Poland – The president as legislator

On 20 November, Polish president Duda submitted another bill proposal the Sejm (lower chamber of parliament), this time aimed at creating local social services centres. Although presidents have frequently used this prerogative in the past (to the same degree as vetoes and requests for judicial review), Duda has been particularly active and proposed over two dozen separate bills so far. However, the Polish president is only one of four European presidents vested with the power to propose ordinary legislation – interestingly, the other three countries are also from Central and Eastern Europe (i.e. Hungary, Latvia, and Lithuania).

Polish president Duda presents the act amending the law on legal aid and education that resulted from his initiative, 30 July 2018 / ® Polish Presidential Office 2018

The president’s right to propose legislation has been included in all Polish constitutions since the fall of Communism, including the heavily amended Communist constitution (it was not, however, part of the Polish interwar constitutions). As the Polish president only possesses a block veto, the provision partly compensates for the lack of agenda-setting power through amendatory observations (as is the case in most other post-communist systems). Nevertheless, parliament is not obliged to consider presidential initiatives and can – once they have received by the appropriate committee – be abandoned without fearing any consequences. Furthermore, as presidents do not have any reserved policy areas for their initiatives, the usefulness of the power depends very much on the composition of parliament and government. If presidents have a majority (or at least strong presence) in parliament and/or government, bills are more likely to be accepted. Presidents without significant partisan support in other institutions should have little chance of seeing their bills become law. Accordingly, when Polish presidents made use their prerogative, they did so with varying frequency and varying degrees of success (see Table 1 below).

Interestingly, the first three Polish presidents (who all experienced longer periods of cohabitation and unified government during their terms) used their powers largely independently of the majority situation in parliament and government. For Lech Walesa, this may largely be explained by the fact that neither the fragmented Sejm, nor the stream of coalition governments had the resources to craft legislation, allowing the president to set the agenda. However, given that less than half of his initiatives were successful, actual implementation of policy can only be part of the reason why he (and his successors) used this power so frequently. On the one hand, we may be able to explain the use of initiatives by presidents’ desire to communicate with voters – more so than ‘reactive powers’ like the veto, legislative initiatives allow presidents to proactively highlight their policy preferences. On the other hand, interviews I conducted with presidential advisors in Poland for my PhD suggest that the presidential legislative initiative can be borne out of cooperation between president and government and provide a shortcut compared to regular parliamentary procedure – presidential bill proposals do not require the same statements or reports from ministries and agencies before they can be discussed (and passed) in parliament. However, the scale of these cases is difficult to ascertain without more detailed knowledge of individual bills.

To date, the use of presidential legislative initiatives outside of presidential systems has hitherto not been subject to much research. Nevertheless, the case of Poland raises a number of interesting questions that go beyond the four European cases mentioned above. First, why would presidents be vested with the power to propose legislation in the first place? Even where they are not formally part of the executive, they are not part of or emanate from the legislature either. Granting presidents proactive legislative prerogatives, particularly in systems where they are not the dominant actor, thus makes little sense. Second, how can we explain the use of this power – especially across varying partisan-political constellations? Furthermore, if bills are more likely to be accepted during friendly/unified relations between president, parliament and government, why would presidents need to propose legislation? After all, their policy preferences should already be implemented. Third, while part of the answer to the last question lies in the publicity potential of the bills, how can we reliably identify those bills that are (informal) collaborations between president and government to circumvent more lengthy parliamentary procedure? The answer to the latter would likely also reveal new information on president-government collaboration in semi-presidential and parliamentary regimes.

This post first appeared on presidential-power.com on 6 December 2018

Poland – 3 years into his presidency, Duda’s role still remains unclear

After three years in office, the position of president Andrzej Duda within the current political situation in Poland continues to be somewhat unclear – swinging between unflinching support for the governing party and legitimising force for its policies, and presenting himself as the defender of the rule of law. With a number of crucial elections coming up over the next year, the way in which he positions himself vis-a-vis the ruling party may be crucial to the success of his (former) party and, in turn, to ensuring his own re-election in 2020.

“3 Years in Office” – Promotional video on the website of the Official Website of the President – prezydent.pl

It has been varied summer for president Duda. In July, his initiative to hold a referendum on a new constitution (the date was to coincide with the centenary of the independence declaration in November) was eventually rejected by the Senate as almost all senators of his own party (Law and Justice – PiS) abstained and the oppositional Civic Platform (PO) voted against the plans. Although Duda’s motivation for the referendum was never particularly clear, the rejection can be seen as a defeat for the president – the cushioning of the rejection through mass abstentions may have been an olive branch extended to the president by the party leadership, but it could also merely have been an attempt to save face and not give the public the impression that parliament and president were actively working against each other.

A few weeks later, Duda experienced a success when he vetoed amendments to the European Parliament election law that would have effectively reduced the number of parties able to win seats to two – the governing PiS and the main opposition party PO. While the government (arguably rightfully) argued that the current system was too complicated, it is clear that it aimed to alter the rules of the game to the degree to its advantage in every possible way. Given that a 3/5 relative majority in the Polish Sejm (lower house) is needed to override the veto, the government will have to come up with a new solution or drop the bill. For Duda, the veto was in any case strategic – while he may not need to fear a strong contender from the left in his fight for re-election, his chances for re-election would be greatly increased if the smaller right-of-centre parties that swept up much of the protest vote in the most recent parliamentary elections (led among others by the surprisingly third-placed presidential candidate Andrzej Kukiz) supported him.

