Written By Reganne Hardy

A Shot in the Democratic Backsliding Dark: Poland’s Road to Judicial Independence Recovery

For the past eight years, the Law and Justice Party (Prawo i Sprawiedliwosc, PiS for short) dominated Poland’s elections. PiS is characterized by its intense right-wing, nationalist rule and promise to undo Western liberal influence through media and judiciary control.[i] Specifically, PiS vowed to implement Catholic values during its control and delivered on its promise. Poland enacted harsher abortion laws, promoted anti-immigration sentiments, and fanned homophobia during PiS’s regime.[ii] PiS-led Poland compromised the rule of law, a pinnacle prong of democracy, when PiS penalized judges who failed to oblige with its agenda and forced judges into retirement.[iii]

Poland’s democratic erosion captured the EU’s attention because upholding the rule of law is a core responsibility of EU member states. In 2021, the Court of Justice for the European Union fined Poland 1 million euros daily for failure to cease its disciplinary program for judges who applied EU law and rejected PiS policy.[iv] Following suit, the European Commission retained Poland’s 35 million COVID-19 pandemic recovery payout until Poland remediated its judicial system and righted wrongly dismissed judges.[v] Poland’s rising debt amidst increasing inflation ignited tensions on the ballot results.[vi]

Poland’s rule of law and judicial independence crisis turned on its head during the October 16th parliamentary elections.[vii] The voter turnout on October 16th was the highest in the country’s democratic history and surpassed the critical vote that terminated communism.[viii] Despite PiS’s majority, the democratic opposition to PiS composed of three groups prevailed and secured the majority of seats in Poland’s bicameral legislature.[ix]

By the eve of October 16th, Parliament endorsed former European Council and Prime Minister Donald Tusk of the Civic Coalition (Koalicja Obywatelska, KO for short) to lead Poland.[x] The peaceful transition of power long attributed to democratic nations, recently threatened in Brazil and the United States, remains pressurized in Poland.[xi] Poland President Andrzej Duda, a known ally of PiS, delayed the transition of power within Parliament.[xii]

In addition to legislative changes, Article 10 of the Polish Constitution mandates that the Republic of Poland maintain the separation of powers between its branches of government.[xiii] Because removing judges who fail to comply with PiS’s policy violated the separation of powers and judicial independence, Poland must reverse the PiS government’s interference with judicial independence. Poland must depoliticize the judiciary to access the EU’s Article 7 sequestered funds and comply with the Polish Constitution.[xiv]

Poland’s media platforms remain a battleground between PiS and the new KO government. President Duda recently rejected a 762 million investment into Poland’s state media, instead advocating reallocating funding to children’s healthcare.[xv] President Duda remarked that dismantling PiS’s grip on media would be a lengthy process.[xvi] PiS-led Poland utilized media giants to spread propaganda and misinformation during its reign, and Prime Minister Tusk has vowed to undo the politicization of the press. While Prime Minister Tusk has made progress in removing press leadership and canceling biased news programs, aspirations of change to Poland’s media and Poland at large remain subjected to President Duda’s veto powers.[xvii]

Ramifications from the PiS party’s reign transcend Poland’s border and reach its allies and neighbors. Foremost, PiS disparaged Germany during its tenure and requested a hefty 1.3 trillion World War II reparations package to remediate destruction during Nazi Germany’s occupation of Poland.[xviii] Poland’s recommitment to the EU and democracy appears promising to strengthen strained relationships in the NATO alliance due to the attacks in Ukraine and Gaza.[xix]  With consideration to Ukraine, PiS prioritized defense spending and admitted Ukrainian refugees to pursue the Konfederacja party’s support, a far-right Polish party that capitalized on the polarization between PiS and the civic opposition.[xx] PiS later suspended support to Ukraine in an attempt to thwart Konfederacia endorsement in the October 16th election.[xxi]

PiS’s diplomatic relations, with reference to Ukrainian support, are disingenuous and foster instability in international relations.[xxii] Poland will need to anchor itself to stabilize its diplomatic policy and leverage its position to guide EU policy amidst increasing Russian aggression.[xxiii] Hungary, like Poland, experienced a judicial independence crisis; however, Hungary has only addressed some of the EU’s humanitarian and rule of law concerns.[xxiv] Poland’s restorative path to upholding the rule of law and judicial independence is a beacon to states like Hungary, demonstrating that democracy can prevail over authoritarianism.[xxv]

Under Tusk’s leadership, Poland has its greatest opportunity to curtail democratic backsliding before it creates irreversible damage in internal and external affairs. Poland must undo PiS’s actions on the judiciary, including its forced retirement and disciplinary system for judges who failed to comply with its objectives. Poland must reverse PiS’s invasion of the rule of law and judicial independence to unlock withheld EU pandemic funding, which Poland desperately needs amidst high inflation and growing debt.

