Poland pulls back

I guess if political theory was easy, everyone would be doing it. But it’s not; the world is a complicated place.

A few times in recent years I’ve criticised ceremonial heads of state – usually directly elected ones – for getting inflated ideas of their own importance and interfering with their countries’ democratic process. This week, Poland shows us the upside of that.

As I outlined last week, the Polish government (nominally led by prime minister Beata Szydło but controlled by the Law & Justice party chairman Jarosław Kaczyński) had proposed legislation to greatly restrict the independence of the judiciary. Despite public protests and international criticism, it was pushed through parliament, where Law & Justice has a majority in both houses.

But yesterday, after the weekend for consideration, president Andrzej Duda announced that he would veto two of the bills, sending them back to parliament for reconsideration.

Parliament can override the president’s veto, but this requires a three-fifths majority, which Law & Justice on its own does not have. It would need the support of the populist Kukiz’15, but the BBC, perhaps understating the case, says “that is not seen as certain.” More likely the government will try to amend the laws slightly to meet Duda’s concerns.

At least for now, though, the defenders of constitutionalism are celebrating a significant victory. Kaczyński has learned that his power is not quite as unconstrained as he might have thought.

This is surprising, not just because the Polish presidency is supposed to be mostly a formal office, like an Australian governor-general, but because Duda was elected as the Law & Justice candidate and had hitherto behaved like a loyal party functionary. Perhaps the fact that he is directly elected and might like to win a second term played a role, or perhaps something in the attack on the judiciary roused his conscience.

All sides in Poland try to present themselves as anti-communist and anti-Russian, so Kaczyński and the government had claimed the move was necessary to clean out corrupt pro-communist judges. But this became hard to maintain when the protests were led by veteran anti-communist activists, including former president and Solidarity leader Lech Wałęsa.

The strength of the reaction, both domestic and international, seems to have surprised the government. Even the US State Department expressed its concerns, despite Donald Trump’s apparent closeness to Kaczyński. It may be that the president’s action was not entirely unwelcome, giving the government an opportunity to defuse the situation with a compromise that will still achieve some of its goals.

The reality is that a president in Duda’s position can only act independently of the government if he is confident of having public support. Ultimately, as Ilya Somin puts it, “the preservation of judicial independence depends in part on majority public opinion.” That’s why a president whose political meddling comes immediately after an election (as happened in Portugal and Macedonia) is usually destined to fail.

It’s also important that heads of state, elected or not, should not feel entitled to substitute their judgement on policy questions for that of an elected government. All governments misbehave from time to time; Australian governments, for example, have done things that are morally as bad as Kaczyński’s attempt to nobble the judiciary. But I would never suggest that the governor-general should intervene to stop them.

The difference is when something becomes a constitutional question, by threatening to remove safeguards that keep the system working. Sending asylum seekers to tropical concentration camps may be morally repugnant, but it does not attack the future ability of the voters to pass judgement on the government responsible.

When a move potentially forecloses on future legal or democratic remedies, however, then extraordinary intervention may be called for. And in that case, a president with a mind of his own turns out to be a real advantage.

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