The Polish Revolution: 2015-2017

Like other revolutions, the Polish Revolution could also be characterized by violence and striving for freedom. Yet, in this revolution, violence takes the form of gross violations of the Constitution, while the content of freedom is not rights, but popular sovereignty rising above the supreme law.

In effect, the state of lawlessness as a beginning of a new regime based on the concentration rather than separation of powers is created by means of ordinary legislation. The PIS revolution-by-law marks a new transition of Poland–from democracy to disguised authoritarianism, with one leader and one party rule. In this regime, democratic opposition and the voice of other stakeholders are present but either silenced[1] or totally ignored.[2]

The ruling majority, acting in collusion with the President of the Republic and the PIS-dominated Constitutional Tribunal, has conspired in its recent legislative proposals to effectively remove the remaining guarantees of judicial independence. The first bill regarding the system of ordinary courts grants the Minister of Justice the exclusive power to appoint presidents and vice-presidents of all courts and introduces vague criteria for their removal. Furthermore, it contains temporary provisions in pursuance of which the Minister of Justice may terminate the office of any or all current presidents without any reason in the first six months after the law comes into force. Moreover, the bill mandates so-called “review” of all executive functions within courts, permitting the newly appointed presidents to remove the presidents of various court departments and sections. It is clear that the officially declared goal of improving effectiveness of the judiciary covers a less subtle objective to control the executive offices in ordinary courts and indirectly have influence on the administration of justice.

The second act is the bill on the Supreme Court. It introduces compulsory retirement of all current judges of the Court, except judges indicated by the Minister of Justice and approved by the President of the Republic to remain in office. While offering the judges a possibility to serve in other courts, it de facto removes them from office. Furthermore, the proposed law permits for ex lege termination of service of almost 400 staff members of the Supreme Court, leading to their collective dismissal. The bill on the Supreme Court also establishes a new special disciplinary chamber in charge of disciplinary proceedings for all legal professions. The disciplinary chamber’s autonomous position vis-à-vis the First President of the Supreme Court makes it ripe for abuse by the Minister of Justice who, via his representative, would have the power to initiate disciplinary proceedings against any judge.

Finally, the third act is the bill amending the Act on the National Council of Judiciary. It terminates the office of all current members of the Council and introduces a new appointment procedure for the representation of judges in the Council. Prior to the bill’s proposal the Constitutional Tribunal confirmed the possibility of ending the term of current members of the Council. In proceedings initiated by the Prosecutor General (who also holds the office of the Minister of Justice), the Tribunal ruled that the current practice of individual selection of judges in the Council was unconstitutional.  This decision prepared the ground for termination of their office provided in the proposed act on the National Council of Judiciary.[3]

Although these changes may not appear revolutionary, their immediate effect would be concentration of power in the hands of the Minister of Justice and the parliamentary majority (and, importantly, the limitation of some of the presidential prerogatives). By taking over the Supreme Court, the government would also gain influence over any question of the validity of elections and nationwide referenda. By appointing the First President of the Supreme Court, it would automatically decide the Chairperson in the Tribunal of the State adjudicating cases of constitutional offence.  Last but not least, the political purge in ordinary courts is likely to have disastrous consequences for society–especially if one takes into account the political campaign portraying the judiciary as the allegedly most corrupt, and yet immune, social caste.

Unlike FIDESZ in the Hungarian Parliament, which won the constitution-making majority in 2010, the Law and Justice in Poland is not a supermajority capable of changing the Constitution. Yet, it has already done it by adopting laws in blatant disregard of the letter of the Supreme Law and insisting on constitutional interpretation, which is irreconcilable with the fundamental principles enshrined in the Constitution. Unlike in Hungary where Prime Minister Victor Orbán is a politically and constitutionally accountable actor, the regime change in Poland has been carried out by the leader of the Law and Justice, Jarosław Kaczyński, who does not hold any official position except the MP seat in the Lower Chamber.

In his public speeches, not only did Kaczyński challenge the authority of the Constitution as a self-imposed limitation of the sovereign but he also set a goal of regaining national sovereignty (and pride). On the private level, as the twin brother of the former President of the Republic, Lech Kaczyński, who tragically died in the Smolensk plane crash, Kaczyński’s motivation is much more complex. It ranges from revenge to rivalry with his brother’s role in Polish history. History will certainly never forget Jarosław as a grotesque figure in this revolution, which has turned back the clock of almost 30 years of Polish transition to democracy.

While his emotional appearance in the Parliament last week (calling the opposition traitors and murderers of his brother) casts doubts on Kaczyński’s sanity, the rhetoric of recapturing national sovereignty is very popular–especially among those who consider themselves victims of the Polish democratic transformation or feel deceived by the political elite. In this revolution, and the Polish-Polish war, the Nation needs to face many enemies–“disease spreading” refugees, abortionists, proponents of “gender ideology”, “traitors” (like Donald Tusk), “collaborators” (like Lech Wałęsa), Communists, and other ordinary hooligans (like the charismatic leader of the biggest charitable organization, Jerzy Owsiak). All this is happening in the middle of Europe, in a Member State of the European Union, in spite of all of the defense mechanisms in place to maintain the rule of law.

In essence, the Polish revolution-by-law reveals the paradox of liberal constitutionalism, in that it is unable to defend itself against tyranny of the majority and the betrayal of common European values. It also proves the thesis that the downfall of nations is a cyclical recurrence in human history with a dialectical development. The legacy of the nonviolent democratic Revolution of 1989 is being dismantled by the nonviolent counter-revolution of the Law and Justice. Although the acts on the Supreme Court and the act on the National Council of Judiciary were vetoed by the President after several days of fierce street protests, his act of reason should not lead to the conclusion that the revolution is over. Rather, it demonstrates that the power struggle on the top is merely a political play. While the President of the Republic is trying to gain some independence from Jarosław Kaczyński, he nevertheless rubber stamps the law permitting a political purge in ordinary courts.

Suggested Citation: Anna Sledzinska-Simon, The Polish Revolution: 2015-2017, Int’l J. Const. L. Blog, July 25, 2017, at: http://www.iconnectblog.com/2017/07/the-polish-revolution-2015-2017

[1] See the amended Assembly Law of 2016, which introduced the institution of cyclical assemblies preventing the organization of other assemblies on certain dates and in certain places.

[2] See the proceeding on the budgetary bill in a room that could not contain all MPs but the ruling majority, or the proceeding on the system of funds distribution for civil society organizations without the participation of their representatives in the parliamentary debate. Another example concerns the rejection of the motion for the nationwide referendum on education reform signed by almost 1 million citizens.

[3] Judgment of 20 June 2017, Case no. K 5/17.