In autumn 2023, Polish parliamentary elections will take place 8 years after the Law and Justice Party came to power and the “Rule of Law crisis” with the EU commenced. In this first RevDem Rule of Law podcast of the year our editor Oliver Garner discusses the “8th season of the Polish telenovela” with Dr. Anna Wójcik.
Dr. Anna Wójcik is an assistant professor at the Institute of Law Studies at the Polish Academy of Sciences and she has co-founded two Rule of Law monitoring projects in Poland – the Wiktor Osiatyński Archive and the “Rule of Law in Poland”.
Oliver Garner: We had a busy “season finale” to 2022 within Poland with the controversial Justice Minister Zbigniew Ziobro surviving a no confidence vote in Parliament. 2023 has also opened with further parliamentary drama regarding a new bill concerning the controversial judicial reforms in the country. Could you provide an overview of the constitutional and political intrigue in Poland for our listeners?
Anna Wójcik: So let’s move to mid-December when Justice Minister Zbigniew Ziobro survived yet another vote of no confidence. We may say that in Poland the opposition is routinely requesting such votes on the fate of the Minister who is responsible for the Rule of Law backsliding in Poland. The previous vote on such a motion was in May 2022. However, this December vote was exceptional because it was not as certain as it used to be that Ziobro would keep his position. It was a big test for the ruling coalition that has been greatly preoccupied with infighting since winning its second term in 2019. Since 2015, Poland has been governed by a coalition government named United Right that has included three parties: the right wing Law and Justice (PiS) party, led by Jarosław Kaczyński, an increasingly extreme right-wing party Solidarna Polska, led by Ziobro, and a so-called Tory party, Porazumienie, led by a former Deputy Prime Minister, Jaroslaw Gowin, who quit in 2021 or was kicked out over his criticism of the planned tax reform, and also over his criticism of the “ghost” presidential election for which PiS pushed in spring 2020 during the first dramatic months of the pandemic.
So, just to show you the numbers, the United Right has 228 MPs; the Chamber consists of 460 deputies, so they don’t have an absolute majority, but of course they can still pass bills because they persuade the number of MPs that they need from other smaller parties. Among those 228, 17 are Solidarna Polska MPs. So they are really crucial.
Over the years Solidarna Polska has wanted to distinguish themselves from PiS, so they became increasingly radically Euroskeptic, Germanophobic, and socially conservative. They are anti-EU Green New Deal, they have waged this anti-LGBTQI+ rights crusade, they have supported restrictions to the abortion laws, etc. Importantly, they have also challenged – both rhetorically but also through legal motions – the case-law of the Court of Justice of the EU and the European Court of Human Rights. Ziobro does this as the Prosecutor General.
Against this background we also need to see that Jarosław Kaczyński is already 73 years old and we have a situation straight out of the “Succession” TV series where we have a competition over who will be the next successor.
We have four contenders: the Prime Minister Mateusz Morawiecki, Justice Minister Ziobro, Defense Minister Mariusz Błaszczak, who is very loyal, but not very charismatic, and President Andrzej Duda. Today Polish politics and the Rule of Law issue is hostage to this situation of competition between the contenders. In recent months we’ve seen that Solidarna Polska has been accusing Prime Minister Morawiecki of treason for accepting certain EU policies, such as Fit for 55, the budget conditionality regulation, Next Generation EU, and the Rule of Law milestones in the Polish Recovery Plan. They are accusing PiS of being too centrist and they present themselves as the true radicals.
I would say that this leads to a very specific situation where they are actually criticizing each other more than the opposition. There’s always been distinction, but the situation is so toxic that even the Prime Minister didn’t support one of the bills that were favored and presented by Ziobro. But PiS have to show a united front and so they have kept Ziobro as Justice Minister.
Thank you for that overview and that fascinating insight into the infighting that’s happening within the ruling coalition. For those listeners who might not be as familiar with Polish politics, do the repeated no confidence votes in Ziobro indicate a broader dissatisfaction among parliamentarians with the government’s program on the Rule of Law? Or do you think the issue relates more to his personality as Justice Minister?
