The god of war returns: PiS’s controversial judicial nominations

It is hard to interpret the ruling Law and Justice (PiS) party’s controversial new nominees for the Constitutional Tribunal in any other way than as a harbinger for the likely course of the new parliamentary term. Rather than searching for a consensus and widening support for good governance, we are witnessing portents of a tougher course and further stoking of conflicts that have already been ignited.

This is unsurprising, and yet still worrying – especially as the proposal for systemic change to render such divisive candidacies impossible lay on the table for the entire previous term. Unfortunately, neither the Law and Justice party (PiS) nor their main rivals took it up.

Much has been written in recent days on the likelihood that we will see the government “steering a course towards the centre ground”, at least until next year’s presidential elections. But another scenario now looks more probable. The succession of battles lost in October’s elections – despite retaining the advantage in the war – will probably lead Jarosław Kaczyński, the leader of Poland’s United Right ruling camp, to embark on a tougher course.

A war won but three battles lost

On election evening, PiS chairman Kaczyński said, “We have received a lot, but we deserve more”. What did he mean? The ruling party, despite gaining more than two million new voters, only retained the same slight majority in the lower house of parliament that it had gained at the beginning of the previous term.

Worse still from PiS’s perspective, the new parliamentary caucus has considerably larger representation from the wings of the United Right coalition – Jarosław Gowin’s moderate, centre-right Agreement party and Zbigniew Ziobro’s national-conservative, increasingly alt-right United Poland. Kaczyński’s coalition partners therefore have much more say than in the previous four years – including the fact that they can undermine the stability of the parliamentary majority, which Ziobro and his allies began to be suspected of doing even in the first days after the election.

The second reason for the PiS leader’s bad mood was his defeat in confrontation with the competition. Since around 2007, one of Kaczyński’s tactical priorities has been preventing the emergence of competition on PiS’s right flank. This had previously been successful. But now the far-right Confederation has not only gained representation in parliament, but above all achieved respectable support in absolute numbers, with more than 1.25 million votes.

On top of this, the agrarian Polish People’s Party (PSL) has consolidated its position. Another of PiS’s tactical ambitions has been to drive the grouping from the political stage; yet PSL not only regained the (small, but significant) support it had lost to PiS in recent years, it also attracted completely new voters.

The third reason for Jarosław Kaczyński’s dissatisfaction is, of course, the Senate, the upper house of parliament. Here PiS lost their majority and the opposition are ultimately likely to have the advantage, although we may still have several surprising twists in store. Wresting control of the relatively weak upper house is mainly of symbolic importance for the opposition, but at least in terms of personnel – nominating the president of the Supreme Audit Office, the commissioner for human rights and a few other positions – it will certainly thwart some government plans.

So it appears that the latest attempts to improve the ruling party’s image for campaign purposes by “steering towards the centre ground”, have simply added to its problems rather than bringing the expected results. We might therefore expect that the usual fluctuations of PiS, which has long oscillated between the centre-right and hard right, will now bring a renewed period of radicalisation.

And this is precisely what the party’s new nominees for the Constitutional Tribunal – Krystyna Pawłowicz, Stanisław Piotrowicz and Elżbieta Chojna-Duch – seem to suggest.

A caricature of “good change”

Let us be clear: these nominations make a mockery of PiS’s promised “good change”. Piotrowicz is not only a former communist prosecutor and member of the Polish United Workers’ Party. He is also the face of the entire package of transformations made by PiS in the judiciary, which he steered through parliament in his role as chairman of the justice and human rights committee. Voters punished him for this by ensuring that he lost his seat in parliament at last month’s elections. Yet in response Kaczyński has simply offered him a prestigious position.

Krystyna Pawłowicz, when she was concentrating on her university work as a legal scholar, brought a refreshing ferment. She presented her own sort of “constitutional patriotism”, modelled on the American paleo-right. This provided a starting point for a fundamental critique of the Polish state as ignoring the letter and spirit of the Constitution. However, after entering politics as a PiS MP in 2011, she unfortunately earned fame not for her academic work and intellectual courage, but more for her uncouth manners, transgressions of parliamentary ethics, and bizarre tirades against opponents.

Elżbieta Chojna-Duch is a former deputy finance minister from the times of the the former Civic Platform-led government. She is best known recently for her testimony to the VAT investigation commission, a PiS-led effort to expose alleged abuses under the previous administration. She made perhaps the starkest attack of any witness against the finance ministry of Civic Platform era. But her words felt more like a private vendetta than legitimate criticism in the interests of the state.

To sum up: a communist apparatchik who has lost his democratic mandate; an icon of tribal doggedness; and a “convert” deputy finance minister from the times when, according to PiS’s narrative, “VAT mafias were stealing from Poles”. All three nominations are a caricature of the nomination policy we should expect from a serious government.

