Two scenarios for the rule of law in Poland after the presidential elections
Independence of the judiciary and the rule of law have been almost completely absent from the presidential campaign in Poland. But the result of the elections will fundamentally affect these areas. We discuss two scenarios: if the incumbent president Andrzej Duda wins, and if his challenger Rafał Trzaskowski wins.
Andrzej Duda has insisted that his second term guarantees that governing Poland will be coordinated between the government, parliament and president. In the campaign, he has also emphasized that the ruling United Right’s social policy will be continued. Unlike the campaign conducted at the turn of 2020, the topic of revoking privileges for judges has not been a part of Duda’s narrative before the second round.
Nor has the rule of law been a main topic in the campaign of his rival Rafał Trzaskowski, although in an interview with TVN24 he stressed that “Duda has signed laws that have politicised all the independent institutions, and he has set his hand to the destruction of the courts.”
Duda’s second term
It is almost certain that in his second term Andrzej Duda would further facilitate the ruling majority’s destruction of the independence of the judiciary.
In Poland, we theoretically have a semi-presidential system (in practice it has been parliamentary since 2015)—a system whose axis of political power is the person of the rank-and-file MP Jaroslaw Kaczyński. In this system, the President of the Republic of Poland performs a symbolic role, and is a faithful ally of the ruling majority.
President Duda has signed a series of key laws, rarely exercising his right of veto. In summer 2017 he vetoed laws on the Supreme Court (SC) and the National Council of the Judiciary (KRS)—but not because they contained legislation which ran contrary to the Constitution and EU law. They granted great powers to the Minister of Justice. The presidential plans for the Supreme Court and the KRS, which were finally adopted in December 2017, taking into account amendments of essential importance for the United Right, transferred these powers to the President. The laws Duda signed still contained legislation which was incompatible with the Constitution and EU law, as confirmed by the EU’s Court of Justice in its judgement of June 2019 regarding the Supreme Court law.
In Poland, under the rule of Duda and the United Right, a triumvirate was also formed consisting of the president, the government and the Constitutional Tribunal. In the current political model, both president and the Constitutional Tribunal are no longer institutions limiting executive power, but bodies that enable the ruling majority to do what it pleases, even when it is to the detriment of the quality of democracy and the rule of law.
Duda took advantage of the right to submit motions to the Constitutional Tribunal. In doing so he helped to legitimise the provisions enacted by the United Right, remove provisions from the Polish legal order that are inconvenient for the government, and save the ruling majority when the political cost of adopted laws exceeded the benefits—as in the case of the amendment to the Act about the Institute of National Remembrance (the amendment passed in January 2018 introduced a crime of attributing responsibility, against the facts, to the Polish state and Nation for Nazi crimes of the Second World War; this provision was repealed by parliament in June 2018; in January 2019 the Constitutional Tribunal invalidated other provisions).
If Duda wins on 12 July, it can be assumed that he will swear in the new judges of the Constitutional Tribunal accepted by the ruling majority. In 2021 the term of office of the judge of the ‘old’ Constitutional Tribunal, Prof. Leon Kieres, will expire. In addition, Duda will probably not receive the oath sworn by those judges on the CT who were legitimately elected by the Sejm before the United Right came to power in 2015.
President Duda would probably still play a huge role in the process of appointing to the SC those judges who are evaluated positively by the ‘neo-KRS’, a body which (according to the Supreme Court ruling of December 2019 and the resolution by three Supreme Court chambers of 23 January 2020) is not independent.
The Supreme Court’s repeatedly amended Act of December 8, 2017 gave the President of the Republic of Poland the power to determine the number of judges on the SC. The president defines this number in the Supreme Court regulations, which he publishes. The SC’s Regulations of June 14, 2019 state that there are 125 judges on the SC. Currently, almost one hundred of these seats are occupied. This gives the President the opportunity to further influence the composition of the Supreme Court, and change the proportion between the correctly appointed judges of the ‘old’ SC and those persons sitting on the SC who have not been properly appointed.
President Duda would probably continue to appoint common court judges who have been positively evaluated by the ‘neo-KRS’. In the light of the resolution by the three chambers of the Supreme Court from January 23, 2020, the courts’ independence could be tested against the judges of common courts appointed by the ‘neo-KRS’ on the basis of the criteria presented by the EU Court of Justice in its judgement of November 19, 2019.
During his second term Andrzej Duda could also continue his slanderous, hateful, committed campaign against judges, during his meetings with voters in Poland, in his appearances on TVP, in international forums and in interviews for foreign media. It would come as no surprise if President Duda insulted foreign lawyers who took an interest in the state of democracy, the rule of law and the protection of human rights in Poland, as he did in the past.
A new president
If Rafał Trzaskowski assumed the office of the President of the Republic of Poland, this would at least significantly impede the United Right’s further limitation of judicial independence, and could even paralyse it.
Jarosław Kaczyński’s plans for further changes to the judiciary include a change in the structure of courts, which will allow for the individual ‘verification’ of common court judges, as well as the possible transfer of judges to courts in remote areas of the country, which may lead to many judges leaving the profession. These plans were only postponed when the government had to give priority to its response to the COVID-19 threat.
The new President could get involved in actions to prevent the further erosion of the rule of law in many different ways. In addition to rudimentary issues such as respecting the Constitution and exercising his right of veto, and referring draft laws to the Constitutional Tribunal under its prior control, the new president could refuse to swear in any persons recommended by the ‘neo-KRS’ to become judges on the Supreme Court and the common courts.
He could also appoint a public team of legal experts attached to the President, or cooperate with the Senate Advisory Team for the constitutional review of the law, to which Senate Marshal Tomasz Grodzki has appointed outstanding representatives of the legal sciences. He could also invite the Venice Commission to issue opinions on draft laws.
The President could also use the legislative initiative. Although today it seems that no presidential projects would have a chance of being passed, considering the United Right’s majority in the Sejm, if Trzaskowski won, a government reshuffle may take place, which in turn might lead to the break-up of the United Right camp; we must recall that the government is a ruling coalition, in which PiS is merely the largest member. Nothing is certain.
The new president could also use his statements and other speeches on public television, as well as on national and international forums, in other media in Poland and abroad, to tell the truth about the changes in the courts which the ruling majority has forced through since 2015, and their consequences for the constitution and the protection of the rights and freedoms of individuals.
The President—as well as the First Lady—could also establish or patronise various other educational initiatives targeted at Poles of all ages, teaching constitutional patriotism—also serving as an example themselves.
This kind of involvement by the new president would be particularly important, especially as in the second half of 2020 the term of office of the Commissioner for Human Rights, Dr Adam Bodnar, will come to an end. Next to the First President of the Supreme Court, Prof. Małgorzata Gersdorf, Dr Bodnar has been a symbol of the fight for the rule of law in Poland, and is one of its last central institutional bastions.
The second round of presidential elections on July 12 will determine whether or not the erosion of the rule of law will continue in Poland.
Translated by Jim Todd
The article was published in Polish at OKO.press.