Well, he has quite a standoffish personality, that’s for sure. But I would say that today everyone is dissatisfied with his changes to the judiciary, not only the European Commission. They are being openly criticized not only by the opposition in Poland, but by PiS – by Kaczyński and by Morawiecki. The Prime Minister is criticizing it for failing to meet the goal of making proceedings faster, and he complained that the digitalization in healthcare, for example, has happened much faster and much better.
So we see that the PiS leadership is criticizing the changes for not fulfilling the official goals, but also for not meeting the unofficial ones – the majority of judges in Poland are still independent, they are not subordinated, and they are winning cases before the European Court of Human Rights and the Commission is winning cases before the Court of Justice of the EU.
I would say that in 2022 the EU institutions found new energy to push for Rule of Law compliance in the Member States. So, against this whole process, the Polish government increasingly sees that it’s just too costly to keep this reform. At the moment it is costing the €36 billion that are frozen from the Polish recovery fund, but also the reforms are costing this daily penalty of €1 million for not complying with the CJEU order in a still pending case regarding the “muzzle law”. The total amount of fines is already €442,000,000. Polish voters are also really worried about this prolonged negotiation with the European Commission, and still PiS is unable to make a compromise within the party, and it is also unable to convince the President to make necessary changes. However, the PiS leadership is already campaigning for the elections, and during the tours of the country Kaczyński is still promising further changes in the judiciary. He said that “the court reform is absolutely necessary. What is happening in the courts today is one gigantic scandal. There is systemic inequality before the law. This needs to be changed, but it is difficult in the current political climate”.
Basically Kaczyński is implying that the courts are part of the liberal entanglement of powers and that they rule more leniently in cases regarding celebrities, politicians, and all people close to their liberal leftist allies.
The situation is really difficult for the government because the elections are coming this autumn and the European Union enjoys 2.5 times more trust than the Polish state authorities, according to the latest Eurobarometer. Poles are really worried that the government has stopped delivering, and so they are worried about the cost of living crisis.
In November 2022, inflation was 17.5% month to month (compared to November 2021). People worry about security with the blocking of the recovery funds. I think that PiS is also increasingly convinced and panicked that the opposition will spin this narrative and convince Poles that other EU funds will be suspended, such as cohesion funds as has happened in the case of Hungary. What is happening in Hungary and all this increased EU pressure and consistency is also really impacting public opinion here in Poland. If we look at the polls, PiS has lost several percentage points since winning the elections in 2019. But then the situation was completely different, as it was a peaceful and prosperous moment in Polish history. Back then PiS got 43% of votes, and now they are polling at around 30% with a maximum of 35%.
This is a very fluctuating result but actually the situation maybe is not that terrible for them.
The winter is warm and the days will get longer and Polish people will get more optimistic, especially on the point that economic forecasts are not great, but also not terrible. PiS is also really actively recruiting its core voters – pensioners and retired people.
They have already promised big social transfers and other measures that will happen “accidentally” just before the election, such as granting pensioners the 13th, the 14th, and maybe even the 15th pension. This is straight out of Orbán’s playbook in Hungary. So in summary I would say that this is a situation that for PiS is quite difficult. But I wouldn’t say that they completely do not stand a chance during this election.
I think that our listeners will be fascinated to hear about the political contestation that is happening within Poland, not only amongst governmental actors and parliamentary actors, but also amongst the population. To move on to the topic of the Rule of Law tension between the EU and Poland, since summer 2022 we have seen some changes to the situation, such as the removal of Disciplinary Chambers in Polish courts. Yet new similar bodies seem to have been established, such as the Chamber of Professional Responsibility to replace these Disciplinary Chambers. Do you think that the risk arises that the Polish government might abandon its policy of open confrontation with international institutions in exchange for a more insidious and informal approach behind the scenes akin to that pursued by Hungary?
