University of California, Los Angeles

Poland’s Populist Party Changing the Court System: a threat to democracy? by Carolyn Stephens @ UCLA

In 2016, the populist Law and Justice party (PiS) of Poland gained a majority in the lower house of parliament without a coalition. The party consequently used their legislative power to adjust the judicial and electoral systems in their own favor. This legislation has caused political polarization as evidenced by constant protest and support of the party’s actions. Support of PiS is derived from trends of populism and Polish nationalism counter to liberal values lauded in the rest of Western Europe and by the previous Polish administration. The decline of Poland is particularly concerning because it was once considered an exemplary transitional democracy, yet its democratic institutions are being dominated by a single party. These political changes illuminate the vulnerability of Eastern European countries to populist voting trends and pose a threat to the European Union which defends democratic values. Analysis of both legislation produced by PiS and the populist rhetoric which accompanies the legislation evidence an undercutting democratic institutions and values.

According to Freedom House scorings there has been slight democratic decline in Poland since 2014, but from 2016 to 2017 the democracy score of Poland increased from 2.32 to 2.57. This scoring is based on a scale from 1 to 7, in which 7 is the least democratic. The two categories which most contributed to the overall increase of the score (each increasing by 0.50) and democratic decline are National Democratic Governance and Judicial Framework and Independence. The scoring of Judicial Framework and Independence is because of a “far reaching reform of the Constitutional Tribunal that curbed its ability to function as an effective oversight body, thereby threatening rule of law in Poland” (Freedom House). The changes of the judicial system threaten basic tenets of democracy. It limits the checks and oversight which the judicial system has over legislative authority in order to create balance and assure the maintenance of the constitution.

The trend of right-wing populism is based on the promise of a decrease in political corruption from the liberal elite and a claim of Polish identity over European identity. However, the Freedom House score still rates corruption at a relatively high 3.50, where it has remained since 2014 (Freedom House). Thus, the anti-corruption rhetoric in populism is not credible in positively reforming democratic governance.

Those inside the Law and Justice party disagree with accusations of democratic decline, arguing that Poland is upholding democracy by being committed to Polish voters. There is an obvious populist trend in the stated commitment of the Law and Justice party to “clean up Poland, after liberal and corrupt elite were out of touch with Christian and patriotic values” (Politico). The spokesperson for the Polish President Andrzej Duda invokes a Polish political identity by writing, “Our country is now run by politicians accountable to Polish voters, not German, British or French left-wing intellectuals” (Magierowski). This statement is backlash against criticism of the Law and Justice party, mostly stemming from Brussels and the European Commission, accusing a breach democratic and European values in the electoral reforms. The Law and Justice party demonstrate Polish nationalism when they denounce “Eurocrats [as] good at debating relocation quotas for refugees, but [unable] to strengthen border controls” (Politico). The rhetoric exhibited by the spokesman of the Law and Justice party clearly represent Polish nationalism which is a strong indicator of populism. Populism evidences democratic decline because it lacks a plurality of perspectives in government.

The nature of such reforms to the Polish government which the Law and Justice party enacted are startling. The PiS party has “curbed public gatherings, increased control over the news media, undermined the independence of the Civil Service and the prosecutor’s office, and restricted the activities of nongovernmental organizations” (Santora). The institution of democracy assumes that parties with their own particular agenda can abuse their legislative power. However, a critical check on this danger of democracy is through freedom of press and assembly, judicial oversight, and nongovernmental powers which ought to act independently of other governmental institutions. By imposing on these liberties and institutions the Law and Justice party poses a threat to democracy. Restructuring of the judicial system augments the control the Law and Justice party has over the courts and pushes out judges of oppositional parties.

The judiciary changes are the most indicative of a sharp change while the party is in power with lasting effects to maintain power of the Law and Justice party. The legislation changes the composition of the Supreme Court by adjusting the retirement age and forcing out a “little less than half of the the roughly 80 active judges, including the court’s president, Malgorzata Gersdorf,” who actively critique’s the legislative actions (Santora). The judiciary changes made by the Law and Justice Party have far reaching effects. In Poland, the Supreme Court validates voting, so these changes allow the party to conduct elections with oversight of their own party which favors their success. The president of Poland and head of the Law and Justice party disputes these claims insisting that: “‘This view that it’s an abuse of democratic standards is unfounded … It’s the opposite. What is happening is a deepening of democracy. The judges will no longer rule themselves. They aren’t some extraordinary caste; they are servants of the Polish people’” (Santora). This, however, has the objective of advancing the perspective and motivations of his own party. Further, by curbing the freedom of independent outlets of expression in media and nongovernmental organizations his party limits the voice of the Polish people which the judges are supposed to be of service.

Overall, the decline in Freedom House score, populist rhetoric of the party in power, overhaul of the judicial system, and limiting of public freedoms indicate that Poland is beginning to experience democratic decline. Observing Poland is critical because it is a post-communist nation that was exemplary in transitional democracy. However, as a result of tensions developed between Polish nationalist leaders of the PiS party with the Eurocentric liberal ideas Poland has seen an erosion of democratic institutions.

*photo by Adam Chelstowski/AFP/Getty Images



    March 16, 2018 at 8:35 pm

    I was interested in the comparisons between Poland and Hungary’s democratic backsliding. One of the biggest similarities is the regime’s forceful overtake of the judiciary. Just like in Poland, Hungary’s government has changed the retirement age for judges and have centralized appointing powers to the majority party. Also, the similarity of restricting fair news and media within the country is an important tool of the regime to control the perceptions of its citizens and to maintain compliance.

  2. Conor Gleeson

    May 7, 2019 at 9:01 pm

    I would argue that Poland’s political polarization started far earlier than 2016, especially as PiS’s absorption of the Poland Self-Defense and Christian League of Polish Voters, both of whom were hard-right and very specific constituencies. That addition plus their growth in rural areas by taking the Polish People’s Party platform, who were traditionally the ones to offer subsidies in those areas meant PiS were able to get within striking distance of a majority in 2015 while Civic Platform failed to consolidate its voters to the same extent. Freedom House itself admits that “Civic Platform and Law and Justice both remained polarized in 2012”. While I do agree with you that the judiciary battles in the past and doubtless yet to come will also serve as another round of radicalization for left and right-leaning Polish voters. I’ve been encouraged by the resultant “Coalition to Protect Democracy” (CPD), but they’ve seen significant infighting between all the involved parties and I honestly don’t see them mustering the percentage of votes needed to overwhelm PiS in the next Parliamentary elections. Hopefully CPD or Civic Platform will be able to mount a successful Presidential campaign so as to stymie PiS’s legislative agenda and reign in their destruction of the judiciary.

  3. Victoria Malloy

    May 8, 2019 at 12:46 am

    Using the Freedom House score and categories to analyze Poland’s policies is interesting. I agree the judicial changes are indicative of democratic erosion but I would argue the rhetoric is more worrisome. The people are more willing to accept anti-democratic policies if the leaders are able to frame it in a way that seems like it is helping democracy. Kaczynski and the PiS Party do this frequently, especially when they know the international community will frown on policies. It evolves into an “us vs them” “Poland vs the World” statement that many Poles believe in. The role of the people in these systems is very interesting as well, and how they react to policies such as the judicial policies can be telling of how ingrained the culture of democracy is.

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