Nevertheless, these incidents stand in contrast to Duda’s other behaviour. After he vetoed parts of the government’s controversial judicial reform last year, he later signed bills after some cosmetic changes that gave him slightly more say in the appointment of judges. Recent events, too, highlight that he is only too happy to continue quietly notarising the changes made by the government. As part of the reforms, the mandatory retirement age for Supreme Court judges was lowered from 65 to 70, sending 40% of judges into retirement. While the legality of immediate retirement of current judges is questionable and still being considered by the European Court of Justice, Duda already announced vacancies for the positions in question. Importantly, this includes the 65 year-old president of the court who – according to the constitution – serves a six year-term that would only end in 2020. On Tuesday, the president then announced that he had approved the applications of five Supreme Court judges to remain in their positions for another three years (a new prerogative given to him) – incidentally, these are those that had previously been positively evaluated by the reconstituted National Judiciary Council and thus close to the regime (even though some of their applications apparently failed to follow conventional standards), while no action was taken on applications of others (they are assumed to be rejected, but this is not entirely clear).

In October and November 2018 Poland will hold local and regional elections, which will provide a first test for the ruling party with regard to the elections to the European Parliament in spring 2019 and the parliamentary election in 2019. It can be expected that Duda, if he is active in the campaigns at all, will support his (former) party – nevertheless, as Duda also needs to start on building momentum for his own re-election campaign, it is quite likely that we will some more occasional disagreements with the government. Such incidents should however be seen as largely strategic – until now, Duda has now shown that he substantially disagrees with the Hungary-style ‘illiberal democracy’ that the government is introducing.

This blog post first appeared on presidential-power.com on 13 September 2018.

Poland – President Duda pushes forward with constitutional referendum idea

Earlier this month, Polish president Andrzej Duda once again pushed his idea of writing a new constitution and holding a referendum to consult the population on the most important details. Although 10 & 11 November 2018 (centenary of the declaration of the Second Polish Republic) has already been announced as a potential date and Duda has said that the referendum would include ten questions, neither the content of these questions nor his exact strategic motivation for pursuing this idea are known. Furthermore, the PiS government seems to have its own plans for constitutional reform that may clash with the president’s initiative.

President Andrzej Duda (middle) attends a sitting the Polish Senate – image via wikimedia commons

Poland has one of the more complicated recent constitutional histories in comparison with other countries. Following the roundtable negotiations in 1989, the old Communist constitution was first amended in two steps (among others by creating the office of a president and laying the foundations for the first semi-democratic elections). After the drafting of a new constitution was stalled by parliamentary fragmentation and political polarisation, politicians agreed on the so-called “Small Constitution” in 1992 that set out the relations between the major institutions, yet was far from a full-fledged constitutional document. It was only in 1997 that Poland received a full new constitution that lived up to the name. Since then, there have been no major amendments that would have substantively affected the working of the political system.

The idea of a new constitution is nothing new among politicians of the ruling Law and Justice (PiS) party to which Duda belongs as well. Already in 2005, when the party campaigned on the promise of building a “4th Republic”, a new constitution was proposed but due to the lack of a constitutional majority and fragility of the government this idea was never put into practice. Given the great number of changes to the political and legal system introduced by PiS since they returned to power in late 2015 and the fact that some of these were thwarted by their incompatibility with the current constitution, it is not surprising that this idea has been reactivated. A new constitution (or major changes) would help to both legalise and legitimise the government’s controversial reforms and take wind out of the sails of its critics. Last, both in 2005 and now, the 1997 constitution has been denounced as being the work of “post-communists”, meaning that it was drafted by the Democratic Left Alliance (SLD) as the successor to the Communist party (who PiS, having originated from the Solidarity movement, naturally oppose). Thus, it is relatively clear why PiS politicians want a new constitution. However, it is not entirely clear why the president (not the government) would push this idea. While there are several potential explanations, they are not all mutually exclusive and may only together paint the full picture.

Referenda (or the promise thereof) are a staple in the populist toolbox of political leaders in Europe and beyond. Thus, Duda may simply be preparing for his re-election campaign in early/mid-2020 and use his activism to gain greater supporter among the electorate. By promising a range of 10 questions, this approach differs from that of the government, which has hitherto introduced all changes without consulting the public and rather justified its moves ex-post. Duda may also try to save the position of the presidency within the Polish institutional structure (it has been rumoured that at least one referendum question will concern this issue). The president will be keen to keep the powers of his office, whereas the government is allegedly planning a greater concentration of power in the hands of the Prime Minister (similar to the German system) after consulting with a number constitutional lawyers and academics. Nevertheless, such plans were already mooted under the governments of Donald Tusk (2007-2014) but eventually dropped due to a lack of support among MPs and the public.

The referendum could also be a way for presidency and government to test out public attitudes towards changes without endangering the re-election of the government next year or merely. However, it is difficult to ascertain to what degree they coordinate their actions. Although it is clear that president and government generally agree on the direction of further political reforms, there have been a number of public conflicts that may or may not be genuine.

