangerous step. Ever since the PiS returned to lead the country following the October 2015 elections, putting an end to Donald Tusk’s liberal governments, there have already been a number of street protests, each organised on the basis of a democratic cornerstone they considered violated by a reform implemented by the PiS. The reforms that caused the most controversy included laws addressing state radio and television, the educational system and surveillance over on-line communications. Never before, however, the line separating democracy from a “hybrid” regime has been considered so thin.

One thing that has surprised people over the past few days has been the determination with which the PiS engineered these reforms, even when faced with the popular protests and various statements of disapproval arriving in large numbers from abroad, at times even anomalously, as in the case of the ones made by the Czech Republic’s Constitutional Court. In 2016, when Polish women protested against a draft law that would have almost totally abolished the right to abortion, in a country that already has a very strict law on this subject, Kaczynski refrained. This time he did not. The point is that the law on abortion was not the PiS’s fundamental objective, but rather a concession to the Catholic Church with which Kaczynski has a deceptive relationship, just like all Polish politicians (if one becomes an enemy of the Church cannot govern), even if in his case there is a greater readiness to concede. Justice reform is instead an inalienable point in his idea of Poland. However, in addition to improving its efficiency, this involves dealing with history and it is at this point that one understands the attempt to restrict the independence of judges.

According to Kaczynski and many representatives of the PiS, the judiciary is the symbol of a heinous pact entered in 1989 between the Communists and Solidarnosc’s moderate wing (today’s liberals should one wish to simplify matters). Kaczynski, who was active in the hard wing of the trade union/political party that freed Poland from the regime, believes that negotiations between Communists and liberals that paved the way for the democratic transition, compromised the national purification process, allowing the Communists to survive politically and thereby left the country exposed to the influence of the old regime and hence the Russians. At the same time, Communists and liberals supposedly allowed the country to bow to another external power, the market, which they would jointly take advantage of becoming an elite and wealthy to the detriment of the people.

According to Kaczynski, it is mandatory to correct the course of events. The work done by the PiS since it returned to power has been driven by the desire for moral integrity and finds in the judiciary the perfect place for launching its authoritative final assault.

Kaczynski is aware of the crucial importance of this match. In the debate in the Sejm (parliament’s lower house) on reforming the Supreme Court, he showed great nervousness, even reaching the point of blaming members of the liberal opposition for the death of his twin brother Lech, the former head of state, who died in 2010 in a tragic plane crash in Smolensk. Kaczynski believes that the crash may have been organised by Russia and that the liberals, in power at the time, did not investigate the matter in depth. This is a narrative that has poisoned Polish political life, but that in parallel is one of the secrets of the PiS’s success, so clever in exploiting those parts of the electorate sensitive to the idea of a Russian plot or that of an internal enemy. And it is this that in some way returns one to the blasphemous pact of 1989 and hence to the battle for control over the judiciary, which is supposedly the guardian of that order. The current crisis cannot simply be reduced to a debate between those supporting a liberal democracy and those wishing to get rid of it.

The ideas and the actions taken by the Law and Justice party present historical continuity. Between 2005 and 2007, when the party came to power albeit in a coalition with other right-wing parties, it had already tried to clean things up a little. As president Lech Kaczynski had launched the Fourth Republic’s slogan; a new state, morally re-founded and capable of regaining control over its own history and its own sovereignty. This was a sovereignty threatened also by the European ideology and the restrictions it tends to impose. This is why Kaczynski and the PiS are irritated by the reservations expressed by Brussels about many of their reforms.

Today’s PiS does not differ greatly from that of the past. What has changed is greater tension concerning sovereignty, in line with the times. But the battle plans remain the same and the idea of a social, more equal, proud and strong Poland (the PiS is implementing a great deal of welfare) and with a relationship between the government and the people that is characterised by few filters, has not changed.

Kaczynski’s vision of Poland is opposed by a different one, embodied at a political level by the Civic Platform (PO), the main liberal party. In this vision, there is a greater availability to integrate with Europe and the world, to be part of a globalised system (which the PiS instead opposes), avoiding, however, to deprive the country of its historical and cultural characteristics.

This Poland, which cannot manage to understand the one envisaged by Kaczynski (this is probably a limitation), denouncing the authoritarian project and accusing it of distancing itself from Europe, is also the one that during almost two years of populist government has expressed its opinions on the streets. However, something has changed on the streets in these last few days. Until very recently the driving force for these protests was the Committee for the Defence of Democracy (KOD), a movement that is the expression of civil society. It was founded at the end of 2015 by a computer technician called Mateusz Kijowski, who recently fell into disgrace and has been replaced by Krzysztof Lozinski who now leads the KOD. In just one moment of disorientation experienced by the liberals, defeated in the elections held in October that year and orphans of former premier Donald Tusk, that became president of the European Council, the KOD was able to mobilise the people and maintain a high threshold of indignation. Some of their protests were attended by large numbers of people, but its limitation was always the age issue. The KOD brought to the streets above all middle-aged citizens, people who had supported Solidarnosc and who considered Kaczynski’s reforms the beginning of an authoritarian shift. Very few young people ever took part in its protests.

Now the young have also taken to the streets and the KOD is not the only group coordinating protests that have become national and intergenerational. An urgent need to defend democracy rather than the judges has been felt and the critical mass in the streets has perhaps depended also on the fact that deterrents fielded so far by the EU against action taken by the PiS concerning the press, justice and other sectors have not worked. They have been simply ignored by Kaczynski.

In order to win the battle, the protest movement must open significant rifts within the PiS and the social front supporting it. This will not be easy. A recent survey shows Kaczynski’s party at 37%. Between now and the 2015 elections his popularity has in practice never fall below 30%. And it is too soon to understand whether Duda’s veto will lead to unexpected dynamics.

Translated by Francesca Simmons



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