Only Poles can save Polish democracy

Massive protests in Warsaw have made headlines around the world in recent weeks. Poles are demonstrating against legislation enacted by the ruling Law and Justice (PiS) party that would lower the retirement age of Supreme Court justices, effectively forcing out all judges over the age of 65 and allowing the PiS to pack the court with its own tame justices.

The Polish constitution provides for an independent judiciary, and sets the term for the First President of the Supreme Court at six years. That means judges cannot be removed by legislation—at least not constitutionally. Yet the new law enables Polish President Andrzej Duda to replace up to three-fifths of the Supreme Court’s 93 justices, including the chief justice, in 2018 alone.

Moreover, the government has added two new chambers to the court, expanding the number of justices to 120. A new Disciplinary Chamber will be used to threaten noncompliant judges, and an Extraordinary Audit and Public Affairs Chamber will certify the validity of electoral results. The latter chamber will also have the authority to investigate past electoral complaints, effectively empowering the government to overturn court decisions dating back 20 years. The PiS is seizing full control not only over judicial decision-making in the present, but also over the past two decades of legal precedent.

As the PiS accelerates its takeover of the judiciary, many of those who oppose the new law have placed their hopes in the European Union. The European Commission has initiated ‘infringement proceedings’ against Poland in response to the PiS’s violations of judicial independence, and that could pave the way for the European Court of Justice to suspend the law’s validity until the matter is considered.

The problem is that the ECJ works very slowly, which means that we could confront a situation recalling that of Hungary in 2014, when the European Court of Human Rights ruled against Prime Minister Viktor Orbán’s government after it removed Supreme Court Justice Andras Baka before his term ended. But the ruling came too late. The Hungarian government paid a €100,000 fine, but neither Baka’s position nor the rule of law was restored.

Similarly, in a case spanning 2016 and 2017, the ECJ eventually ruled last July that the Polish government’s authorisation of increased logging activities in the Białowieża Forest violated EU law. But the Polish government simply ignored the ruling, and the illegal logging continued until April 2018, when the ECJ finally threatened to fine Poland €100,000 per day. By that point, 190,000 cubic metres of forest had been logged. The situation today is no different: if the ECJ was going to block the PiS’s judicial reforms, it should have done so months ago.

A second problem is even more serious. Whereas 49% of Poles believe that the rule of law is under siege in Poland, 27% hold the opposite view, and 24% have no clear opinion. And though thousands—perhaps tens of thousands—of protesters have gathered in front of the Supreme Court in recent weeks, some 8 million people voted for the PiS in the 2015 election. Current polls show that the PiS’s popularity has risen to around 40%—more than twice that of the previous ruling party, Civic Platform. This suggests that while Poles may not agree with the PiS’s judicial reforms, they are not keen to risk much for free courts—or for liberal-democratic principles generally.

Accordingly, PiS Chairman Jarosław Kaczyński can now declare: ‘The European Commission will not break Poland’s will regarding the completion of reforms … If we do not reform the judiciary, other reforms will have little sense, because sooner or later they would be negated, withdrawn by the courts that we have now.’

Kaczyński knows full well that his party commands the most public support, and that the ECJ will most likely not be able to act in time. In the absence of an effective domestic opposition, there is little standing in his way. What people expect from populists is precisely their radicalism and readiness to do what they say. This is why people accept ridiculous acts like destroying the Białowieża Forest, even if they disagree with it. And it is why predictions based on public polls make little sense.

What about the courts? Almost all judges believe that the PiS is violating the constitution, which is why Duda is filling the newly created chambers with PiS Ministry of Justice officials and MPs instead of actual judges. One option, then, would be for Poland’s judges to go on strike. If Poland’s courts grind to a halt, Poles will quickly realise that the law is like air: you only notice it when it starts to run out.

But this is not even discussed in Poland. Judges will not strike, because they are not politicians, and they are not eager for a fight. On the contrary, some of their actions so far have made the situation even worse. They are making serious mistakes in the current situation; the chief justice, for example, just went on vacation in order to remove herself from the line of fire. A few months earlier, she happened to show up with Duda at the swearing-in of an unconstitutionally appointed Constitutional Tribunal justice.

Moreover, the PiS is exploiting the fact that a judicial strike would appear unseemly. Populists can get away with undermining the authority of democratic institutions; the authorities themselves cannot. That is why populists must be defeated politically. Pointing out their violations of the constitution and protesting make sense only to the extent that they bring the opposition closer to electoral victory.

The law—like the economy—has served as a stand-in for politics for too long, embodying the idea that, with no alternative to liberal democracy and free markets, politics can be reduced to technocracy. The rise of populism in Poland and elsewhere is a reminder of the vapidity of that idea. Only Polish democracy can save the Supreme Court, not the other way around.