Poland’s ruling Law and Justice party hopes a presidential election this year will help cement its authoritarian rule — but opposition parties have different ideas.
By Claudia Ciobanu
Poland’s Law and Justice party (PiS) may have won a general election last autumn, but opposition parties are busy making sure the governing party does not have it easy in its second term in power.
The biggest thorn in PiS’s side in 2020 is likely to be the Senate upper house, narrowly controlled by the opposition after the October election.
When the populist PiS first gained power in 2015, it was able to pass controversial justice reforms literally overnight. But the new balance of power means it will have to sweat a bit more to pursue a strategy widely condemned as an attack on judicial independence.
The party has been on the back foot since a European Court of Justice (ECJ) ruling last year that said Polish courts must be deemed independent to be considered functional courts in the European Union. Analysts say this means that several judicial bodies created by PiS are basically disqualified.
PiS proposed a new draft law, published during the night (as the party tends to do) on 12-13 December. The legislation would introduce sanctions for judges who follow the ECJ ruling or are otherwise thought to be engaged in “political” activities (the assessment is made by disciplinary bodies under the control of Justice Minister Zbigniew Ziobro).
In short, the new law could mean that judges who disagree with PiS’s justice reforms can be fired.
The draft law — dubbed the “repression act” by critics — was passed smoothly by the PiS-dominated Sejm, the more powerful lower house of parliament, despite criticism from the European Commission and international judges’ associations.
But Senate Speaker Tomasz Grodzki, a surgeon and politician from the opposition Civic Platform, has gone to great lengths to ensure the law is properly debated in the upper house.
In the early days of the new year, Grodzki travelled to Brussels to discuss the draft law with European Commission Vice-President Vera Jourova.
He also sought advice from the Venice Commission (an advisory body of the Council of Europe, composed of independent specialists in constitutional law), whose experts came to Warsaw on January 9 and 10 and are set to issue an opinion.
Senate Commissions debated the draft law on January 7 and 8, in widely reported sessions, during which the Polish Ombudsman blasted it for breaching the Polish constitution and threatening people’s right to a fair trial. A further debate on the draft legislation in the Senate plenary is scheduled for mid-January.
While the Sejm can overrule the Senate, even if the latter votes against the draft law, opposition Senators are at least ensuring a public debate over legislation of key importance while also chipping away at PiS’s sense of omnipotence, so prevalent at the start of its first term.
(Meanwhile, several people have accused Grodzki, a former hospital director in the northwestern town of Szczecin, of taking bribes to treat patients, which the Senate speaker denies. Poland’s anti-corruption agency has put out a call on social media asking anyone with information on corruption at the Szczecin hospital to come forward.)
On January 11, Polish judges were joined by colleagues from more than 20 European countries plus over 10,000 ordinary protesters for a silent march through the streets of Warsaw. Wearing their robes, the judges protested against a draft law that would make Polish judges directly subservient to the party in power.
Foreign judges attending said that at stake was judicial independence not only in Poland, but across the EU.
Analysts say the battle over the Polish judiciary is one of the major developments to watch in Poland in 2020.
If PiS manages to pass the “repression act”, the Polish Supreme Court has warned that it could lead to further infringement procedures against Poland by the European Commission — and “in the long run, the need to leave the European Union”.
The reason is that Poland would no longer be respecting the primacy of EU law over national law.
“You can’t be a member of the European Union if you don’t have independent, impartial courts operating in accordance with fair-trial rule, upholding union law,” Koen Lenaerts, president of the ECJ, said at an event at Warsaw University on January 9, echoing the warning of the Supreme Court.
Importantly, 2020 is also the year when Malgorzata Gersdorf, the First President of the Supreme Court, reaches the end of her mandate.
Gersdorf has been instrumental in safeguarding the independence of the Polish Supreme Court by, among other things, refusing to stop going to work after PiS passed a law calling for her early retirement in 2017. (The ECJ later declared the law contrary to EU legislation).
Under her leadership, the Polish Supreme Court has questioned controversial judicial reforms introduced by PiS and asked the European Court of Justice to intervene.
