During its last session before breaking for summer vacation, the Polish parliament (first the lower house, the Sejm, and on July 21st the Senate) approved legislation to drastically change the composition and functioning of Poland’s Supreme Court. The ruling Law and Justice party (PiS) had the votes to push the measures through. President Andrzej Duda has three weeks to sign the bill or veto it. Although he has noted some inconsistencies in two articles of the bill, he may still sign the bill into law, pending these issues being resolved.
Courts in Poland follow a complex hierarchy from local to district courts and then to the Supreme Court, and there is a separate Constitutional Tribunal for resolving constitutional questions. This complexity may make it hard to see how the dismantling of the Supreme Court is particularly dangerous for democracy in Poland.
Control of the Supreme Court plays into the PiS agenda
The Friday reforms make some stark moves:
- The Justice Minister will now have discretion over which Supreme Court judges remain in office and who is forced into retirement
- Effectively, this reduces the judges from 87 to 31 (technically, the number is 43, but 12 will sit on a newly created “disciplinary department,” so there will be 31 judges doing the work of 87)
- The qualification for holding a High Court seat was lowered, and now requires a minimum of just 12 years of experience in a regional court.
But here’s the crowning blow in ending judiciary independence in Poland: Since the Minister of Justice already simultaneously holds the position of Prosecutor General, the ruling majority may now choose both the prosecutor AND the judge in every single court case.
These excerpts of the bill alone violate at least two articles of the constitution (181 and 182), but as I describe in a previous Monkey Cage post, PiS already has the Constitutional Tribunal under its thumb, so the measure is unlikely to be struck down.
Here are 5 potential reasons why taking over the Supreme Court is just what PiS leader Jarosław Kaczynski needs to consolidate power — and why the measure was kept under cover until just last Friday.
1) Boosting PiS representation in the Sejm will give the PiS a constitutional majority
The 1997 Polish constitution makes the Supreme Court responsible for determining the validity of all nationwide referenda, as well as elections to the Sejm and Senate. If the results of the next election come under dispute, the Supreme Court would be called to rule on the matter.
But why push the bill through two years in advance of the 2019 scheduled elections? The term “scheduled” elections is key here. PiS has a majority in the Sejm and can dissolve parliament and hold early elections, and stands a chance of winning two-thirds of the seats in the Sejm — this would give the party the super majority required to amend the constitution.
In fact, fall 2017 could be ideal for calling an early election. Trump’s visit to Poland earlier this month significantly bolstered PiS’s support. Recent opinion polls show a 4 percent bump for the ruling party over the previous month, and another 1 percent jump between July 7-20. Of course, PiS could call an early election prior to reforming the Supreme Court, but lacking a tight grip on this sanctioning body, they’d risk repeating Teresa May’s failed gamble earlier this year. Now, the Supreme Court could invalidate elections they lose.
2) Annulling the prison sentence of a close ally
The second reason is more private. In a 2015 case, a regional court sentenced Mariusz Kamiński, a close associate of Kaczynski and former head of the Central Anticorruption Bureau, to three years in prison for abuses of power. In November of 2015, within days of assuming office, the president pardoned him. But the Supreme Court annulled the pardon in March 2017. Barring a reversal, Kaminski will go to prison.
3) Settling accounts with former Prime Minister Donald Tusk
An only slightly less personal reason involves Donald Tusk, Poland’s former prime minister and current Council of Europe president. Kaczyński wants the State Tribunal to put Tusk on trial. This special judiciary body assesses the constitutional liability of persons holding the highest state rank. This process could result in criminal punishment and a loss of civil rights. The chief justice of the Supreme Court serves, ex oficio, as the justice presiding over the state tribunal.
What is Tusk’s alleged crime? Jarosław Kaczyński has accused the opposition of murdering his twin brother Lech, who was Poland’s president at the time, in an April 2010 plane crash.
4) Bringing the lower courts in line with the ruling majority
A fourth possibility involves a peculiarity of the Polish constitution (article 178) that allows lower-level courts to interpret the constitution when the Constitutional Tribunal is incapable of doing so. Article 178 puts PiS’s plans for passing unconstitutional legislation in jeopardy (an example of such legislation is introducing term limits for mayors and governors, which would help PiS win subnational elections in cities —Civic Platform strongholds—and small rural boroughs—strongholds of the Polish Peasant Party). PiS is clearly not in a position replace judges in every single court entitled to rule on the basis of article 178.
Here’s the workaround: If you can’t change the judges themselves, then try to influence their incentives. Since the Supreme Court serves as the court of appeal for lower-level decisions, any judge interpreting the constitution at odds with PiS would risk having the decision reversed. Since frequent reversals undermine judicial careers, few lower-court judges will likely choose this path.
5) Bankrupting the opposition
The last possibility comes straight from the dictator’s handbook. In contrast to the U.S. system, where private donations fund electoral campaigns, Poland has public financing of electoral campaigns and political parties, and reimburses parties for their expenses once their vote share exceeds 3 percent.
Another Supreme Court task is to review reports from parties seeking reimbursement for electoral expenditures. Hence, Supreme Court judges could deny compensation to applicants whose books are deemed “out of order.” If the Supreme Court were to reject accounts from parties in the opposition, this would be a “slow-bleed” strategy to bankrupt the opposition and eliminate electoral competition.
This last incentive is potentially the most dangerous, because it is the one that is hardest to notice. Indeed, democracy dies in darkness.
Monika Nalepa is an associate professor of political science at the University of Chicago. She is grateful for the input and assistance from Paweł Piwowar, vice-president of the Alumni Association at the Law and Administration Department of the University of Warsaw.
Read more here: http://www.washingtonpost.com/blogs/monkey-cage/wp/2017/07/23/the-attack-on-polands-judicial-independence-goes-deeper-than-you-think-here-are-5-things-to-know/ by Monika Nalepa Originally posted on http://www.washingtonpost.com/blogs/monkey-cage