With the Government responsible for Poland’s democratic backsliding losing legislative control, can its power entrenched in the courts be undone by the new Prime Minister?

With the fall of Communism, Eastern Europe saw a period of rapid democratization, as the people yearned for a new system of governance away from the authoritarianism during their time as the Eastern Bloc. Unfortunately, since those days of early democratization, Eastern Europe’s democracy has eroded, with autocrats and populists rising to lead many of the nations in the area.

However, unlike countries such as Hungary or Slovakia, with their populist and autocratic leaders, Poland has decided to break from the autocratic trend, and in 2023 elected a new government with hope for a more democratic future. A year has passed since then, so how is Poland’s democracy doing today?

Since taking office in 2023, Donald Tusk and his Civic Platform government have attempted to try and undo quite a lot of Poland’s democratic backsliding under the previous Law and Justice governments. This has put him at odds with the President, Andrzej Duda, who himself is a member of Law and Justice.

Tusk has particularly taken aim at the Constitutional Tribunal, an institution which was taken over by Law and Justice in 2015 after President Duda refused to allow judges nominated by Tusk’s party take office, instead replacing them with judges of his own party once Law and Justice took power.

To rectify this, Tusk introduced and passed the Constitutional Tribunal Act, which would remove the judges that were put in office after the fiasco of 2015. The bill would also invalidate all rulings that those judges were involved in. Unsurprisingly, Duda, as of last month, has refused to sign the act. Instead, he decided to ask the Constitutional Tribunal stacked with members of his own party to review the act which he says is just to make sure the act is constitutional.

Duda’s rejection of the act is merely an attempt to hold on to the most powerful of Law and Justice’s controlled institutions.

The actions of Law and Justice around the court almost perfectly align with Ozan Varol’s idea of how judicial review is used to consolidate power. In his view, judicial review can be used quite easily by an anti-democratic government to bolster the interests of the regime that controls it. However, the more important part of Varol’s analysis of anti-democratic actions around the courts is the use of the court as a scapegoat.

This can be seen with Duda’s challenge of the constitutional tribunal reform today, he doesn’t want to directly reject the bill, as it would mean that he is directly against reforming the constitutional tribunal. Instead, he’s letting the constitutional tribunal make sure the bill is constitutional and considering that the tribunal has long been under the control of his party, surely, they’ll find it unconstitutional, allowing Duda to dodge responsibility.

Considering a presidential election in Poland is scheduled for next year, one that could be won by Civic Platform, Duda is merely trying to make sure that he keeps control over the constitutional tribunal as long as possible. If the tribunal does stay under Law and Justice control, they can argue that any attempts under a potential Civic Platform president to reform the tribunal would still be unconstitutional, causing a constitutional crisis. It would also mean that the Constitutional Tribunal can block any other efforts to reform Poland from a Civic Platform government as well.

With all of this talk about reforming the courts however, one thing seems to hide under the surface, the idea that the Civic Platform would be removing these justices and replacing them with their own. To the Civic Platform, this is only fair, as their justices were wrongfully rejected the first time. But if they just end up taking over the court, it begs the question, is the Civic Platform really saving democracy? Or are they really just trying to flip who gets to control the country in a war of backsliding?

Control over the courts could simply change who gets to control the country’s backsliding, determining whether power will remain with Law and Justice, or transfer over to Civic Platform.

In Daniel Ziblatt and Steven Levitsky’s How Democracies Die? there’s an important note about capturing the referees. This obviously has happened under the previous Law and Justice governments, as they rejected the legitimate nominees, and then replaced them with loyalists. This could also be described as court packing, with Ziblatt and Levitsky specifically calling this event court packing.

However, with the changes that are supposed to be brought forward under this new bill, the current Civic Platform government would have the same kind of control over the tribunal as Law and Justice did when they were in office, as the vacated seats declared illegitimate could simply be packed again with their own loyalists, the party has no obligation to reestablish an independent court.

It’s also notable that they wish to just completely strike all decisions made by the constitutional tribunal. Which itself is just bypassing the referees, something Ziblatt and Levitsky also mention. Instead of retrying cases, the idea is just to completely remove them. Even though they may say the judges themselves were legitimate, it wouldn’t be a stretch to say that it sets a dangerous precedent that with each change of power, one could just strike all the decisions of the judges of the previous tribunal if they have control of the Parliament and the Presidency.

Ultimately, while Poland is currently moving in a direction towards democracy thanks to Donald Tusk, they still have a long way to go. Until the next presidential election in 2025, there’s no doubt that President Duda will continue to keep Law and Justice’s entrenched power in any way. However that presidential election also brings with it a dangerous power for the Civic Platform government, one that could see little change in democratic backsliding, however this time, it will be put in place for the name of saving democracy.