Irrespective of the fact that using the procedures of a constitution that is portrayed as illegitimate to legitimise a new document is bizarre, president Duda now has to send a request to the Senate (second chamber) and ask for the referendum to be scheduled. The speaker of the Senate and the president’s plenipotentiary for the referendum have already met several times, but it appears that more negotiations need to be completed before the actual request is made. Yet even then it is difficult to predict whether a majority of the public would support any changes to the current constitution. Although the PiS government continues to be relatively popular and the president’s plenipotentiary claims that 80% of Poles want a constitutional referendum, Poles are not particularly keen on politically motivated referenda and may simply not turn up at the ballot box. The last referendum – held on request of then president Komorowski in an attempt to thwart a second-round victory in the presidential elections by Andrzej Duda – concerned the electoral system, political party financing and tax law, but turnout was just 7.8%.

This post first appeared on presidential-power.com on 24 May 2018

Poland – Is the presidency going down the Hungarian path?

Over the last years, I have chronicled (and lamented) the descent of the Hungarian presidency  during the Orbán government from promising check-and-balance into political irrelevance. After an initial phase of constructive presidential activism in which incumbent Janos Áder used his powers in an attempt to improve legislation, he subsequently failed to criticise any of the government’s controversial reforms and used his veto power and right to request judicial review on fewer and fewer occasions. Three years after the election of a Law and Justice (PiS) president and government in Poland, it appears that the Polish presidency is going down the Hungarian path. Despite the added legitimacy and independence through a direct electoral mandate, president Andrzej Duda has done little to balance the increasingly illiberal policies of the government. Although he has not remained entirely inactive, his activism is geared towards re-election and democratic window-dressing, rather than becoming a real check-and-balance.

Photo via prezydent.pl

When the 42 year-old MEP Andrzej Duda was elected president in May 2015, it was easy to portray him as little more than a puppet of PiS party leader Jaroslaw Kaczynski. After the parliamentary election in the autumn of the same year produced an absolute majority for PiS (for which Kaczynski has as of yet not taken an official seat on the front bench), Duda was complicit in the unconstitutional appointment of several judges to the Constitutional Tribunal (having previously refused to swear in judges that had been originally – and legally – appointed) and failed to step in when the government subsequently refused to publish the Tribunal’s judgement on the unconstitutionality of these actions. Up until last summer, president Duda failed to condemn any of the reforms of the Polish government, which resulted in the European Union’s decision to trigger Article 7 (a formal warning an possibility of disciplinary procedures) in December 2017.

In July 2017 president Duda vetoed two controversial judicial reforms that would have given the government near complete control over the judiciary. Nevertheless, as I argued at the time, the vetoes were little more than democratic window-dressing and inevitable due to national and international pressure after it emerged that the Senate had passed bills in different versions than the lower chamber. Duda’s vetoes caused friction with the PiS government and then Prime Minister Beata Szydlo as well as a number of other co-partisans accused him of hampering ‚improvements’ to the country’s legal system. Nevertheless, it is without question that these reforms will reappear in other forms and Duda will sign them off. The vetoes can merely be seem as an attempt to ‚save face‘ and means to appease critical voters in a bid to secure re-election in 2020.

President Duda’s signature under the so-called Holocaust bill, a law that seeks to punish those who accuse Poland or Poles of complicity in the mass extermination of jews during WWII with up to three years in prison, shows the same pattern of self-interested activism. Duda signed the bill into law but also submitted the bill to the Constitutional Tribunal at the same time. Signing the bill will appease not only the core electorate of PiS but also a the majority of Poles who rightly object to the phrase ‘Polish death camps‘ that is still frequently used to label Nazi concentration camps in occupied Poland (the country’s embassies still regularly intervene when the phrase is used in the media). Simultaneously sending the law to the Constitutional Tribunal should be seen as a signal to those voters who fear a limitation of free speech. Nevertheless, a decision from the Tribunal could take 1-2 years and with the law in force, the government can already use it to silence its critics – after the cleansing of public media from critical journalists, it becomes another tool to suppress free speech. Interestingly, the same tactic was used by president Lech Kaczynski (the twin brother of party leader and then Prime Minister Jaroslaw) during the PiS governments in 2005-2007 with the exception that the Constitutional Tribunal was not yet staffed with loyal judges (who are unlikely to pronounce the law unconstitutional).

Thus, it appears that the Polish presidency is going down the Hungarian path, albeit with some variation. As Andrzej Duda needs public support to secure his re-election in 2020 he is more active (or at least more visibly) than his Hungarian colleague. Given the greater international attention paid to the situation in Poland compared to the one in Hungary (where the EU clearly failed to step in in time) and stronger domestic opposition, Duda also needs to be active to appease international and national critics. However, overall the Polish presidency is currently failing at its job as a check-and-balance on parliament and government. An altered parliamentary composition following the 2019 legislative elections or even a second term for Duda in 2020 may change the situation, yet for now we may need to declare a ‘presidency lost‘.

This post first appeared on presidential-power.com on 15 February 2018

Presidential politics in Central and Eastern Europe – drawing lessons in the age of Trump

The election of Donald Trump may have once again focused our attention on the American president, yet studying presidential politics in Central and Eastern Europe gives us equally if not more fascinating insights, argues Philipp Köker.

 

The majority of countries in the world is now organised in some variety of a republican political system with a president at its helm. Not only since the election of Donald Trump popular and scholarly attention have focused most strongly on the president of the United States, spawning the creation of a whole discipline of ‘Presidential Studies’. In comparison, we only have a relatively poor understanding of presidential politics ‘closer to home’ – particularly in comparative perspective.

Since the fall of communism, newly and democratically elected presidents in Central and Eastern Europe have played an active role in shaping the politics of their countries. Although strong and prominent personalities, including Poland’s Lech Wałęsa and Estonia’s Lennart Meri, ascended to the highest office and thanks to their often controversial actions left an undeniable imprint on their countries’ political systems, there are also clear patterns that emerge across the region.

