Aleks Szczerbiak is Professor of Politics and Contemporary European Studies at the University of Sussex. He is author of Poland Within the European Union? New Awkward Partner or New Heart of Europe?(Routledge, 2012) and ‘Politicising the Communist Past: The Politics of Truth Revelation in Post-Communist Poland‘ (Routledge 2018). He blogs regularly about developments on the Polish political scene at http://polishpoliticsblog.wordpress.com/
Cross-posted from Aleks Szczerbiak`s blog
Last month, the government – which, since autumn 2015, has been led by the right-wing Law and Justice (PiS) party – rushed through amendments reversing its earlier law lowering the retirement age for supreme court judges from 70 to 65. The original law required two dozen judges, including the court’s first president Małgorzata Gersdorf, to take early retirement before their terms of office expired, except for those re-instated by party-backed President Andrzej Duda. The amendments were a response to the European Court of Justice’s October preliminary injunction which called for the contested reforms to be suspended and the retired judges to be re-instated pending a final ruling. The injunction came after the European Commission launched a legal action against Poland, arguing that the early retirement provisions violated EU law. Law and Justice officials had earlier given conflicting signals as to whether they would abide by it.
The government’s concessions were the most significant to date in its protracted stand-off with the Commission which has been ongoing since January 2016. Initially, the dispute was over the membership and functioning of Poland’s constitutional tribunal but last year escalated to include Law and Justice’s fiercely contested judicial reform programme. In addition to the Court of Justice case, the Commission has also taken the unprecedented step of initiating an action against Poland under Article 7 of the European treaties which it can invoke against any EU member state where it feels there is a ‘systemic threat’ to democracy and the rule; threatening Warsaw with sanctions including the suspension of its European Council voting rights. In doing so, it agreed with criticisms levelled by Poland’s legal establishment and most opposition parties – led by the liberal-centrist Civic Platform (PO), the country’s governing party between 2007-15 – that the reforms undermined judicial independence and threatened the key democratic principle of separation of powers. The government’s opponents argued that by putting appointments under political control these reforms allowed the ruling party to pack the courts and judicial supervisory bodies with its own, hand-picked nominees.
The government’s supporters, on the other hand, argued that the reforms were needed because Polish courts were deeply inefficient and tolerated frequent irregularities. Law and Justice believes that, following the country’s flawed transition to democracy in 1989, the judiciary, like many key Polish institutions, was expropriated by an extremely well-entrenched, and often deeply corrupt, post-communist elite, which then co-opted a new legal establishment that perpetuated its legacy. It accused the Commission of bias and double standards, arguing that the reforms were in line with practices that existed in other established Western democracies. The Commission was, they argued, motivated by the fact that Warsaw has been robust in promoting Polish interests and values, and opposing the socially liberal and multi-cultural policies supported by the EU political establishment, such as the Union’s compulsory migrant relocation scheme.
The Court judgement changes the political calculation
Up until now Law and Justice was prepared to face down the Commission, calculating that, even if many Poles had misgivings about its specific reforms, they strongly supported overhauling the judiciary and were wary about EU institutions becoming involved in the country’s domestic affairs. However, the European Court’s ruling changed this political calculation. Under the Article 7 procedure the pressure on Poland is solely political because sanctions require unanimity in the Council of Ministers and several member states, notably Hungary, have indicated that they will vote against. The Court, on the other hand, can impose heavy financial penalties on countries that do not comply with its rulings, which would unsettle the many Poles whose support for their country’s EU membership is driven increasingly by the tangible material benefits that it is felt to offer.
Non-compliance with the European Court’s ruling would also involve an open breach of the EU’s rules allowing the opposition to associate Law and Justice with so-called ‘Polexit’, Polish withdrawal from the Union. How the EU issue plays out in Polish public opinion depends critically on how it is framed. If it is a question of Law and Justice vigorously asserting Poland’s interests – particularly on an issue such as enforced migration quotas, where the vast majority of Poles are hostile to EU policy – then it plays well for the ruling party. However, if the issue is framed in terms of whether the government’s actions threaten the material benefits that Poland receives from the EU, or the country’s membership, then it becomes extremely problematic for the ruling party. However instrumental they may have become in their attitudes towards the Union or misgivings they may have about specific EU policies, Poles continue to support membership overwhelmingly. For example, an October survey by the IBRiS agency for the ‘Rzeczpospolita’ newspaper found 84% of respondents (including 76% of Law and Justice voters) would vote for Poland to remain in the EU against only 8% who would vote to leave. With the salience of the European migration crisis having receded, the Polexit narrative appears to have become increasingly important as the way that many Poles frame the EU issue.
A referendum on Polexit?
