WARSAW — For much of his time in office, Polish President Andrzej Duda has been jokingly referred to by his critics as the house “notary” for the governing Law and Justice party (PiS).
Despite his nominally institutional role — as a guarantor of the constitution, above the fray of daily politics — Duda has, with just one exception, signed into law every piece of legislation the parliament sent his way.
On Monday morning, he suddenly changed course, surprising even his closest associates by rejecting two controversial laws designed to put the Polish judiciary under PiS control.
Given that controversial legislation, adopted by parliament at lightning speed in the early morning hours, has regularly sailed past his desk with hardly a moment of reflection, Duda’s decision to take a stand came as a shock to the political establishment.
The laws were intended by PiS to cement its hold on power, putting one of Poland’s last institutional checks firmly under the party’s control. Instead, in Duda, it confronted an unexpected new power with which it will have to negotiate.
The laws he struck down would have dissolved the Supreme Court and the National Judiciary Council, which is responsible for appointing judges — allowing PiS to seize control over the nominations of the country’s judges and hand-pick candidates. On Tuesday he signed a third law, giving the justice minister the power to dismiss and nominate the presidents of Polish regional and appeal courts.
Jarosław Kaczyński, who as PiS party leader is the most powerful man in the country, was silent throughout the day.
“The president slowed us down but we won’t surrender and will realize our program” — Polish Prime Minister Beata Szydło
Others in the party vowed to press on over Duda’s opposition and try to override the vetoes, arguing that the proposed legislation had been part of his electoral program. This act of presidential defiance takes Duda probably to the point of no return in the PiS fold, introducing an unexpected element in Polish politics that will play out between now and the next presidential election in three years.
“You may consider this veto story as a fairy tale,” Justice Minister Zbigniew Ziobro, an old Duda foe and the architect of the rejected reforms, told reporters, sarcastically.
One of Ziobro’s deputies wrote on Facebook that the president was “soft in the fight for the final defeat of post-communism.” The ruling party came back to power by promising to clean out a system it says was corrupted by former communists and their allies in a flawed transition since the introduction of democracy in 1989.
PiS parliamentary leader Ryszard Terlecki told journalists that “we are concerned that the system which is defending itself so hysterically received a temporary reprieve from Mr. President’s decision. But I think we can handle it.”
The assault on Duda culminated in a televised primetime statement by Prime Minister Beata Szydło. “The president slowed us down but we won’t surrender and will realize our program,” she said.
Good of the nation
Tens of thousands of Poles had protested the laws, taking to the streets to call for Duda to wield his veto pen. Few expected him to actually break with Kaczyński.
The decision marks the first time Duda has stood up to Kaczyński since December 2014, when the grizzled party leader pulled the then MEP out of political irrelevance and nominated him PiS’ candidate for the presidency.
It also follows a long period in which PiS has moved aggressively to gain control over the country’s institutions. The party won the 2015 election on a populist ticket promising “good change” — a package of sweeping reforms aimed at increasing the power of the state, widening the reach of the welfare state and removing the elites that Kaczyński alleged were perpetuating the “post-communist setup.”
The government quickly dismantled the country’s respected civil service, put public media under party control and abolished the independence of the prosecutor general, handing the position’s powers to the justice minister.
PiS also started to subordinate the constitutional tribunal, which has the power to invalidate laws it considers unconstitutional. The first shot was fired by Duda himself, who refused to swear in three judges elected by the previous parliament, a move that his critics called a breach of the constitution.
Parliament also passed — with Duda’s blessing — a law making it impossible for the tribunal to operate normally, putting onerous requirements on any decision it made. And when the tribunal itself declared the move unconstitutional, Prime Minister Szydło simply refused to publish the verdict, making it de facto non-binding.
Duda’s decision makes it harder for him to stand again in 2020 as a PiS candidate, opening the possibility that he will attempt to form a rival party.
The most recent assault involved the nomination of a new tribunal chairperson, nominated in breach of the rules. The Supreme Court will decide in September on the legality of the nomination, which may explain why PiS was in such a hurry to send all its judges into retirement.
PiS’ attitude toward the rule of law might have best been expressed in the words of the veteran anti-communist Kornel Morawiecki, who in an address to parliament said: “The law is an important thing, but the law is not a sanctity. Above the law is the good of the nation.” To a lengthy standing ovation from PiS deputies, he said: “If the law interferes in this good, we cannot consider it as something which cannot be breached and changed.”
Duda’s about-face is an acknowledgment of the power of Polish protesters. The president’s spokesman Krzysztof Łapiński confirmed the influence of the shouting crowds on his decision: “The president took under consideration the legal analysis that he was provided with, but he cannot pretend that these demonstrations do not exist.”
There are other reasons that Duda may have declined to provide his signature. After he announced he would veto the laws, demonstrators gathered once again in large numbers outside his palace. They jokingly applauded the better-late-than-never “inauguration of the president,” and called for Duda to veto the third law in the package — an appeal he declined to listen to.
When announcing his vetoes, Duda did not address the most controversial aspects of the law, citing instead the fact that the legislation would have given the justice minister — who is also the prosecutor general — the power to decide who can be a Supreme Court judge.
This may be an indication that Duda’s actions were motivated by his rivalry with Ziobro. The president was not consulted or informed before the law targeting the Supreme Court was introduced in parliament, and had later called for changes to the law regarding the National Judiciary Council.
His behavior also betrayed anger that the legislation gave the justice minister the sole authority to decide which Supreme Court judges would be allowed to stay. PiS proposed a compromise amendment, giving him the power to nominate judges that had been previously selected for him by Ziobro. But evidently, it was not enough.
Duda’s decision makes it harder for him to stand again in 2020 as a PiS candidate, opening the possibility that he will attempt to form a rival party. In the meantime, it has upended Poland’s political landscape.
Not only does the country once again have an active political opposition, including thousands of young people who until now have been largely politically indifferent; for the first time in two years, there is no longer a single party in firm control of the legislative process.
The ruling party’s notary may have discovered he’s more powerful when he puts his pen down.
Michał Broniatowski, a contributing editor, edits POLITICO‘s Polish-language vertical on onet.pl.