Poland has lurched for years from one crisis to another over the rule of law and judicial independence. Since 2015, when Poland’s new ruling Law and Justice party (PiS) came to power, the government has introduced myriad laws “reforming” the judicial system by making it more vulnerable to political interference and influence. The judicial appointment process and disciplinary procedures were the most affected.
Now, this extended strain is undermining the prospects for a free and fair parliamentary election on Oct. 15 that will determine not only whether the ruling party will retain power but also the country’s democratic trajectory. In Poland, the outcome will either entrench populists in power who will proceed with dismantling the rule of law and other democratic institutions, or it will provide an opportunity for democracy’s restoration. For the European Union, this high-stakes vote in Poland, the next government’s approach to rule of law, and the international community’s responses to these developments will send a strong signal to other at-risk democracies in the region, such as Hungary, Slovakia, Bulgaria and Romania.
In the aftermath of these elections, it will be imperative for the Polish authorities, with the support and advice – tough prodding if need be — of the EU and others in the international community to provide structural guarantees to shore up the foundational principles of judicial independence and the rule of law. And all of this must be done fully in line with international law, European law, and the Polish Constitution.
How Rule of Law Backsliding Began
Poland’s rule of law crises started in 2015 when PiS came to power and began the takeover of the Constitutional Tribunal, adopting many legislative amendments that removed structural guarantees for the independence and impartiality of the country’s judicial and prosecutorial systems. The changes strengthened the power of the executive and legislative branches by allowing them to interfere in the judicial appointment process, punish judges whose legal decisions or personal expressions about rule of law matters did not align with the political narratives of the ruling party, and use prosecutorial services as a tool to suppress government opposition. The government justified this overhaul as necessary to reckon with remaining “communist” judges and to improve the effectiveness of court administration.
Of the many complex and technical changes, Polish legal experts and the international legal community highlight three areas as the most damaging to judicial independence and the rule of law in general.
Appointment Procedures for Judges
In December 2017, the Polish parliament amended the Law on the National Judicial Council (NCJ), a key body in the process of appointing judges. The composition of the NCJ was changed, and judges, who make up 15 of the 25 NCJ members, began to be selected by the lower chamber of parliament (Sejm) instead of the judicial community, as had been the case before. This made the process of appointing judges throughout Poland vulnerable to political interference. The remaining 10 members of the NCJ include representatives from the executive and legislative branch. The system for appointing and promoting judges now is not independent and impartial, nor it is transparent.
This new system is a departure from established international standards, which require that judges be selected based on merit and appointed by their peer group. The United Nations Basic Principles on the Independence of the Judiciary stipulate that ¨any method of judicial selection shall safeguard against judicial appointments for improper motives.¨ Similarly, various European bodies ascertain the same standards that councils for the judiciary be composed of a majority of judges elected by their peers. The EU Court of Justice and the European Court of Human Rights have ruled in several judgments that the politicized composition of the NCJ is a root cause of Poland’s judicial independence problem.
Also in 2017, the disciplinary system for judges was changed. A new Disciplinary Chamber was added to the Supreme Court to review disciplinary cases against judges. This modified system began to be employed against judges who criticized the government’s changes in the judiciary. The disciplinary procedures were arbitrary and the charges were based on judges’ legal reasoning rather than violations of professional ethics. This new system was meant to exercise a chilling effect and intimidate judges in Poland. Dozens of judges have been harassed through disciplinary procedures and deprived of clear procedural norms and the right to defense, including the judge among these authors, whose another disciplinary hearing took place just this week.. The EU Court of Justice ruled that the disciplinary system created to harass judges is illegal under EU law.
The Polish government rolled back some of the introduced changes in mid-2022 after facing pressure from the EU, which had imposed penalties that affected the disbursement of billions of euros from a special EU fund aimed at bolstering the economy after the Covid-19 pandemic and, later, the economic effects of Russia’s invasion of Ukraine. The Disciplinary Chamber in the Supreme Court was dissolved and replaced with the Chamber of Professional Responsibility. But the composition of the latter still did not fully comply with EU law. Polish President Andrzej Duda requested the Constitutional Tribunal to verify its constitutionality, but since it does not have a quorum to make decisions because some of the Tribunal’s judges dispute the legality of the President of the Constitutional Tribunal’s mandate, the law is still pending its review.