Most prominently, we can see a strong positive relationship between presidents’ popular election (in contrast to an indirect elections by parliament or electoral college) and their activism. Directly elected presidents have their own electoral mandate that allows them to act independently and without fear of punishment by parliament and government. At the same time, they rely on public support for re-election and thus must be more active to fulfil electoral promises.

This logic most recently played out in the case of the Polish president Andrzej Duda’s vetoes of controversial judicial reform bills. Although Duda was initially characterised as a marionette of Law and Justice party leader Jarosław Kaczyński, his personal electoral mandate meant he had the opportunity to diverge from the government and its parliamentary majority. Concurrently, he could react to public and international pressure and his vetoes thus served the purpose of appealing to a wider range of voters by in a bid to secure his re-election.

Now contrast the above example the with the silence of the – indirectly elected – Hungarian president Janos Áder on the Lex CEU or other controversial legislation introduced by the government of his co-partisan Viktor Orbán. Áder’s successor Pál Schmitt likewise failed to stand up against the widely-criticised constitution of 2011.

As my new book shows, this pattern can be observed since the creation of the new political systems in the early 1990s and office-holders perceived that they were more legitimised by a popular mandate. However, the mode of election is not the only influence on presidential activism. Irrespective of the nature of their electoral mandate, presidents across Central and Eastern Europe used their powers more often when they were in opposition to the government or exploited instable government majorities for their purposes. Interestingly enough, even the activism of presidents with ‘strong personalities’ whose behaviour has otherwise been described as idiosyncratic or erratic falls largely along those lines.

In this context it is also important to note that – despite lower levels of activism – indirectly elected presidents are not mere figureheads that can easily be equated with (nominally) a-political monarchs. They still play an active role in politics (albeit less so than their directly elected counterparts) and are a vital check-and-balance on government, parliament and the legislative process. A very current example of this is German president Steinmeier’s active management of coalition talks and public appeals to party to come together to avoid snap elections.

Naturally, patterns and associations as found in my study of presidential activism in Central and Eastern Europe are not perfect (remember for instance the refusal of Czech president Vaclav Klaus’ refusal to sign the Lisbon treaty despite being indirectly elected). Nevertheless, it appears that presidents behave similarly in similar context.

What does this all mean for the study of presidents? My study showed, among other findings, that it is possible to successfully transfer and apply approaches originally developed for the US president to the explanation of presidential activism in a country as different as Estonia. Presidents may occupy the only single-member executive office at national level, but this does not mean that they need to be studied in isolation. In fact, presidents share a number of characteristics that make them comparable and help us draw wider conclusions.

Donald Trump may dominate the news cycle, but we would do well in seeking to understand his actions from a comparative perspective. The answer may not lie in Central and Eastern Europe (although did you know that Slovakia elected a politically conservative, multi-millionaire president without previous political experience in 2014?), but studying presidential politics comparatively still holds a plethora of yet untapped insights that are worth exploring.


  • Philipp Köker is Senior Research Fellow in Politics & IR and deputy director of the Centre for European Studies at Canterbury Christ Church University.
  • The UCL European Institute will co-host the launch of Philipp’s new book ‘Presidential Activism and Veto Power in Central and Eastern Europe’ (Palgrave, 2017) UCL SSEES on 8 December 2017, 6-8pm.

This post first appeared on the UCL European Institute Blog on 6 December 2017

Presidential Activism and Veto Power in Central and Eastern Europe

This post summarises the new book by Philipp Köker ‘Presidential Activism and Veto Power in Central and Eastern Europe’ (Palgrave Macmillan, 2017). The book is the inaugural volume in the new series Palgrave Studies in Presidential Politics (edited by Robert Elgie and Gianluca Passarelli) and is based on Philipp’s PhD thesis which won the ECPR Jean Blondel PhD Prize 2016.

Presidential powers feature prominently in academic debates. Paradoxically, until now only few scholars have tried to analyse and explain how presidential actually use them. This book tries to fill this gap in the academic literature, but is also rooted in a real-life encounter with presidential activism. As an undergraduate intern in the Polish Sejm I witnessed first-hand the negotiations between President Lech Kaczyński and Gregorz Napieralski, newly elected leader of the Democratic Left Alliance (SLD), on blocking an override of the president’s veto of the media law in July 2008.The aim of this book is map and analyse such patterns in the activism of presidents and explain when and why presidents become active and use their powers. Thereby, it focuses on 9 Central and East European democracies (i.e. those that joined the EU in 2004/2007) during the period 1990-2010. Given that their political systems were created during the same, comparatively short period of time, share a common trajectory of development and were confronted with the same challenges, they are particularly suited for analysis. With regards to presidential powers, I concentrate on two of the most prominent presidential powers:

  1. the power to veto legislation and return it to parliament
  2. the appointment and censure of governments and cabinet ministers

The central argument is that presidential activism can best be explained by the institutional structure – including the mode of election – and the political environment, particularly the relative strength and level of consensus between president, parliament and government. Thereby, I argue that popular presidential elections matter fundamentally for presidential activism – directly elected presidents are agents of the public rather than parliament and lack the constraints and potential for punishment faced by their indirectly presidents elected counterparts (which challenges Tavits 2008). Furthermore, presidents should be more active when they find themselves in cohabitation with the government, when parliamentary fragmentation is high, and when the government does not hold a majority in the legislature.