So why did Jarosław Kaczyński choose them? Because he could

Other nominations were possible

One could, of course, simply wring their hands at the bad intentions of PiS that these nominations betray. The whole package of controversial changes surrounding courts and tribunals comes down in practice to a change in personnel. Following the pre-election “hater affair” at the justice ministry, in which senior officials resigned after being accused of running an anonymous smear campaign against judges opposed to judicial reform, and the latest nominations, it is hard to argue that this is a change for the better.

The alterations to the system have proven to be either cosmetic or ineffective. Court proceedings still go on too long; Constitutional Tribunal rulings are even scarcer and slower than before the changes; and several years of conflict in Poland have led to diminished, not increased, trust in the judiciary as a whole. Looking at the balance sheet of the last four years, the government’s abandoning of real reform and making do with personnel changes, with such large social costs from all the transformations, are among the most serious criticisms we can make.

The problem is that no one was particularly interested in adjusting the system to find a way out of the turmoil surrounding the courts and Constitutional Tribunal. Even at the very beginning of the dispute, in early December 2015, we at the Jagiellonian Club published a very important article by Maciej Pach. He proposed that the tribunal judges, as in the German system, should be elected by qualified majority. The point was that a simple parliamentary majority should not suffice to shape the composition of such an important body at will, especially since almost by definition it is supposed to be a non-partisan institution.

Pach wrote: “A systemic conclusion should be drawn from the storm over the Constitutional Tribunal: change the way judges are chosen to prevent all sides from a future attempt at a ‘political assault’ on the tribunal. […] An amendment to the Constitutional Tribunal act would be a symbol of care for political culture and would protect us from further controversies similar to today’s.”

This proposal received support from across the political spectrum. Just a day after publication, the first bill to implement it was prepared by the right-wing Kukiz’15 parliamentary caucus. This was followed less than two weeks later by a similar proposed change to the constitution, supported alongside Kukiz’15 by several dozen PiS MPs, including Ryszard Terlecki, the head of the ruling party’s parliamentary caucus; Joachim Brudziński, the then deputy speaker of parliament; and Stanisław Piotrowicz himself! In early January 2016, Deputy Prime Minister Jarosław Gowin expressed his support for the plans.

Not enough? MPs from the liberal Modern party also backed the concept of qualified majority as a condition of selection of a judge. Our proposal was included in a citizens’ bill on the Constitutional Tribunal, which collected 100,000 signatures and was submitted to parliament by none other than the Committee for the Defence of Democracy (KOD), an anti-government protest group. Finally, the idea of using qualified majority voting was included in the Venice Commission’s recommendations to Poland in response to the Constitutional Tribunal dispute.

And then? As is so often the case with good ideas that have cross-party support – nothing at all. Today a simple parliamentary majority can vote in… well, exactly. Now, it seems, literally anyone.

The god of war returns

There is a reason why I began this article by noting the three lost battles that must frustrate the commander of the “good change” camp, Kaczyński, despite the victorious war. It is this very thinking of politics as a war that is the main problem we are trying to counteract at the Jagiellonian Club by proposing solutions like the qualified majority system. Such institutional mechanisms for forcing a consensus would mean looking at politics from a perspective of clashing values and interests – rather than primitive “who did what to whom” and “because we can” squabbling.

While the aforementioned three lost battles in effect give Kaczyński many reasons to be dissatisfied, he is seeking a return to those rules of the political game that he knows best and is most proficient in: whipping up conflict, managing it, and (sometimes) suppressing it at the point when he personally deems such a move to be appropriate and beneficial.

In the end, after almost every election – losses (such 2010) or victories (as in 2015), Kaczyński has abandoned his “course towards the centre ground” and returned to starting new wars according to his own rules. This tried-and-tested formula will doubtless await us this time too. There is no other way to interpret the rekindling of the dying embers of the Constitutional Tribunal conflict. The god of war has returned.

“Do you hear the the howling? Excellent!” This was one prominent PiS MP’s response to the uproar as the names of the future judges were revealed. Releasing frustrations, appreciating the most faithful,devoid of doubts, giving an immediate and painful loyalty test to “new people” and “insubordinates” – only such wartime and mafia-esque ways of thinking can explain these nominations, and, I fear, the course for the coming months. “The simple requests of soldiers, unchanged for years…”, as the late poet and singer Jacek Kaczmarski put it.

Except that this logic of war will backfire in the end. A divided society, ravaged institutions, a crisis of the authority of the political class, lack of elementary trust in the state – sooner or later, someone will decide to exploit all this. And then it will be too late – both for cross-party cooperation in the national interest and for consensual elections to constitutional organs.

Translated by Ben Koschalka and published in English on NotesFromPoland. Original Polish version is available here.