The Constitutional Tribunal is a judicial body responsible for reviewing the constitutionality of laws. In 2021, the European Court of Human Rights ruled that the Constitutional Tribunal cannot be considered an independent and impartial body because some of its members were appointed by the Parliament against procedural rules. The Constitutional Tribunal has also been criticized for its unconstitutional rulings and its consistent undermining of Poland’s international obligations on the independence of judiciary. In 2021, the Constitutional Tribunal rejected the jurisdiction of the EU Court of Justice and its case law on judicial independence, finding that the interpretation of EU law advanced by the EU Court is unconstitutional. In response, the European Commission, the EU’s executive branch, lodged a case against Poland with the EU Court of Justice regarding the Constitutional Tribunal. The case is pending.
Why Rule of Law Matters in Elections
Electoral Dispute Resolution
The Chamber of Extraordinary Control and Public Affairs, added to the Supreme Court under the PiS government, is tasked with electoral disputes, validating elections and referendum results, and verifying the legality of political parties’ funding. It also considers appeals against the decisions of the National Electoral Commission on these issues. Judges were appointed to this chamber through a procedure that involved the politicized NCJ and cannot be considered independent and impartial under EU law and the European Convention on Human Rights.
Moreover, in the last few years, experienced judges who had headed local electoral commissions in Poland have been replaced with judges appointed or promoted in the procedure that involved the politicized NCJ.
Media, a key infrastructure of democracy, significantly contributes to the existence of a level-playing field in elections. The PiS government politicized media regulators and state media, seizing control of multiple television and radio channels and online portals. State media are legally obliged to be impartial. However, for years they have been promoting PiS politicians and smearing the opposition. These factors prompted international election monitors to conclude that the 2019 general elections and the 2020 presidential elections were not fair. Conditions have only deteriorated in the current campaign.
The government has been pressuring independent media outlets for several years now through political and regulatory measures. The government also has simultaneously erected obstacles against private media that are critical of its policies, while generously supporting friendly, pro-government outlets with taxpayer money.
The government targets independent outlets, including private media companies, that run content that is objective or critical of the ruling party. For example, such pressures were evident in the case of the country’s biggest independent media outlet, the privately-owned TV group TVN24 (owned by Warner Bros. Discovery) and TOK FM, the largest independent news radio station in Poland, and popular radio station Radio Zet.
The governing majority also has pressured independent broadcasters by proxy using a media regulator, the National Broadcasting Council. This council has threatened broadcasters with not renewing licenses and imposing excessive fines for reporting. For example, TOK FM’s license is set to expire next month and TVN24’s license will expire in April 2024. These impending expiration dates leave them vulnerable to government influence.
Moreover, the governing majority passed a bill limiting media ownership from outside of the European Economic Area (EU member States plus Iceland, Liechtenstein, and Norway), which the president ultimately vetoed. The bill targeted TVN media group. State bodies and the governing party have been using abusive litigation against private outlets and outspoken individuals with the aim of intimidating them and others and general creating a broader chilling effect on the public debate.
Security, NATO, and the US Relationship
Another crucial area where rule of law concerns have an impact on the long-term democratic prospects for Poland and the region is security and stability. The dismantling of the rule of law in Poland is deeply disheartening, especially considering the decades of bipartisan American support for Polish democracy. What makes this situation even more concerning is that it undermines the long-term national interests of both Poland and the United States, and it erodes the very foundation of a partnership that countless people on both sides of the Atlantic have worked hard to build and protect.
At first glance, many assume that concerns about values and the rule of law must be balanced against harder security interests, as if they are points at opposite ends of a seesaw, bound to always be at odds with one another. Yet, in practice, they overlap. When rule of law is weakened, parochial political interests come to supersede national interests, and short-term political benefits hold sway over longer-term strategic interests. For Poland and the United States, the bedrock of the relationship is based on a shared understanding of the value of democracy and a common threat perception that motivates both parties to be active and leading participants in the NATO alliance. These are enduring interests, and a change in either of these factors would radically reshape U.S.-Polish ties. Democratic backsliding and harm to the rule of law threaten both pillars of this enduring relationship.
The deterioration of the rule of law is inherently harmful to liberalism and democracy. It negatively affects how Polish citizens can participate in democracy and creates fissures, as we have seen in other countries, where outside disinformation, corrosive capital, and corruption can penetrate. The rule of law is an integral part of the immune system of Polish society that rebuts such attacks.