To test these and additional hypotheses, my book uses a nested analysis research design (Lieberman 2005) that combines the statistical analysis of an original cross-section time series data set on the use of presidential vetoes with carefully selected case studies based on numerous elite and expert interviews in four most-different countries. The analysis of presidential activism in government formation and censure is thereby deliberately left for the qualitative analysis as there is no adequate quantitative data yet.

Patterns of Presidential Veto Use in Central and Eastern EuropeMy regression models generally confirms the majority of my hypotheses. In line with the table above, my model results clearly show that presidents used their veto power significantly more often than indirectly elected presidents. Furthermore, presidents were more active during neutral relations with the government and cohabitation and the effects of the governmental and presidential seat shares, too, showed the expected effects. Echoing findings from the study of presidential veto use in the United States, president also vetoed more frequently the more bills were passed by parliament. Based on the predictions of the statistical models, I then select 12 president-cabinet pairings in four countries (Estonia, Hungary, Poland and Slovakia) for further in-depth analysis. Thereby, I make sure to select both strong/weak and directly/indirectly elected presidents and one pairing per office holder to control for institutional variations and individual presidents.

Presidential Activism in Practice

The in-depth analysis of presidential veto use also confirms my hypotheses and provides strong evidence that the hypothesised mechanisms actually insist. In particular, the mode of presidential election emerged as one of, if not the most important factor in explaining presidential activism. The popular mandate gained through direct elections gave presidents significantly more freedom in their actions but also required them to be more active to ensure their re-election – this was not only confirmed through my interviews with high-ranking presidential advisors but also evidenced by a number of presidents’ public statements. Indirectly elected presidents on the other hand acknowledged their dependence on parliament and therefore used their powers less often as not to interfere in the work of their principal. The relationship between president and government as well as the government’s strength in parliament were equally shown to be key determinants in presidents’ decisions to use their powers. Yet the qualitative also demonstrated that the size of presidents’ support base in parliament only becomes relevant when their party participates in government or when high thresholds are needed to override a veto. In addition, the qualitative analysis suggested an additional explanatory factor for presidential activism not included in my theoretical and statistical models – divisions within and between government parties provided additional opportunities for activism and could explain vetoes under otherwise unfavourable conditions.

My analysis of presidential activism in the appointment and censure of governments then takes a more exploratory approach and covers the entire period of observation (rather than just specific president-cabinet pairings). The results show some support for existing hypotheses in the literature but also call for re-thinking the use of non-partisan cabinet ministers as a proxy for presidential involvement. In particularly, non-partisans were not only often appointed without presidential involvement, but presidents were also more actively involved in placing co-partisans in the cabinet.

Studying Presidential Activism in Central and Eastern Europe and Beyond

Presidents still belong to the group of less-studied political actors. Yet even though countries differ greatly in how much power is vested in the presidency, presidents always possess at least some power and even the least powerful presidents play an important functional and procedural role in their political systems apart from ceremonial duties. Thus, studying presidential politics has a very strong practical relevance for any republican political system.

My book shows that theoretical approaches developed for presidents in other contexts (i.e. mostly the United States) ‘travelled’ almost effortlessly to Central and Eastern Europe. Several mechanisms of effect could be observed irrespective of institutional structure, highlighting the enormous potential of ‘comparative presidential studies’ beyond national contexts. Thus, I hope that my book is – together with the work of the Presidential Power blog and the recently formed ECPR Standing Group on Presidential Politics – will help to further develop this sub-discipline of political science to the extent that it becomes en par with long-established scholarship on the presidency of the United States.

__________________________________________________
References & Notes:
Lieberman, E. S. (2005). Nested Analysis as a Mixed-method Strategy for Comparative Research. American Political Science Review, 99(3), 435–452.
Tavits, M. (2008). Presidents with Prime Ministers: Do Direct Elections Matter?. Oxford/New York: Oxford University Press.

Find out more details about the book and the new series Palgrave Studies in Presidential Politics is available on the Palgrave website.

Supplementary data for the book is available here at presidentialactivism.com/data

CCCU Expert Comment: The deterioration of Poland’s democracy

Following the announcement of Polish President Andrzej Duda to veto two bills that are part of the governments controversial plans to reform the judiciary, I wrote a brief commentary for the CCCU Expert Comment blog. You can find the whole text below:

THE DETERIORATION OF POLAND’S DEMOCRACY

Dr Philipp Köker explains that the President’s veto is unlikely to stop the deterioration of Poland’s democracy.

The Polish president, Andrzej Duda, has announced that he will veto two highly controversial bills aimed at reshaping the country’s judicial system.

At first glance, this may appear as a success for thousands of Poles who protested for weeks across the country and abroad. However, even though the president’s veto can only be overridden by a 3/5 majority in the Lower House of parliament, the veto alone is unlikely to stop the deterioration of Polish democracy.

Since taking office, the Law and Justice Party – whose leader Jarosław Kaczyński has publicly expressed his admiration for the policies of Hungarian Prime Minister Viktor Orbán – has taken it upon themselves to reshape the country’s political system by bringing state media and judiciary under their control.

Shortly after their election in 2015, their government overruled nominations for five constitutional judges that had still been made by the last parliament and later refused to publish a ruling of the Constitutional Court that demanded three of these had to be sworn in by president Duda. Yet Duda, a member of Law and Justice himself, refused.

