Winter has come to Europe, but it seems to be springtime for the continent’s autocrats. Following the example of the Hungarian Prime Minister Viktor Orbán and his Fidesz Party, Poland’s new government, led by the nationalist-populist Law and Justice party (PiS), has launched assaults on the country’s judiciary and public media, putting Polish democracy and the rule of law at risk. In December, tens of thousands of Poles demonstrated against thegovernment’s illiberal actions; European Commission officials, meanwhile, have promised to investigate whether the developments in Poland constitute a “systemic threat” to the rule of law there. Unsurprisingly, Jaroslaw Kaczynski, the leader of the PiS, has dismissed the protestors as traitors and rejected criticism from abroad.
In Poland’s political crisis, the European Union is reaping the consequences of its inaction against Hungary’s drift toward authoritarianism over the past five years. By failing to aggressively counter Orban’s grab for power, the European Union signaled to aspiring autocrats across the continent that they could commit similar attacks on democracy and the rule of law without facing meaningful consequences. Clearly, Poland’s PiS took note and has acted accordingly. If the European Union allows a second, much larger state to turn away from pluralist democracy and the rule of law, then the EU’s standing as a union of democracies and a beacon for liberty in the region will be damaged irreparably. European Union leaders need to act quickly and forcefully to help preserve liberal democracy in Poland by making it clear that the country could face costly sanctions, including the suspension of EU funding, if the PiS-led government does not respect democratic principles.
A CONSTITUTIONAL CRISIS
The current crisis began with an illegal move by Poland’s previous government, led by the liberal Civic Platform party, to exert influence over the Constitutional Court, a 15-member body that judges the constitutionality of legislation passed by Poland’s parliament. Not content with only appointing replacements for three Constitutional Court judges who retired in November, the outgoing government also sought to appoint replacements for two judges who were set to retire after their terms expired in December, by which point a new government would have taken office. On December 3, the Constitutional Court struck down the latter two appointments, but held that the three judges appointed in November should take their seats on the Court.
The story could have ended there, with the swearing in of three judges appointed by the Civic Platform in November and the selection of two other judges by the new PiS government. But by the time PiS took power in mid-November, it was in a combative mood. Throughout November, the PiS-backed President Andrzej Duda refused to swear in judges appointed by the previous Civic Platform government, blocking them from taking office. Rather than waiting for the Constitutional Court to rule on the validity of the appointments, the PiS-led parliament declared all five appointments invalid and appointed five replacement judges of its own. Then, the night before the Constitutional Court was set to rule on the validity of the originally appointed judges, Duda hurriedly swore in PiS’ replacements. (Rejecting this brazen defiance of its authority, the Constitutional Court has refused to hear cases together with the PiS’ illegitimate replacement judges.) Finally, in late-December, parliament passed a law designed to further hamstring the court, requiring, among other provisions, that at least 13 of its 15 judges be present to hear most of cases. Because there are only ten uncontested judges on the Court today, the law effectively precludes the body from hearing cases until it accepts the new government’s replacement judges.
Poland’s constitutional order is thus locked in a standoff, pitting the parliament and the president against the…