The recent October/November local elections illustrated what a toxic slogan Polexit is for any mainstream politician to be associated with. Although Law and Justice won the highest share of the vote in elections to Poland’s 16 regional authorities, the best indicator of national party support, it performed poorly in medium-sized and larger towns, partly as a result of a much higher than usual turnout among the government’s opponents in these areas. Many commentators attributed this, at least in part, to the liberal-centrist opposition’s claim that Law and Justice was contemplating leaving the EU. A few days before the elections it emerged that justice minister Zbigniew Ziobro had asked the constitutional tribunal whether Polish judges had the right to refer queries on EU law to the Court of Justice. The opposition interpreted this as a pretext for Poland to ignore the Court’s verdict if the constitutional tribunal questioned the primacy of EU law in Polish affairs, arguing that undermining the EU treaties in this way could be a precursor to Polexit. Drawing analogies between the situation that led the UK to leave the EU, opposition leaders warned that frequent clashes between Warsaw and the EU political establishment could accidentally trigger a slow motion Polexit in the same way that Britain stumbled out of the EU. The debate was further ignited when the Court issued its preliminary injunction on the final day of election campaigning.
The local elections were the first of a series over the next 18 months with the European Parliament (EP) poll in May 2019, parliamentary election in the autumn, culminating in the summer 2020 presidential poll. EP elections are particularly difficult for Law and Justice. Its electorate is divided over EU issues and includes a substantial number of Eurosceptics, which makes it hard for the ruling party to develop a distinctive message. Turnout is very low (only 24% last time) but higher among better-off, urban voters who tend to support the liberal-centrist opposition, whose strategy will be to try and turn the EP elections into a de facto referendum on continued Polish EU membership. A good result would provide the opposition with a psychological boost and momentum in the run-up to the crucial autumn parliamentary poll. Law and Justice strategists were concerned that a European Court final ruling against the Polish government falling in the middle of the EP campaign would have provided further traction for the opposition’s Polexit narrative.
Neutralising the issue, leaving the core reforms intact
The government’s retreat over its supreme court reforms was, therefore, part of a concerted effort to defuse the Polexit issue. In recent weeks Law and Justice leaders have gone overboard to stress that the party is strongly committed to continued EU membership as a core element of Polish foreign policy. For sure, Law and Justice is Eurosceptic in the sense of being anti-federalist and wary of further extensions of EU competencies, but the dominant view within the party remains that it is in Poland’s interests to try to reform the Union from within. Indeed, party leaders argue out that the only leading politician to call for a referendum on this specific issue in recent years was actually the pro-EU Civic Platform leader Grzegorz Schetyna! A hopeful sign for Law and Justice was a November poll for the CBOS agency that found that only 16% of respondents felt Law and Justice wanted Polexit while 12% said the party actually favoured deeper EU integration.
At the same time, however, many Law and Justice supporters feel that the government has been too accommodating on this issue. The November CBOS survey also found that although, by a margin of 53% to 31%, Poles supported the government making concessions to EU institutions on its reforms, Law and Justice voters were opposed by 57% to 35%. The party has, therefore, tried to re-assure them that this was a price worth paying to neutralise the opposition’s Polexit narrative while retaining the core elements of the judicial reform programme. The majority of the National Judicial Council (KRS), the body that appoints judges and determines the functioning of the courts, is now selected by parliament (by a qualified three-fifths supermajority) rather than the legal profession. The justice minister retains broad powers to appoint and replace the heads of ordinary courts. Although for many Law and Justice supporters Mrs Gersdorf personifies the despised judicial establishment, her position is not critical to the reforms, while nearly 40 new supreme court judges (out of 110) have been appointed by the President, there are still 10 vacancies to fill, and the re-instated ones will gradually retire and be replaced. There are also two powerful new supreme court chambers dominated by new appointees: one dealing with disciplinary issues relating to the legal profession; the other overseeing a new ‘extraordinary appeals’ procedure that allows for the review of ‘wrongly passed’ court judgements from the past 20 years.
As a consequence, although the government is hoping that the judicial reforms will become less salient in framing public perceptions of Poland-EU relations, the issue is not going to disappear. While the Commission welcomed the re-instatement of the retired judges, it also indicated that it would not withdraw its Court of Justice referral, to prevent Warsaw from returning to the issue, and would continue with the Article 7 procedure over other contested issues. It also has an earlier European Court referral relating to the functioning of the ordinary courts (although not subject to the emergency mechanism). Indeed, the fact that the Court has proved to be more willing to intervene in the functioning of national judicial systems than many commentators anticipated has encouraged the government’s opponents to urge the referral of other disputed measures, particularly the National Judicial Council changes which are the real core of the reforms.
Focusing too much on Polexit?
How the Polexit issue plays out over the coming months could have a crucial impact on next year’s elections. It is a potentially extremely powerful weapon for the government’s opponents and, if the conflict between Warsaw and Brussels escalates and the elections become framed as referendums on continued Polish EU membership, Law and Justice could be in trouble. On the other hand, if the government’s opponents focus too much on the Polexit issue – and the ruling party develops a convincing counter-narrative that it is strongly pro-EU, and its conflict with the EU political establishment subsides – then the opposition could appear to have little else to offer Poles as a positive reason to support it.