Further, because those who seek to limit or roll back the rule of law prioritize their political or economic interests over the national interest, stable and dependable foreign relationships become harder and harder to manage or meaningfully sustain. The more policymakers in Washington, D.C. have shifted from asking “what are Poland’s interests” to “what are the interests of any given leader or political party,” those answers inevitably become less clear, less predictable, and more contingent on the wishes of a few. The result makes external relations, such as those within NATO, more and more difficult.
Undermining Free and Fair Elections
This rule of law crisis weakens the odds of a free and fair election in several ways. First, the system of appointing judges to the Extraordinary Chamber — a mechanism added to the Supreme Court in 2018 and tasked with reviewing electoral matters, such as electoral challenges, election validity, and any national referenda — is politicized. European courts have ruled that this chamber is not independent under European human rights law.
Second, the current environment for independent broadcasting and other media warps what should be a level playing field for candidates in any election aiming for the “free and fair” stamp of approval. The government’s control and influence over the media have raised significant concerns about the fairness of elections. The Law and Justice party has politicized media regulators and state-owned media outlets. These outlets are legally required to be impartial, yet they have consistently promoted the ruling party’s agenda. The government also has been pressuring independent media through political and regulatory means, while supporting pro-government outlets.
A weakening of the rule of law also plays out in the security and stability of the region, especially after Russia’s illegal full-scale invasion of Ukraine in February 2022. Backsliding on democratic standards and protracted disputes with the EU and its neighbors are detrimental to the readiness and cohesion of NATO allies, both of which are needed to fulfill commitments under Article 5 of the North Atlantic Treaty, which states that an attack on one member of the alliance is an attack on all. A problematic rule of law situation amongst members of the alliance can weaken the ability to support a unified line to resist and combat Russia. High profile examples of this include how the Hungarian government blocked meetings of the Ukraine-NATO Commission for years and the ongoing blockage of Sweden’s accession into NATO. This is indicative of non-security, partisan political interests overstepping into the NATO alliance. A less well-known example includes the 2018 case of Vladimir Lyubishin Sr. and Vladimir Lyubishin Jr., two Russian arms traffickers whose extradition the United States sought, but which was denied by the Orban government. The two were returned to Russia in a suspect arrangement that the United States said “raises questions about Hungary’s commitment to law enforcement.”
The International Response
International and regional responses to rein in this democratic backsliding are ongoing, though they remain weak. The European Commission, the 27-member European Union’s executive branch, has been in constant negotiations with the Polish government for years over what the bloc sees, rightly, as an abrogation of the rule of law. In 2017, the EU launched a “political dialogue” procedure for the first time in its history under Article 7 of its founding treaty, threatening to suspend Poland’s voting rights in the EU Council, an EU body that negotiates and adopts EU laws.
The Commission also has started several legal procedures against Poland, taking it to the EU Court of Justice. More recently, the EU withheld post-Covid recovery funds that are conditioned upon Poland’s rule of law performance and threatened that it will not disburse further funds from the EU budget if Poland does not respect the EU Charter of Fundamental Rights. Further, the European Court of Justice (the EU’s highest court) and the European Court of Human Rights adjudicated numerous cases against Poland brought by the European Commission as well as individual plaintiffs including judges, business owners, and citizens, and issued judgments requiring Poland to comply with European laws and values.
However, because of the Polish government’s lack of political will, as well as the EU’s ineffective and weak internal mechanisms for holding its members accountable for violating core EU agreements and values, Poland, under the PiS government, continues to battle with the EU and resists honestly, properly, and fully addressing rule of law issues.
The United States, for its part, has taken a largely hands-off approach, choosing mostly to let the EU take on the task of holding Poland to account on democratic backsliding. The Biden administration is very cautious to respond on this issue, e.g. this week’s statement at the OSCE Warsaw Human Dimension Conference was one of the first times where a U.S. government representative addressed Poland publicly to do better on rule of law. It has been that much more reluctant to raise the issue with Poland since Russia’s February 2022 invasion of Ukraine, because Poland has become a linchpin in aiding Ukraine’s defense and in the humanitarian response. This slow approach had been a mistake – the apparent U.S. government thinking that Poland might cease cooperation with Ukraine if the U.S. presses too hard on its rule of law and democracy issues is misguided.
No matter which party controls Poland’s government going forward, they must return to a full respect for the rule of law and stop the quasi-compliance that has been used as a pretense to satisfy EU demands. And the EU and the rest of the international community must hold this ally and partner to account. Failure to immediately address the erosion of rule of law and judicial independence not only throws a shadow over the current elections, it undermines the long-term political, economic, and social prosperity and the security of Poland and the entire region.