Yes, the Polish government can’t afford to lose the billions of recovery funds, and also it can’t afford to lose face by not being able to make a deal with the European institutions. We’ve seen many changes at the moment that are indicative of this situation. First, the Constitutional Tribunal is not ruling on motions that were brought by Prosecutor General Ziobro. This means that there would be no further antagonism arising from the Polish leadership abusing the Constitutional Court. Secondly, the European Affairs Minister was changed, and the new one is quite friendly with Commissioner Didier Reynders, and we’ve heard that he has made a better impression, and his proposals are supposedly more constructive. Of course, there are rumors that were actually confirmed in part also by the European institutions that a deal was struck in Brussels. That has created big internal opposition in Poland from the Justice Minister who is opposing the “Brussels diktat” and writing Polish laws on the Supreme Court and other acts in Brussels.
But, on 12 January, parliamentarians finished working on a draft project that was first presented in mid-December. This project entails, among other things that this Chamber of Professional Liability will not consider disciplinary cases against judges; instead, these cases will be considered by the Supreme Administrative Court. That is quite a bizarre situation, to be honest, because the Supreme Administrative Court is constitutionally tasked with considering cases related to actions of public administration and not disciplinary cases against judges. So on 11 January in the Sejm the President of the Supreme Administrative Court raised objections to the proposed solutions. In addition to all of the constitutional concerns, he also listed difficulties such as the small number of judges in the Court, short time frames for dealing with cases assigned to them, the issues regarding draw for judges for adjudication, and that the vacatio legis would be too short. So there’s a lot of objection. Also, the Supreme Court and the National Council for Judiciary objected, and we see that the Justice Minister objects to that. But PiS managed to convince parts of the opposition that they should proceed and work on this proposal.
However, civil society considers that the proposal does not meet the milestones and that it would not implement judgments of the European Court of Human Rights and the Court of Justice of the EU. In particular, the bill does not repeal the provisions of the so called “Muzzle Law” Act, which entered into force in February 2020. This bill prohibited, under disciplinary penalty, questioning the status of a judge, among other things. At the moment we have this big debate within Poland because judges are using the case law of the CJEU and the ECtHR to question the proper appointment and independence of people who were either appointed or promoted during the term of the new National Council of Judiciary that were selected on the basis of rules that were changed by PiS.
This body – the new National Council of Judiciary – is the heart of the problem with this whole Rule of Law crisis regarding the judiciary dimension.
So we see that there is a really big push from Law and Justice to finalize this bill. However, the biggest obstacle is actually their friend. President Duda announced that he would veto any bill that would cast doubt over his constitutional competence to appoint judges.
He is really worried about any phrasing that he sees as potentially curtailing this competence. There are many venues where Prime Minister Morawiecki and President Duda may go to speak about matters such as not vetoing this bill, but they also probably talked during the funeral of the former Pope Benedict XVI in Rome – so perhaps there is also this Italian dimension of the Polish Rule of Law saga! As with any telenovela we do not know the outcome yet, but definitely this is something that will play out in the coming weeks.
Thank you for that sobering analysis of the complications that may still stand in the way of a pathway to resolution, despite the political will that may be there now. We’ve briefly discussed Hungary in one or two of your answers. Before Christmas we saw the first steps being taken towards the EU budget conditionality regulation being activated against Orbán’s regime. How do you think Poland would react to such a development? Would we see the wedge that was driven between the two countries by Orbán’s policy on the Ukrainian war continue and deepen? Or could the shared economic interests of both countries’ governments drive these illiberal partners back together?
Maybe the first comment would be on the shared economic interest. Poles and Hungarians are considered close friends. We are friends because we don’t share the border, so we are perfect neighbors… But also, if you look at the trade balances between the two countries, we are not that interconnected. So I would say that there was always this transactional ideological friendship that played out and steered the European Union.
However, in practice, I would say that Warsaw wants to decouple from Budapest at the moment because of Orbán’s brand of doing politics and saying that Hungary’s geopolitical security and economic interests lay somewhere else than Poland’s and the rest of the European Union’s concerning Russia and Ukraine.