Subsequently, the government effectively cleansed state media of critical editors and journalists who the party had long accused of biased coverage.

Since then, objective coverage and commentary has been largely absent from public channels. The reform of the judiciary, already at the heart of the party’s programme during its first government in 2005-2007, is now a further step towards an ‘illiberal state’ modelled on the Hungarian example.

One of the two bills now vetoed by the president would have given the justice minister the right to fire the heads of lower courts, while the other would have allowed the government to replace all Supreme Court judges.

President Duda has been complicit in all these changes and so far failed to provide an effective check-and-balance on the government. However, presidential action was inevitable after it emerged over the weekend that the Polish Senate had passed bills in different versions than the lower chamber. Nevertheless, the veto alone is unlikely to put a halt to the Poland’s descent into illiberalism.

The president has only temporarily halted a reform that will inevitably be implemented unless other countries stand together and oppose this attack on democracy.

The EU, which has already threatened Poland with a suspension of its voting rights, will thereby play a key role. However, individual states and their parties also have an important role to play. Although the UK is headed for Brexit, Theresa May must not be indifferent to these developments – in particular because both the Conservatives as well as the DUP have a long history of cooperation with Law and Justice in the European Parliament.

Dr Philipp Köker is Senior Research Fellow in Politics and International Relations at Canterbury Christ Church University. He is an award-winning expert on presidential politics in European democracies. His new book ‘Presidential Activism and Veto Power in Central and Eastern Europe’ has just been published with Palgrave Macmillan.

Poland – The shadow of the Smolensk air crash over Polish politics

The crash of the presidential aircraft in Smolensk on 10 April 2010, killing not only president Lech Kaczynski (Law and Justice – PiS) and his wife but also 94 other high-ranking politicians and military officials as well as the crew, is arguably the most significant moment in Polish politics during the last 25 years. PiS, controlling presidency and government since 2015, has recently ramped up its efforts to promote their questionable version of the events. Seven years on, the crash thus still casts its shadow over Polish politics and pose interesting questions regarding the developments in government and presidency.

President Duda lays wreaths at the Smolensk memorial and victims’ graves – 10 April 2017 | photo via prezydent.pl

The news of the crash in Smolensk (Russia), from where the president and other passengers were meant to drive to Katyn to commemorate the massacre of more than 20,000 Polish officers by the Soviet NKVD in 1943, put Poland in a state of shock – surpassing even the mourning in the aftermath of the death of Pope John Paul II in 2005. Contrary to the passing of the ‘Polish Pope’, however, the event divided Polish society more strongly any other issue in modern Polish history. Criticism was mainly levelled at the Polish government led by Prime Minister Donald Tusk (Civic Platform – PO) and their handling of the investigation. In particular, the conservative and traditionally russophobe part of the electorate (which moreover strongly identified with the views of PiS), were discontent with the fact that Russia was handling the primary investigation, although this was dictated by international law. This was amplified by problems reported with the identification of victims (leading to exhumations even years later) and their transport to Poland. Already then PiS politicians including Jaroslaw Kaczynski – party leader and identical twin brother of the president – openly accused Donald Tusk and his government of conspiring with then Russian Prime Minister Vladimir Putin to kill the president.

After Jaroslaw Kaczynski lost the subsequent presidential election against the government candidate and parliament speaker Bronislaw Komorowski, controversy centred on the various reports on the crash. Prosecutors concluded that the plane had descended despite adverse weather conditions and too early, colliding with a tree and breaking up. An impromptu parliamentary commission led by PiS politician Antoni Macierewicz on the other hand produced a report that claimed that the plane had been brought down by explosions, basing its conclusion on statements by several self-proclaimed experts and containing several contradictions and inconsistencies. Throughout the years following the crash, PiS also supported vigils, a grass roots movements and other initiatives such as the yearly ‘Smolensk Conference’ (whose website has a section dedicated to exposing alleged misinformation and cover-ups by the Tusk government).

The issue of Smolensk remains highly divisive, yet PiS has interpreted its victory in the 2015 parliamentary elections – preceded by the election of its candidate Andrzej Duda as president only months earlier – as a mandate to not only execute a number of highly controversial and arguably unconstitutional measures, but also to considerably increase its efforts to push their own version of the events nationally and internationally. Although formally these are promoted by Prime Minister Beata Szydlo and members of her government as well as president Duda, it is clear that they are coordinated by party leader Jaroslaw Kaczynski (who does not hold any government office himself and is not even leader of the parliamentary party). At first, the new government disabled the official website about the investigation. Later, it started to promote the widely criticised film ‘Smolensk’ which is based on the discredited explosion/assassination theory; as even diplomatic posts were used to promote it internationally, some cinemas rented for the purpose of viewings cancelled the booking as the film was seen as government propaganda. Jaroslaw Kaczynski himself has stated that the film showed ‘the truth’. In November 2016, the government opened a new investigation which included the exhumation of the president and several other victims against protests by the majority of relatives. Two weeks ago, the Polish prosecution – which like the state media has been restructured to reflect the views of the ruling party – announced they would charge two Russian air traffic controllers with deliberately causing the crash.

