Agencja Gazeta / Mieczyslaw Michalak via REUTERS

The Assault on Poland's Judiciary

The Danger Is Not Gone, and the EU Must Step Up

Poland’s democracy is in peril. Since coming to power in 2015, the Law and Justice party (PiS) has subverted the country’s democratic constitutional order and sought to replace it with a form of competitive authoritarianism. The party began its assault on liberal democracy by neutering and seizing control of the Constitutional Tribunal, Poland’s highest court, last year. This month, PiS lawmakers sought to complete their takeover of the judiciary with three controversial pieces of legislation. One measure would have let the minister of justice oust the Supreme Court’s current members and replace them with party loyalists. The second would have given parliament control over the National Council of the Judiciary, the previously independent body that appoints and promotes Poland’s judges. A third proposes to give the minister of justice the power to dismiss and appoint the heads of Poland’s lower courts.

Facing pressure from tens of thousands protesters and the threat of sanctions from the European Union, Polish President Andrzej Duda said on July 24 that he would veto the first two bills. But the threat to constitutional democracy is far from over. Duda has signed the third bill into law, and the PiS government will likely respond to his vetoes by amending the legislation slightly before trying to push it through again.

PiS lawmakers argue that the judicial reform measures would improve a corrupt and inefficient court system that is controlled by unaccountable elite judges and that has not been overhauled since the communist era. In fact, although some reforms may indeed be warranted, PiS’ proposals were clearly designed to consolidate the party’s rule. With control of the judiciary, PiS would be free to impose restrictions on independent media and civil society groups. It could also manipulate future elections in its favor without worrying that the Supreme Court, which determines the validity of election and referenda results, will stand in its way.

If PiS’ latest moves have brought Poland to a critical juncture, they also the European Union. Will the EU let another member state slide from democracy to electoral autocracy, as it has done in the case of Hungary? That outcome would not only make a mockery of the EU’s claims of being a union of values, it would also constitute a major rupture in the bloc’s legal order. The European Union is built on the rule of law and depends on the cooperation of independent national judiciaries to enforce EU law. If PiS seizes control of the judiciary, then the EU will simply not be able to function in Poland.

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