How Law and Justice captured Poland’s courts (Freedom House)

Photograph: Christian Davies

Poland’s ruling Law and Justice party (PiS) is often described as a “conservative” party committed to upholding “traditional values.” Such labels miss the point: Law and Justice is first and foremost a political movement devoted to overturning Poland’s existing constitutional order and the democratic principles that underpin it.

PiS leader Jarosław Kaczyński has built his political career on the assertion that Poland’s democratic transition after 1989 led to a shadowy post-communist “system” that controls Polish institutions, serves “post-communist elites” at the expense of ordinary Poles, and is upheld by the country’s existing legal order. All of Poland’s woes, from the social to the economic, can be attributed to the activities of this so-called system.

Law and Justice claims to be the only legitimate representative of the people’s interests, on the basis that they are the only ones fighting this so-called system and the constitutional order that they argue preserves its dominance. Kaczyński has long criticised what he describes as legal “impossibilism,” the notion that it is impossible for a democratically elected Polish government to fulfil the “nation’s will” because of the checks and balances imposed on it by the Polish constitution.

The party does not, however, enjoy a constitutional majority in the Polish parliament. To break the hold of “post-communist elites” (in practice, anyone who opposes Law and Justice), PiS claims the right to disregard the provisions of the constitution so as to assert its control over the judiciary, which, it argues, has no right interfering with the people’s will. In the domestic arena, this argument is made explicitly: as Kaczyński told supporters in 2016 during a speech in which he described opposition to PiS as a “rebellion”, in a “democratic state of law,” not even the highest judicial authorities, such as the country’s Constitutional Tribunal, should have the right to defy the executive:

“In a democracy, the sovereign is the people, their representative parliament and, in the Polish case, the elected president. If we are to have a democratic state of law, no state authority, including the Constitutional Tribunal, can disregard legislation.”

My analytical brief for Freedom House describes how Law and Justice put Kaczynski’s theories into practice since assuming office in 2015, using extraconstitutional means to seize control of the judicial institutions of the post-1989 Third Republic – an incremental but systematic process described by one distinguished Polish law professor as amounting to a “constitutional coup d’etat.”

You can read the full report here, and download the PDF here.

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