The activities of the Polish government regarding the Smolensk air crash are part of a wider strategy and legitimising narrative to consolidate power. Nevertheless, they have never been able to shake the appearance of a personal Vendetta by Jaroslaw Kaczynski. Therefore, and given that a majority of the Polish population is now in favour of laying the matter to rest (only ~25% consistently report to rather trust any of the conspiracy theories), it is puzzling why the government would still pursue it. Jaroslaw Kaczynski’s personal interest is surely a driving factor, yet he is also well aware that he cannot win elections with the topic (admittedly, the government has a introduced and put more effort into a number of other policies more clearly directed at gaining popular support). However, it may well be that the recent shift from the explosion-theory to accusing Russian air traffic controllers is part of a larger plan to rather mobilise anti-Russian sentiment in the Polish population (which is more promising). Another interesting point is the fact that Andrzej Duda as president, albeit supporting the PiS narrative, has not taken a more prominent role. At first glance, this may appear as a strategy to appeal to a wider electorate in the next presidential election than just PiS’ core electorate. Yet as he has so far never openly criticised the government or any of its policies, this seems unlikely. Rather, the Polish presidency under Duda (and Jaroslaw Kaczynski as the grey eminence) eerily beings to resemble developments observed in Hungary, i.e. towards a presidency as mere lapdog of the ruling party rather than an effective check-and-balance. While the once again poses the question, what use the institution then fulfils for the party in power, it is a parallel in two increasingly illiberal democracies that requires further investigation.

This post first appeared on presidential-power.com on 19 April 2017

Happy New Year? Christmas and New Year’s addresses by European presidents for 2017

This post first appeared on presidential-power.com on 11 January 2017

This post marks the third time that I have written about selected presidential Christmas and New Year’s addresses by European presidents (see 2015 and 2016 here), so that it is now becoming a tradition of its own. This year’s speeches differed only little in focus from last year, as the refugee crisis and security concerns continue to determine the public debate, yet speeches took a more political tone in a number of countries. At the same time, this year also saw some ‘firsts’ – newly-elected Estonian president, Kersti Kaljulaid, gave her first New Year’s address and Austria (for the first time in decades) had no New Year’s address at all.

Slovak president Andrej Kiska reading out his New Year´s Day Address | © prezident.sk

Presidential Christmas and New Year’s Addresses tend to be a mixture of reflections on the political and societal events of the last year and general good wishes for the festive period or the new year. While the previous year had already seen an increase in political content, this year even more presidents referred to concrete events and policies – first and foremost the terrorist attack in Berlin on 19 December 2016. German president Gauck’s Christmas message was clearly dominated by the attack, yet stressed the need for compassion, highlighted efforts by volunteers both after the Berlin attacks and in helping refugees, and called for unity over sweeping judgments. Slovak president Andrej Kiska dismissed xenophobic sentiments in his New Year’s address even more directly, acknowledging a deviation from usual end-of-year reflection and highlighting his disagreements with the government over the issue. The Slovak government has not only strongly opposed taking in any refugees, but also includes the far-right Slovak National Party (SNS) and recently passed a more restrictive church law specifically targeting Muslims (which was promptly vetoed by Kiska). Quite in contrast to these conciliatory words, Czech president Zeman used the opportunity claim a ‘clear link between the migrant wave and terrorist attacks’. In his 20-minute address – far longer than any other presidential holiday speech – from the presidential holiday residence at Lany, he also attacked the governing coalition, spoke about banning internet pornography and expressed his admiration for Donald Trump and his ‘aggressive style’.

The Christmas speech of Polish president Andrzej Duda also took an unusually political turn as it started off with much praise for government reforms. Although the Polish government, too, refused to accept refugees under the EU compromises, references to EU crises remained relatively vague. Remarkable, however, was Duda’s call to ‘respect the rules of democracy’ which was clearly aimed at the parliamentary and extra-parliamentary opposition which criticised what they in turn perceived as the unconstitutional behaviour of the governing party (see here). The address by Duda’s Croatian counterpart, Kolinda Grabar-Kitarovic, was also in remarkable as she devoted the entirety of her speech to condemning recent increases in intolerance and the simultaneous glorification of past fascist and communist regimes which she then linked to the fact that “busloads of young people are leaving the country each day” and called the government and all parties to action. Italy’s president Sergio Mattarella likewise urged parties to take action  to avoid the ‘ungovernability’ of the country, yet mostly focussed on listing the concerns of citizens and various tragic deaths rather than providing a very positive message.

Bulgarian president Rosen Plevneliev used his last New Year’s address as president to highlight more positive achievements, such as the ten year anniversary of EU accession (also mentioned by Romanian president Iohannis in his very brief seasons’ greetings), a rise in GDP and successful completion of the presidency of the Committee of Ministers of the Council of Europe. While stressing the need for further reform, President of Cyprus Nicos Anastasiades also provided a more positive message focused on the progress in the negotiations about a reunification of the island, also thanking people for their sacrifices in implementing the financial bail-out completed in 2016.

Hungarian President Ader with sign language interpreter (left); Latvian president Vejonis with his wife (right)

On a different note, Hungarians and Latvians might have been surprised to see additional faces in the recordings of presidential messages: Hungarian president Janos Ader’s speech was simultaneously interpreted into sign language by deaf model and equality activist Fanni Weisz standing in the background, whereas Latvian president Raimonds Vejonis even shared parts of the address with his wife. For those interested in ‘pomp and circumstance’, the address by Maltese president Marie-Louise Coleiro is highly recommended as the recording features a praeludium and a postludium by a military band in gala uniform inside the presidential palace (Youtube video here).

