Poland's government taking one more step toward a Supreme Court overhaul that opponents contend would remove its independence. The proposal would remove current members of the Supreme Court, except those chosen by the justice minister, and grant the governing party power over future ­appointments. (Reuters)

Major news outlets have erupted in recent days over protests in Poland to defend the independence of the nation’s judiciary.

During its last session before breaking for summer vacation, the Polish parliament (first the lower house, the Sejm; then on July 21, the Senate) approved legislation to drastically change the composition and functioning of Poland’s Supreme Court. The ruling Law and Justice party (PiS) had the votes to push the measures through. President Andrzej Duda has three weeks to sign the bill or veto it. Although he has noted some inconsistencies in two articles of the bill, he may still sign the bill into law, pending the resolution of these issues.

Courts in Poland follow a complex hierarchy — from local to district courts and then to the Supreme Court — and there is a separate Constitutional Tribunal for resolving constitutional questions. This complexity may make it hard to see how the dismantling of the Supreme Court is particularly dangerous for democracy in Poland.

Control of the Supreme Court plays into the PiS agenda

The Friday legislative vote makes some stark moves:

  • The justice minister will now have discretion over which Supreme Court judges remain in office and who is forced into retirement.
  • Effectively, this reduces the number of judges from 87 to 31 (technically, the number is 43, but 12 will sit on a newly created “disciplinary department,” so there will be 31 judges doing the work of 87)
  • The qualification for holding a high court seat was lowered, with a minimum of just 12 years of experience required for a position on a regional court.

But here’s the crowning blow in ending the independence of the judiciary in Poland: Since the justice minister simultaneously holds the position of prosecutor general, the ruling majority may now choose both the prosecutor AND the judge in every single court case.

These excerpts of the bill alone violate at least two articles of the constitution (181 and 182), but as I describe in a previous Monkey Cage post, PiS already has the Constitutional Tribunal under its thumb, so the measure is unlikely to be struck down.

Here are five potential reasons that taking over the Supreme Court is just what PiS leader Jarosław Kaczynski needs to consolidate power — and why the measure was kept hidden until last Friday.

 1. Boosting PiS representation in the Sejm will give the party a constitutional majority

The 1997 Polish constitution makes the Supreme Court responsible for determining the validity of all nationwide referendums, as well as elections to the Sejm and the Senate. If the results of the next election come under dispute, the Supreme Court would be called to rule on the matter.

But why push the bill through two years ahead of the scheduled 2019 elections? The term “scheduled” elections is key here. PiS has a majority in the Sejm and can dissolve parliament and hold early elections. It stands a chance of winning two-thirds of the seats in the Sejm — this would give the party the supermajority required to amend the constitution.

In fact, fall 2017 could be ideal for calling an early election. President Trump’s visit to Poland this month significantly bolstered PiS’s support. Recent opinion polls show a 4 percent bump for the ruling party over the previous month, and a 1 percent jump between July 7 and 20. Of course, PiS could call an early election before overhauling the Supreme Court, but lacking a tight grip on the sanctioning body, it would risk repeating British Prime Minister Theresa May’s failed gamble earlier this year. Now, the Supreme Court could invalidate elections they lose.

2. Annulling the prison sentence of a close ally

The second reason is more private. In a 2015 case, a regional court sentenced Mariusz Kaminski, a close associate of Kaczynski and former head of the Central Anticorruption Bureau, to three years in prison for abuses of power. In November 2015, within days of assuming office, the president pardoned him. But the Supreme Court annulled the pardon in March 2017. Barring a reversal, Kaminski will go to prison.

3. Settling accounts with former prime minister Donald Tusk

An only slightly less personal reason involves Donald Tusk, a former Polish prime minister and the current president of the European Council. Kaczynski wants the State Tribunal to put Tusk on trial. This special judiciary body assesses the constitutional liability of people holding the highest state rank. This process could result in criminal punishment and a loss of civil rights. The chief justice of the Supreme Court serves, ex officio, as the justice presiding over the state tribunal.

What is Tusk’s alleged crime? Kaczynski has accused the opposition of killing his twin brother, Lech, who was Poland’s president at the time, in an April 2010 plane crash.

4. Bringing the lower courts in line with the ruling majority

A fourth possibility involves a peculiarity of the Polish constitution (article 178) that allows lower-level courts to interpret the constitution when the Constitutional Tribunal is incapable of doing so. Article 178 puts PiS’s plans for passing unconstitutional legislation in jeopardy (an example of such legislation is introducing term limits for mayors and governors, which would help PiS win subnational elections in cities — strongholds of the Civic Platform, Poland’s main opposition grouping — and small rural boroughs — strongholds of the Polish Peasant Party). PiS is clearly not in a position replace judges in every single court entitled to rule on the basis of article 178.

Here’s the workaround: If you can’t change the judges themselves, then try to influence their incentives. Since the Supreme Court serves as the court of appeal for lower-level decisions, any judge interpreting the constitution at odds with PiS would risk having the decision reversed. Since frequent reversals undermine judicial careers, few lower-court judges are likely to choose this path.

5. Bankrupting the opposition

The last possibility comes straight from the dictator’s handbook. In contrast to the U.S. system, where private donations fund electoral campaigns, Poland has public financing of electoral campaigns and political parties, and reimburses parties for their expenses once their vote share exceeds 3 percent.

A Supreme Court task is to review reports from parties seeking reimbursement for electoral expenditures. Hence, Supreme Court judges could deny compensation to applicants whose books are deemed “out of order.” If the Supreme Court were to reject accounts from parties in the opposition, this would be a “slow-bleed” strategy to bankrupt the opposition and eliminate electoral competition.

This last incentive is potentially the most dangerous, because it is the one that is hardest to notice. Indeed, democracy dies in darkness.

Monika Nalepa is an associate professor of political science at the University of Chicago. She is grateful for the input and assistance from Paweł Piwowar, vice president of the Alumni Association at the Law and Administration Department of the University of Warsaw.