Poland's President Is No Friend of the Opposition
It looks to the whole world, and even to the battered Polish opposition, as though President Andrzej Duda took the country a step back from the brink of catastrophe by vetoing bills that would have put Polish courts under the governing party's control. I may be cynical, but it looks like a Russian-style bait-and-switch operation by the Law and Justice (PiS) party to me.
On Monday, both PiS leaders and its opponents, including former Polish President Lech Walesa, showed surprise at Duda's short speech in which he announced the veto. After all, Duda was backed by the PiS when he won the presidency in 2015, and he's largely followed the party line since. Prime Minister Beata Szydlo complained that the president's move slowed down a necessary judicial reform but vowed that the parliamentary majority would not back down.
Gleeful expectations of a rift in the ruling party, or a conflict between the populist PiS leader Jaroslaw Kaczynski and Duda, are probably wishful thinking. The centrist opposition, which has mobilized tens of thousands of supporters for big rallies in recent weeks, would surely like to see such upheaval -- yet Duda is more likely doing PiS a favor. The optics in the current legislative changes are bad; Duda's changes won't dramatically alter the substance but will at least land PiS on safer ground.
The political crisis concerns three bills recently passed by the parliament. One stripped the judicial community of control over the National Council of the Judiciary, which selects judges to be appointed. Another abruptly ended the tenure of current Supreme Court members and gave the justice minister the right to determine which of them would keep their jobs. A third one vested in the justice minister expanded powers to select and dismiss the heads of lower-tier courts.
Duda warned last week that he wouldn't sign the first two bills without a few amendments. But these wouldn't change the reform's goal -- to put the judiciary, which the party argues has turned into an elitist caste, under more political control.
The PiS wants the National Council of the Judiciary to have two chambers, one consisting of politicians and the other of judges. Duda would like the judges appointed by a three-fifths parliamentary majority -- a seemingly progressive move because it would require members of more than one party to approve the candidacies. In reality, however, it would change little: First, the political chamber would be able to overrule any recommendations by the judicial one, and second, the supermajority requirement would often lead to stalemate. That's where Duda's second proposal came in: He wanted the president to have the power to appoint a judge should the National Council of the Judiciary fail to object within 14 days.
These were not, as Warsaw University law professor Marcis Matczak pointed out in a blog post last week, substantive objections to a political takeover of the courts. Rather, from a political point of view, Duda's proposed amendments served to make the matter murkier by creating the impression that the political control wouldn't be limited to the ruling party -- something that would give pause to the European Union's vehement opposition to the proposed changes and throw a bone to domestic opponents.
There was nothing in Duda's speech on Monday that suggested a change of mind. Duda said the reforms need only be "fine-tuned with the constitution in order to preserve the independence of the judiciary." It's likely that the new versions of the reforms will contain the amendments Duda previously proposed, and perhaps a few others to create the impression of a compromise.
This looks like a tactic the Kremlin has often used with Russians: present preposterous versions of laws that severely limit civil liberties and then slightly soften the bills after people protest on the social networks and rallies are held so the public feels heard. That has been the order of events on numerous bills, including ones banning "gay propaganda," criminalizing social network posts and giving the Moscow city government the right to demolish residential buildings more or less at will. The majority simply get used to the idea of more repression as the discussion and amendment process went on.
PiS-led Poland is not Vladimir Putin's Russia yet, and the PiS leadership, not some dispensable legislator, put its weight behind the full-throated judicial reforms, suggesting it meant what it said from the start and was not simply an opening gambit. But the climbdown may still be less than meets the eye. Duda did sign the third law from the judicial reform package, the one which gives the justice minister -- who, in the current government, is also the prosecutor general -- more influence over the heads of low-level courts. Where the government controls the low-level courts, it controls much of the system. Litigating all the way to the Supreme Court is not for everyone.
Duda's veto defused the immediate danger of escalation with the European Union, whose leaders were planning to discuss the Polish bills on Wednesday, potentially as a prelude to starting procedures against the country for trampling the rule of law. It also wrong-footed the opposition and gave demonstrators something to celebrate. After this anticlimax, opposition to the amended bills, which likely will be written in a more confusing fashion, may well be less spirited.
As I wrote recently, in a post-Communist country with a rich tradition of corruption, a total lack of judicial accountability is dangerous; some reform now makes sense. What centrist parties must demand today is that the political control be more evenly spread between the ruling party and the opposition. Perhaps vesting more power in the president could be the answer -- not because Duda is suddenly less of a populist, but because it would make the presidency a stronger counterbalance to the parliamentary majority, which, as PiS has shown, can sometimes push too hard for a divided country's peace and comfort.
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Therese Raphael at firstname.lastname@example.org