A Tusk-led Poland must depoliticize the media and the judiciary as PiS weaponized the media to spread misinformation; however, President Duda’s veto abilities threaten the opposition’s progress. Tusk has also promised to repudiate PiS’ infringement on LGTBQ+, abortion, and same-sex couples’ rights, and President Duda remains a threat to Tusk’s progressive policy.

On the global stage, Poland’s commitment to EU policies will stabilize and strengthen relationships abroad. Namely, Poland under Tusk can reverse its impaired relationship with Germany and shape EU policy, considering its experience with Russia. While Poland has its work cut out for it, the tremendous turnout of civil society is an example for Poland and the globe. To quote Prime Minister Tusk, “We won democracy, we won freedom, we won our beloved Poland again.”[xxvi]


Works Cited

[i] Jon Henley, Polish Elections: Who are the Key Players and What Is at Stake?, The Guardian (Oct. 6, 2023, 12:00 AM), https://www.theguardian.com/world/2023/oct/06/poland-elections-explainer-law-and-justice-party-civic-platform.

[ii] Id.

[iii] Michael Hoffmann, [PiS]sing off the Courts: The PiSParty’s Effect on Judicial Independence in Poland, 51 Vand. L. Rev. 1153, 1162 (2021).

[iv] Jan Cienski, It’s All or Nothing for Poland’s Ruling PiS Party This Year, Politico (Jan. 5, 2023, 4:02 AM), https://www.politico.eu/article/its-all-or-nothing-for-polands-pis-this-year-kaczynski-morawiecki-rule-of-law/.

[v] Id.

[vi] Id. (expanding Poland’s rising debt crisis with one of the highest rates of inflation in the EU at 17.5 percent).

[vii] Press Release, OSCEPA, Poland’s Parliamentary Elections Were Competitive but Marked By Misuse of Public Resources and Public Media Bias, International Observers Say (Oct. 16, 2023), https://www.oscepa.org/en/news-a-media/press-releases/press-2023/poland-s-parliamentary-elections-were-competitive-but-marked-by-misuse-of-public-resources-and-public-media-bias-international-observers-say.

[viii] Poland’s Pro-EU Opposition Poised for Victory Over Ruling Nationalist PiS Party, France24 (Oct. 16, 2023, 9:34 PM), https://www.france24.com/en/europe/20231016-poland-s-pro-eu-opposition-poised-for-victory-over-ruling-nationalist-pis-party.

[ix] Pawel Zerka, Message in a Ballot: What Poland’s Election Means for Europe, Council on Foreign Relations (Oct. 18, 2023), https://ecfr.eu/article/message-in-a-ballot-what-polands-election-means-for-europe/

[x] Andrew Higgins, Who Is Donald Tusk, the Man Who Retook Power From Poland’s Right-Wing Leaders?, New York Times (Dec. 12, 2023), https://www.nytimes.com/2023/12/12/world/europe/donald-tusk-poland-prime-minister.html.

[xi] PBS News Hour, Poland’s President Defies New Government in Battle Over Control of State Media, PBS (Dec. 27, 2023, 3:58 PM), https://www.pbs.org/newshour/world/polands-president-defies-new-government-in-battle-over-control-of-state-media; Anthony Faiola & Annabelle Chapman, Poland Election Results Favor the Opposition in a Political Earthquake, Wash. Post (Oct. 17, 2023, 3:15 AM), https://www.washingtonpost.com/world/2023/10/16/poland-elections-2023-donald-tusk/.

[xii] Monika Scislowska & Vanessa Gera, Poland’s New Parliament Choses a Speaker, but the Transition of Power is Delayed by President, PBS (Nov. 13, 2023, 5:08 PM), https://www.pbs.org/newshour/world/polands-new-parliament-choses-a-speaker-but-the-transition-of-power-is-delayed-by-president.

[xiii] Tekst Konstytucji Rzeczypospolitej Polskiej ogłoszono w Dz.U. 1997, NR 78 poz. 483, Art. 10, Rozdział VII (Pol.).

