Since taking control of both the presidency and the parliament in November 2015, Poland’s far-right Law and Justice (PiS) party has swiftly changed the rules for public media, the secret service, education, and the military. In doing so, according to news outlets and human rights groups, PiS has consistently undermined principles of the rule of law and of the European Union, and is heading toward authoritarianism.
But something surprising happened last summer. President Andrzej Duda, a member of PiS, vetoed PiS legislation that would have put the legislature in charge of the judiciary as well. In doing so he surprised even his own party — showing the hazards of what political scientists call a “semi-presidential system,” explained below. Today the members of PiS will be hashing out the details of their compromise proposal, which could further entrench the far-right party’s power. Citizens are massed around the parliament, ready to protest the secret machinations.
Here are the three things you need to know about Poland’s latest crisis.
1. How PiS planned to take control of Poland’s courts
Poland’s National Council of the Judiciary is responsible for nominating candidates for justices. Among its 25 members are four members of parliament, two senators and four ex officio members who are not elected, but vote — the Justice Minister, a representative of the president, the chief justice of the Supreme Administrative Court and the chief justice of the Supreme Court. But the critical majority of the council’s members is made up by 15 judges, selected by the legal community in recognition of their stature and commitment to professional ethics.
PiS’s bill would have changed that. Instead of being selected by their peers, those 15 judges would have been chosen by the Sejm, Poland’s parliament. When the president vetoed the legislation, pundits quickly agreed that he was responding to the mass public protests in the summer of 2016, when tens of thousands of citizens took to the streets, often pushing aside their vacation plans to do so.
Political scientists disagreed, believing that the veto had more to do with the way power flows through Poland’s “semi-presidential” system.
2. How Poland’s “semi-presidential” system derailed PiS’s plans
Poland’s president is elected directly, making him independent of the Sejm. However, Poland also has a prime minister who is typically the leader of the party that won the legislative majority in parliamentary election. The prime minister selects his cabinet ministers from among members of his party and, when necessary, from members of the party that joins the cabinet coalition. Such coalitions are necessary if the cabinet’s agenda is to go anywhere.
Political scientists Matthew Shugart and David Samuels have examined such “dual executive” systems. They suggest that hybrid or semi-presidential systems can threaten the unity of the party in power, even when — as in Poland — the same party holds both the presidency and a parliamentary majority. Because the selection and survival of the two executives are independent from one another, nothing ensures they will act in unison, even when they’re in the same party.
Despite the highly visible street protests, PiS has been gaining public support. The blue line in the graph below shows the percentage of citizens who answered “which party would you vote for if elections were occurring this Sunday?” by saying they would vote for PiS rather than any of the three other major parties in Poland. Support for PiS has been rising over the last two years, and is getting closer to becoming an absolute majority of more than 50 percent.
3. PiS may overcome its divisions and take charge of the Supreme Court
But what good is a legislative majority when the house of PiS is divided between the president, PiS Chairman Jaroslaw Kaczynski (a member of parliament) and a couple of other party rivals?
It seems that the party has worked hard on overcoming such divisions. On Sept. 25, the president submitted his own proposal on reforming the Supreme Court and the National Council of the Judiciary. Since then, Duda and Kaczyński have been hashing out a deal.
The details of this pact are still unknown, even to members of the parliamentary opposition. Polish newspapers have been reporting that current members of the National Council of the Judiciary will be terminated. The Sejm will elect 15 new judges to be members.
The Supreme Court’s mandatory retirement age would be dropped from 70 to 65, which would force 34 of 87 justices into retirement — unless the president suspends that requirement in a particular case. Further, the new Supreme Court would have the power to annul verdicts from the last 20 years.
The proposal was discussed in the Sejm last Friday and then sent to committee. If the president has any amendments, he’ll submit them when the committee deliberates on Tuesday. Committee meetings will be held behind closed doors. That means the contents of the amendments will remain secret until the committee makes an actual recommendation.
Meantime, many citizens have already pledged to be assembled and ready to react in front of the Sejm and in upward of 100 cities at home and abroad. Since last Friday, 28 nongovernmental organizations have been coordinating what will now be the fourth wave of protests in defense of the rule of law in Poland since PiS took power. The organizers’ goal is to flood Polish streets with even larger crowds than were seen in December 2015, December 2016 and this July. The new demonstrations are reacting both to the disrespecting of the rule of law and to the secrecy surrounding the drafting of this new legislation.
Instead of undermining party unity, Poland’s dual executive has obscured the transparency of the democratic process, creating a situation where deals are brokered in the back channels of political institutions away from the public eye.
Monika Nalepa is associate professor of political science at The University of Chicago and author of “Skeletons in the Closet: Transitional Justice in Post-Communist Europe” (Cambridge University Press, 2010).