With its latest move to purge the country’s Supreme Court and turn judges into political appointees, Poland’s ruling Law and Justice party has ramped up its assault on democratic checks and balances.
Buoyed by U.S. President Donald Trump’s recent visit to Warsaw — during which no mention was made of the nationalist party’s defanging of another major court, the Constitutional Tribunal, earlier this year or any of its numerous anti-democratic actions since winning power in 2015 — the government appears to have been emboldened to hasten its march toward authoritarianism.
Its latest parliamentary initiative, likely to be signed into law next week by President Andrzej Duda, would trigger the immediate dismissal of all of Poland’s current Supreme Court judges, except those the president decides should stay. Additionally, this month, the government decided that members of the National Council of the Judiciary — a body that picks all of the country’s judges — will now be selected by parliament, rather than by other judges as used to be the case. These moves together effectively hand politicians full control over the judicial branch, leaving the path clear for the ruling party to rest assured that whatever bills it passes will essentially be rubber-stamped by Poland’s most important courts.
The move prompted nationwide protests and renewed criticism from European Union officials, who have repeatedly castigated Poland’s ruling party for undermining democratic institutions and rule of law in the country since it came to power. The first vice president of the European Commission, Frans Timmermans, stated in a press briefing in Brussels that the changes “would abolish any remaining judicial independence and put the judiciary under full political control of the government.… Judges will serve at the pleasure of the political leaders, and be dependent upon them, from their appointment to their pension.” He warned that the EU’s executive is “very close” to triggering Article 7, a procedure assessing systematic threats to the rule of law and potentially triggering sanctions, including the suspension of Poland’s voting rights in the Council of the European Union. Were this to happen, it would set a major precedent and serve as a huge knock to Poland’s standing within the EU: No other EU country has ever been subjected to the process.
But sanctions require the consent of all EU members, and Warsaw’s European illiberal bedfellow in Budapest is likely to veto any such moves. Hungary’s autocratic prime minister, Viktor Orban, has already sent a letter of support to Warsaw expressing dismay that Poland was being “insulted and attacked by the European Commission.” And while the U.S. State Department expressed “concern” about the “Polish government’s continued pursuit of legislation that appears to limit the judiciary and potentially weaken the rule of law,” the White House is unlikely to come out strongly against arguably the most pro-Trump government in Europe.
The only player capable of nudging the Polish government to reconsider its assault on democratic institutions remains the European Union. But to get anywhere with Warsaw’s current authorities, the EU would need to show far more decisiveness in defending its values than it has so far. Right now, the Polish government simply doesn’t believe Brussels has the will or ability to carry out its threats. When, in July 2016, the European Commission issued Warsaw a three-month deadline to address threats to the rule of law or face potential sanctions, Jaroslaw Kaczynski, the ruling party leader and Poland’s most powerful politician, dismissively described the ultimatum as “amusing.” Indeed, nothing much came of it. The Polish government dismissed the European Commission’s recommendations as “political interference” and largely ignored them, leaving the EU only with its so-called “nuclear option” of Article 7.