The battle over who will replace Gersdorf will be hard-fought. PiS, which controls the Constitutional Court, will be keen to see a more friendly face presiding over the Supreme Court as well.
Analysts say that along with the “repression act”, a subservient Supreme Court would be the final nail in the coffin of an independent judiciary.
The European Commission has already initiated “Article 7” disciplinary proceedings against Poland over the rule of law, as well as several infringement procedures. And the ECJ is still to issue further rulings.
While PiS did row back on certain controversial moves during its first term, this time around it appears determined to ignore the ECJ and ram through its planned reforms.
Some observers say its weaker grip on power following the general election in October might actually prompt PiS to push the accelerator on making sure it controls key institutions.
The rule-of-law spat with Brussels is expected to result in lower allocations for Poland from the new EU budget for the period 2021-2027. Opposition parties hope a loss of EU funds could stir voter dissatisfaction with the government, though that could take time.
What a difference a president makes…
While resistance in the Polish Senate, on the streets and in Brussels is significant, it is not enough to stop a determined PiS from passing the legislation it wants, experts say.
That is why the question of who will be the next Polish president, to be decided during elections in the spring, is key for Poland’s democratic prospects.
While the Polish president does not hold much executive power, he or she can veto legislation passed by parliament. To overturn any veto, the Sejm needs a two-thirds majority. As things stand, the United Right alliance around PiS has 235 out of 460 seats, or just over half.
October’s general election gave progressives reason for hope. The democratic opposition (comprising three formations entering parliament minus the far-right Confederation) won the popular vote by a small margin, attracting 8.96 million votes compared with 8.05 million for PiS.
But several months later, the situation seems less rosy for the opposition. Polls so far indicate that incumbent President Andrzej Duda, a faithful PiS ally, is the frontrunner.
Duda is diligently doing his homework. He has been tirelessly campaigning across the country, having completed a whirlwind tour of all Polish gminas (basic administrative units) by the end of last year.
Meanwhile, most opposition candidates only made themselves known to the public at the end of the year, leaving them just a few months to woo voters.
The main contenders are Malgorzata Kidawa-Blonska, representing the centrist Civic Coalition; Wladyslaw Kosiniak-Kamisz from the agrarian Polish People’s Party; Robert Biedron from the left-wing Lewica alliance; and independent Szymon Holownia.
The far-right alliance in parliament will also field a candidate, following the primaries. Many pundits think Krysztof Bosak, vice-chair of the National Movement, is the likeliest candidate — a man who presents himself as a mild-mannered, modern face of the far right.
Kidawa-Blonska, representing the largest opposition party, is running on a message of national unity. Such a message rightly diagnoses voter fatigue with political conflict, though some commentators find it less than inspiring.
With at least three months before the election, the race is anything but certain.
Given the stakes, many analysts expect heated months of campaigning ahead — and quite possibly a tightening of PiS’s stranglehold on power and a sharpening of its nationalist-conservative rhetoric.
“We can expect the culture war to get stronger in 2020,” sociologist Elzbieta Korolczuk wrote in a recent piece for oko.press. “Because PiS will have a hard time finding the money for the next social programmes that would have the same impact as 500+, and because it has no ideas for how to reform public services.”
Under its “500+” programme, PiS gives families around 115 euros a month for each child they have.
Korolczuk said that now that left-wing parties have entered parliament, PiS has serious rivals when it comes to criticising the neo-liberal policies of previous governments, a key theme of its political rhetoric.
To distinguish itself from the left, Korolczuk said PiS is likely to pump up its conspiracy language, presenting the left as “Soros-sponsored elites, genderists, advocates of the sexualisation of children, defenders of gays and of feminine word forms”.
The presence of the far right in parliament will likely compound this effect, the sociologist added.
“The biggest challenge [for the democratic opposition] will be to find a new language and emotions, which attract people, which allow them to believe that we can look to the future with hope,” Korolczuk said.
Jacek Zakowski, a publicist for the Polityka centre-left weekly, calls for something similar.
“Since we’re constantly losing and constantly fewer, it means we are missing something,” Zakowski wrote in the Gazeta Wyborcza newspaper. “And if the others are still winning against us, it means they have something we are lacking. What are we missing the most? An idea. A project.”