By Anna Gwiazda
The European Commission has just initiated an unprecedented inquiry into the rule of law in Poland. The aim of the inquiry is to assess whether laws passed by the newly elected right-wing Law and Justice Party (PiS), which curb the power of the country’s Constitutional Tribunal and the state media, infringe upon the democratic rules of the European Union. On Jan. 13, 2016, the Commission’s vice president, Frans Timmermans, announced a preliminary assessment under the rule of law mechanism. This mechanism is used for addressing infringements to the rule of law in any of the EU's 28 member states and allows the European Commission to put pressure on a member state to change any measure considered a "systemic threat" to fundamental EU values. In addition, the Council of Europe’s Venice Commission will assess whether the new law on Poland’s Constitutional Tribunal violates fundamental principles enshrined in the Polish Constitution.
Since the fall of communism in 1989, Poland has been a transformation success story. The Bertelsmann Transformation Index confirms this, ranking Poland fifth of 129 developing and transitioning countries in its assessment of political transformation toward democracy and a market economy.
In my recent book Democracy in Poland, I argue that institutional accountability is vital for the development of a stable democracy because it provides a means of controlling the government. However, the PiS’s most recent actions pose a threat to accountability. The enactment of the Dec. 22, 2015 act amending the law on the Constitutional Tribunal is of particular concern. It will result in ineffective government accountability, which, in turn, will have negative consequences on the quality of democracy in the country.
Poland's New Government Lost No Time Changing Laws
The PiS won the Oct. 25, 2015 parliamentary election with 37.58 percent of the vote. As a result, the PiS received the majority of seats in both the upper and lower Chambers of Polish Parliament: 235 seats in a 460-seat Sejm, and 61 seats in the 100-seat senate. They formed a single-party majority government, led by Beata Szydło.
The PiS government is supported by party-backed President Andrzej Duda, and party leader Jarosław Kaczyński clearly influences decisions made by the president and the prime minister, not to mention opinions of Law and Justice Party deputies in the Sejm and the Senate. The Law and Justice Party lost no time in instigating major changes to the institutional status quo, and it has already introduced legal changes to the Constitutional Tribunal, the civil service, and the media.
Amendments to the law on the Constitutional Tribunal were introduced hastily; they were tabled in mid-December and passed a week later, and were followed by presidential approval on Dec. 28, 2015. The law went into effect immediately, which was unheard of in the democratic history of Poland.
The new law dramatically rewrites the functioning of the Constitutional Tribunal—a 15-judge court that rules on the constitutionality of laws passed by parliament. For one, it raises the bar for Constitutional Tribunal rulings from a simple majority to a two-thirds majority, while requiring 13 judges to be present instead of the nine previously required for the most contentious cases. Additionally, the law enforces delays of three to six months between the time a ruling request is made and a verdict is reached, compared to the mere two weeks required in the past. Finally, the president or the minister of justice can initiate disciplinary proceedings against a Constitutional Tribunal judge, which was not the case in the past.
Constitutional Tribunal Law Weakens Institutional Accountability
For two decades, Poland had a consensus that the principle of the separation of powers should be one of the foundations of Polish democracy, regardless of which constitutional model was chosen.
From regime change in 1989 until the recent amendments in 2015, the Polish Constitutional Tribunal provided additional checks on the exercise of executive power and assumed an active role in constitutional matters through the development of strong judicial review and the enforcement of important accountability functions. Its role has now been undermined because the new law changes the functioning of the court and prevents the Tribunal from working effectively. Hence, the Constitutional Tribunal will not be able to act as an agent of government accountability, which means that the other branches of government will have unlimited power.
In addition, the parliament, the president, and the media are crucially important for institutional accountability. However, with the domination of the Law and Justice party in the Sejm and senate, there has been an obstruction of the accountability function of the parliament.
Although the president could keep the government accountable in practice through his veto power and referrals to the Constitutional Tribunal, to date the president has been supportive of all PiS-supported legislative acts.
The media, too, are extremely important. Free, uncensored media has the ability to act as an early warning system to detect any irregularities or abuses of power. However, the act passed as of Dec. 30, 2015 has allowed for changes to be made to the existing law. Polish public TV and radiobroadcasters are now under direct government control.
Countering the Erosion of Democratic Institutions
The role of the opposition in parliament as well as international pressure to adhere to the rule of law will play an important role in slowing the erosion of Poland’s democratic institutions. Civic Platform, represented in Polish government from 2007 to 2015, has become the main opposition party, having won 24.09 percent of the popular vote and 138 seats in the Sejm following the 2015 election. In addition, a new political party called the Modern, formed in May 2015 by liberal economist Ryszard Petru, has become very vocal in their opposition to the current government.
Civil society has been mobilized, too. Since the PiS took power two months ago, several large demonstrations have taken place. Most recently, 20,000 demonstrators gathered in Warsaw and other prominent Polish cities to protest against PiS’ control of state media. The scale of these protests is out of the ordinary in Poland.
International pressure exerted by actors such as the European Union and the Council of Europe can also act as an important means of keeping the Polish government accountable. The European Commission’s recent inquiry into whether the new laws in Poland infringe upon EU democratic rules is an important step.
The success of Polish democracy today has been based on the existence of strong democratic institutions. Recent events in Poland will test this foundation. Now, new agents of accountability such as vocal partisan and civil opposition, in addition to the exertion of international pressure, are necessary to ensure Poland’s democratic future.
Dr. Anna Gwiazda is a lecturer in comparative politics at King’s College London. Her most recent book Democracy in Poland (London: Routledge, 2016) examines the quality of democracy in Poland from the collapse of communism in 1989 up to the 2011 parliamentary election. Anna Gwiazda is one of 250 country experts who are currently working on the forthcoming edition of the Bertelsmann Stiftung’s Transformation Index BTI 2016 which will be released in February.
[Photo courtesy of Pjotr Drabik]