Poland became a dictatorship in 2016


Klaus Bachmann

To person

is Professor of Social Sciences at the University of Social and Human Sciences in Warsaw. He deals with transitional justice, EU integration and international criminal law.

2015 was an unusual election year, even by Polish standards. While in previous years, in the run-up to elections, one could often get the impression that it was about a final battle between good and evil, about a decision between the downfall and the salvation of the country, everything was completely different in 2015. There was a tired, unimaginative election campaign in the course of which almost all parties signaled to their regular electorate that they could actually stay at home because the election result was already certain. The only ones who were really involved were the campaigners for the Law and Justice party (Prawo i Sprawiedliwość, PiS) and the small, newly founded party Poland Together (Polska Razem). The apathy of the opponents was all the more astonishing as 2015 was about more power than ever before: the presidential election was due in May and the parliamentary election at the end of October.

Because of internal party frictions and an exaggeratedly displayed certainty of victory, the candidate of the then ruling liberal-conservative civic platform (Platforma Obywatelska, PO), Bronisław Komorowski, lost the presidential election against an almost unknown outsider, MEP Andrzej Duda, the PiS party leader Jarosław Kaczyński Had sent races in order not to have to run for office himself. When Duda was raised, Komorowski's election victory was still considered certain, and Kaczyński had wanted to avoid risking his reputation in a hopeless election campaign. After Duda's success, the polls for the PiS rose, and for the first time since 2005 it had the prospect of winning the parliamentary election and appointing the prime minister.

This perspective evidently mobilized only the PiS supporters. The PO was internally divided and could not agree on a coherent campaign strategy. The left was even more divided and subsequently ran three rival election committees. Part of the bourgeois establishment, disappointed with the PO, had founded a new liberal party (Nowoczesna), which further weakened the conservative-liberal camp. As in Germany, in Poland the votes are converted into members of parliament according to the so-called D’Hondt procedure, which disproportionately favors large parties. In autumn 2015, with a turnout of just 50.9 percent and a result of 37.6 percent of the valid votes, the PiS not only became the largest party, but also achieved it in both houses of parliament - the Lower House (Sejm) and the Senate - also a whopping absolute majority of the mandates. The PiS could now rule through, but wanted more. Since then, the party has been working with revolutionary zeal to rebuild Poland's political system. In order to understand how this works, it is necessary to briefly look back at the constitutional order that was in force until then. [1]

Polish "checks and balances"

After 1989, Poland initially made do with some amendments to the old constitution, which dates back to the 1950s. In 1997 a non-partisan constitutional committee of the parliament then worked out a new constitution, which was adopted by referendum by a modest relative majority of the electorate. At the time it was drafted, the conservative national right was as fragmented as the left is today and not represented in parliament at all. Nevertheless, all political forces accepted the new constitution as a basis for business. It has been slightly changed several times since then, but the institutional structure has remained unchanged.

According to the 1997 constitution, Poland is a central state with elements of self-government at the levels of cities, municipalities, counties and regions. Although they have their own budgets and their own tax revenue, they have no influence on the passing of laws. Since then, the country has been ruled by a government under a prime minister, who is sworn in with his ministers by the directly elected president (and with absolute majority voting according to the French model) and who is responsible to parliament. The government can be replaced by a constructive vote of no confidence, but it cannot dissolve parliament itself. Only the president can do this if parliament proves unable to pass a budget or if a government cannot be formed. The president also has a veto right against ordinary laws, with which he can force parliament to either abandon a legislative proposal or to pass it with a three-fifths majority instead of the usual absolute majority. Such a veto then forces a government majority to compromise - either with the president or with the parliamentary opposition. The President can also refer laws passed by Parliament to the Constitutional Court (Trybunał Konstytucyjny) for review, which can collect them in whole or in part. Until 1999 such a verdict could still be overruled by parliament; since then, the judgments of the Court of Justice are "final and generally binding". The Constitutional Court, whose 15 judges are elected by the Sejm, has thus become the most important supervisory body for parliament and the government. This is all the more true when the president, the parliamentary majority and the government come from the same political camp.

Cold spots of the Constitutional Court

No sooner had the PiS won the 2015 parliamentary elections and formed a cabinet around Beata Szydło than the party set about turning the existing constitutional order off its hinges. It was set up to create a fourth republic. In 2010 she had presented a corresponding draft constitution, which, had it been implemented, would have turned the country into an authoritarian presidential democracy. [2] Because even after the 2015 election, a constitutional amendment was not easily possible - this requires a two-thirds majority in parliament - the government and the parliamentary majority initially focused on the Constitutional Court. There, judges who had been appointed by the previous governments set the tone. PiS party leader Jarosław Kaczyński likes to refer to the court as the third, democratically unelected chamber of parliament. Accordingly, the PiS was now keen to challenge the authority of the Constitutional Court and at the same time to fill it with as many "own" lawyers as possible.

A pretext was provided by the recently voted coalition of PO and Polish People's Party (Polskie Stronnictwo Ludowe, PSL), with whose votes the Sejm elected five constitutional judges at the beginning of October 2015, although two of the five judges' posts were only vacated in December, i.e. after the parliamentary election were. This was made possible by a corresponding change in the law in June. The PiS had filed a complaint with the Constitutional Court. After the parliamentary elections, the PiS withdrew the lawsuit, whereupon the PO, suspecting what was to come, resubmitted it in its own name. As expected, the Court ruled that the election of two judges was unconstitutional. But President Duda refused to swear in the three other judges. Almost at the same time, the parliamentary majority declared the entire election of the five judges by the previous parliament to be invalid and sent their own five judges on December 2nd, who were sworn in on the night of December 3rd in the presidential palace. But court president Andrzej Rzepliński did not assign any cases to the judges concerned. As a result, there was no longer a quorum in the court for judgments on disputes over competence between state organs. The constitutionality of planned laws with which the PiS parliamentary majority wanted to overthrow the court could only be decided by a chamber or an understaffed plenum. The government around Szydło in turn did not recognize several judgments and refused to publish or implement them.

This was sharply criticized by the law faculties of the major Polish universities, by the Venice Commission of the Council of Europe, which advises EU states on constitutional law, by the European Commission and the European Parliament, which, however, did not lead to the PiS giving in. When the President of the Court Rzepliński resigned from office as planned a year later, in December 2016, President Duda appointed the Poznan social judge Julia Przyłębska as his successor. However, the law professor Mariusz Muszyński soon became the actual head of the court; Przyłębska gave him a general power of attorney after her husband was appointed ambassador in Berlin.

Up until 2015, when electing constitutional judges, the Sejm made sure to send independent and, if possible, non-partisan constitutional lawyers who were mostly supported by a large majority. The judge election in December 2015 testified to the PiS's urge to deviate from this path and to select candidates who are as dependent on the government as possible and who are more isolated in legal circles. One of them, Lech Morawski, explained to an astonished audience at a panel discussion at Oxford University in May 2017 that he not only represented the constitutional court, but also the government. [3]

In fact, it would not have been necessary to use such methods to disempower the court in order to get rid of the majority of judges who tend to be critical of the new government. When the PiS won the parliamentary election, there were three judges and one female judge in the Constitutional Court who were elected between 2004 and 2015 with the support of the PiS parliamentary group. The party was able to fill two further posts with its own candidates at the end of 2015 without violating the case law of the Constitutional Court. In addition, two judges, including President Rzepliński, would retire by the end of 2016. The PiS would have had a majority of eight to seven judges in 2016 at the latest, even without a violation of the constitution, and could have appointed the court president from the beginning of 2017. But that was no longer the point.