This is something that is very well known by voters in Poland and this is something that the Polish government and the opposition cannot and do not want to stick to. So, I would say that Poland has showed that it’s ready to sacrifice friendship with Orbán and basically also supported starting the conditionality regulation against Hungary. We’ve seen the end of this famous friendship, at least for the moment, and some people consider that perhaps – if Morawiecki stays as the Prime Minister – we will seek more rapprochement with Italy under Giorgia Meloni.
So, I see that Law and Justice need to recalibrate its European policy a little bit and they seeks allies where they can find them. At the moment there is a strong interest in supporting Ukraine, in fighting with the cost of living crisis, while at the same time trying to improve the Polish military. There is a lot of uncertainty regarding these areas and, in this respect, I would say that what happens with Hungary is not Warsaw’s business anymore. This may very quickly change if the Polish recovery plan is accepted and the funds are transferred.
Also, maybe if the funds are not transferred in April, we’ll see that the Polish and Hungarian governments are coordinating their positions regarding the EU and the recovery money again because the deadline passes for implementing the milestones in the Hungarian recovery plan at the end of March.
Perhaps then we will see some changes, but at the moment Poles are preoccupied with the Polish situation and Ukraine in general.
We’ve seen how the Ukraine conflict has really shifted the tectonic plates geopolitically around the world and this seems also to be the case in the EU’s values crisis. Looking ahead to another point which could be a volta in the story – the parliamentary elections in Poland will take place in autumn 2023. Do you believe that Rule of Law issues will play a salient role, or will these issues be overshadowed by the more immediate existential problems of potential economic turmoil and war on Poland’s doorstep? Finally, do you believe there is any threat that the elections won’t take place on an even footing for the opposition, as has been claimed was the case in Hungary’s elections last year?
I will reply by quoting a very good analyst, Jakub Majmurek ,who published a really good analysis of voters concerns before the elections, and how they perceive elections.
He referred to the image of a duck and a rabbit. Depending on who you are, and what your associations are, you see either a duck or a rabbit. And this is what Polish voters see. Some of them see the elections as this existential issue.
If they are supportive of PiS, they see it as a decisive moment for guaranteeing this third decisive term. They also fear the forces of globalization, and rights and EU values, especially anti-discrimination law, being imposed on them. This is also an existential election for people who consider that we’ve been through the constitutional erosion and that we are basically living in a dictatorship under Jarosław Kaczyński. But for many voters, as in many countries who are not following politics that much or are not that emotional, this will be a reasonably fair and normal election. I would say that their expectations are not as grand; they just expect policy proposals, and of course Poles know that PiS has guaranteed that the playing field is heavily tilted towards them. For instance, they have a very powerful public media that has been made infamously into a government propaganda machine. Plus, there are several issues that play to their advantage, such as the geopolitical situation, security concerns, and the “rally around the flag” effect.
But, on the other hand, PiS has already announced certain changes that are difficult to criticize, such as increasing the number of electoral commissions – polling stations – so that people who live in rural areas don’t have to travel to other cities or towns, but instead have their polling station close by. This is, of course, a very happy coincidence for PiS because it just so happens that a significant part of their voters live in the countryside and are elderly people. So, according to polls, 50% considers that there might be problems with the fairness of the election. We actually had problems with electoral fairness in the presidential election of 2020 when other candidates couldn’t campaign on par with the incumbent Duda. So Poles are, I would say, quite worried. Compared to Western Europe, in countries such as Poland participation is still not that high. The turnout in the last elections was around 60% and it would be a major success if that were sustained. So now parties are trying really hard to mobilize their voters, but I would say that the mood in the country is quite gloomy. This is also something that is really not pushing participation forward. We’ll be closely monitoring what’s happening, and I’m also sure that external observers – such as at the CEU Democracy Institute – will monitor and comment on this very eventful year!
In collaboration with Teodora Miljojkovic.
The transcript has been edited for length and clarity.