[xiv] Article 2 of the Polish Constitution requires the democratic state to abide by the rule of law and social justice. Art. 2, Rozdział VII, Konstytucja Rzeczypospolitej Polskiej.

[xv] PBS News Hour, supra note XI.

[xvi] Id.

[xvii] Bartosz Brzeziński, Poland’s Media Revolution Turns into a Media Battle, Politico (Dec. 27, 2023, 4:00 AM), https://www.politico.eu/article/poland-media-revolution-pis-law-and-justice-tusk-duda/; Wash. Post, Poland Rises Against Authoritarianism, Reshaping the European Picture (Oct. 19, 2023, 2:41 PM), https://www.washingtonpost.com/opinions/2023/10/19/poland-voters-election-democracy-eu/ (“To override a veto, [P]arliament needs a three-fifths majority, which the new coalition will not have.”).

[xviii] Aleksandra Krzysztoszek & Oliver Noyan, PiS’ Anti-German Rhetoric in Polish Election Bothers Berlin, Euractiv (Oct. 6, 2023), https://www.euractiv.com/section/politics/news/pis-anti-german-rhetoric-in-polish-election-bothers-berlin/ (describing PiS’ claims that Germany opposed the PiS government and attempted to shape Polish election results); Reuters, Polish Ruling Party Makes Germany the Villain in Campaign Ad (Sept. 11, 2023, 7:25 AM), https://www.reuters.com/world/europe/polish-ruling-party-makes-germany-villain-campaign-ad-2023-09-11/ (outlining PiS’ efforts to portray former Polish Prime Minister and European Council President Donald Tusk as a German puppet); Jamie Dettmer, Poland’s Ruling Party Hopes Call For German War Reparations Can Swing Election, Politico (Sept. 18, 2023, 4:01 AM), https://www.politico.eu/article/polands-ruling-party-hopes-call-for-german-war-reparations-can-swing-election/#:~:text=PiS%20leaders%20are%20desperate%20to,caused%20by%20the%20Nazi%20occupation (detailing Germany’s Foreign Minister’s response to Poland’s reparation request by admitting accountability for destruction during World War II but declaring the reparations issue closed).

[xix] Vivian Salama & Daniel Michaels, First Ukraine, Now Gaza: Wars Put Fresh Strain on NATO, Wall Street J. (Nov. 29, 2023, 8:04 AM), https://www.wsj.com/world/europe/first-ukraine-now-gaza-wars-put-fresh-strain-on-nato-31473c94; Robert Benson, Poland’s Democratic Resurgence: From Backsliding to Beacon, American Progress (Nov. 14, 2023), https://www.americanprogress.org/article/polands-democratic-resurgence-from-backsliding-to-beacon/.

[xx] Benson, supra note XIX; Mikołaj Bronert, Don’t Take Poland’s Role For Granted: A Far-Right Government May Not Support Ukraine, GMF (May 9, 2023), https://www.gmfus.org/news/dont-take-polands-role-granted-far-right-government-may-not-support-ukraine.

[xxi] Benson, supra note XIX; Shaun Walker, Poland’s Ruling Party Pivots Away From Ukraine in Attempt to Shore Up Votes, The Guardian (Sept. 21, 2023, 9:27 AM), https://www.theguardian.com/world/2023/sep/21/poland-ruling-party-pivots-away-from-ukraine-pis.

[xxii] Benson, supra note XIX.

[xxiii] Id.

[xxiv] European Commission Press Release IP/23/6465, Hungary’s Judicial Reform Addressed Deficiencies in Judicial Independence, But Maintains Measures on Budget Conditionality (Dec. 13, 2023) https://ec.europa.eu/commission/presscorner/detail/en/ip_23_6465; Nicolas Camut & Barbara Moens, Hungary’s Rule of Law Disputes with Brussels Explained, Politico (Dec. 11, 2023, 2:19 PM), https://www.politico.eu/article/hungary-rule-of-law-eu-summit-viktor-orban-brussels/.

[xxv] Benson, supra note XIX.

[xxvi] Tadeusz Koczanowicz, The Fight for Democracy in Poland Has Just Begun, Lawfare (Nov. 8, 2023, 8:00 AM), https://www.lawfaremedia.org/article/the-fight-for-democracy-in-poland-has-just-begun.

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