Last, for the first time in decades Austria lacked a New Year’s address by the president. Although Alexander Van der Bellen was finally elected president in early December, he will only be inaugurated on 26 January 2016. His successor, Heinz Fischer, finished his term already on 8 July 2016 and the triumvirate of parliamentary speakers (which incidentally include Van der Bellen’s unsuccessful challenger, Norbert Hofer), who are currently serving collectively as acting president, did not provide any New Year’s greetings.

_______________________________________________________________________
A full list of speeches is available for download here.

Poland – Judicial independence in jeopardy? President Duda refuses appointment of ten further judges

This post first appeared on presidential-power.com on 5 July 2016

The controversy over Poland’s constitutional court triggered by president Duda’s refusal to appoint judges nominated by the outgoing Sejm and passage of legislation to legitimise his and the new government’s behaviour has so far dominated the presidency of Andrzej Duda (for a summary see Aleks Szczerbiak’s post here). Now, Duda is once again in the line of fire following his refusal to appoint ten out of thirteen judges from lower-level courts to higher positions. Thus, although the individuals put forward by the National Judiciary Council (a committee formed of 17 judges, the minister of judges and 5 political nominees) are far from uncontroversial, the relatively unchecked power of the president in the area of judicial appointments and the government’s plan to reform the judiciary continue to be the most prominent battlefields of Polish politics today.

President Duda appoints 'his' nominee Julia Przyłębska as judge of the Constitutional Tribunal on 9 December 2015| © prezydent.pl 2015

President Duda appoints ‘his’ nominee Julia Przyłębska as judge of the Constitutional Tribunal on 9 December 2015| © prezydent.pl 2015

The Polish constitution, like so many others (irrespective of this being intentional or not), remains vague on a number of presidential duties and prerogatives. Article 179 of the 1997 Constitution thus states with regard to appointments of judges that “judges are appointed by the president on the suggestion of the National Judiciary Council” but gives no further instructions on the procedures or an eventual right of the president to refuse such nominations. Constitutional scholars widely agree that presidents may refuse the nomination of any candidate for public office (irrespective of judge, professor or prime minister) on the grounds of a person’s lack of formal and legally required qualification or reasonable doubts about their loyalty to the constitution. While this generally follows from presidents’ inaugural oath to uphold and protect the constitution, the rejection of nominees for political or personal reasons arguably has no legal basis.

Duda’s refusal to appoint the judges met with particular opposition due to the lack of justification for his decision. Before being proposed candidates for judicial promotions are vetted by the National Judicial Council; if their application is denied they can appeal the decision in court. An additional vetting by the president beyond formalities thus appears not only unreasonable but also adds the complication that there is no prescribed legal way to appeal his refusal to appoint a nominee. Many conflicts over constitutional clauses along the lines of “the president appoints/signs/etc” fall into the category of conflict between two constitutional organs and can be adjudicated by the constitutional court by the ways of a standard procedure. Yet as both the National Judicial Council and the rejected nominees lack ‘organ quality’, neither of them can easily challenge the president’s decision. The latter became clear in the only other case judicial promotions at lower courts were refused by the president. In 2007 Duda’s pre-predecessor Lech Kaczynski (the deceased twin-brother of current Law and Justice party leader Jaroslaw Kaczynski), created a precedent for Duda’s actions by declining to appoint nine judges. The nominees’ constitutional complaints were eventually rejected after four years of deliberations as the justification was that the implementation of administrative law by the president does not fall within the remit of the Constitutional Court. The Supreme Administrative Court likewise rejected the complaints and subsequent further constitutional complaints were also rejected so that the case now (still) lies with the European Court of Human Rights (for a longer summary, see the report of the Helsinki foundation here).

Newspapers have speculated on the reasons which led the president to reject the nominations. In fact, some of the nominees are far from uncontroversial. One judge was prominently accused of bribery, another judge controversially dismissed a collective law suit against the financial services provider Amber Gold (which was liquidated following the discovery that is was based on a pyramid scheme), and a third was involved in the widely discussed case of restricting the “parents’ rights” of a couple accused of violence against their children. In addition, one judge was widely criticised for continuously extending the arrest of a football fan for alleged drug-dealing, yet without any verdict being issued over the course of three and a half years. Last, one of the judges whose promotion was denied judged on a case in which Law and Justice party Jaroslaw Kaczynski leader sued fellow legislator Janusz Palikot (then Civic Platform, later founder of ‘Palikot’s Movement’) for insulting him.

None of the above-mentioned controversies would generally justify denial of appointment or other presidential intervention. Thus, it is more likely that they are part of the Law and Justice government’s plan to reform and mould the judiciary in their image. Given that Duda is generally seen as little more than a vicarious agent of Law and Justice leader and Polish politics’ grey eminence (he does not hold any government office) Jaroslaw Kaczynski, it is not unreasonable to assume that the president is now helping to fulfil that plan (while at the same time extending the powers of his office). In a recent proposal made by the government (which was already widely criticised by the Human Rights Ombudsman and NGOs), the National Judiciary Council would have to propose two candidates per vacancy thus considerably increasing the president’s power over judicial nominations. This, together with the conflict over the constitutional court and the government’s decision to once again merge the position of general prosecutor with the minister of justice (the positions were separated by the predecessor government in 2008 and unsuccessfully vetoed by president Lech Kaczynski) highlights the great importance that Law and Justice attaches to judicial reform. Nevertheless, it also shows that judicial independence in Poland might increasingly come under threat – not only, but partially due to president Duda’s activism.

_________________________________________________________________________________________________
See also my blog posts on similar conflicts over judicial appointment in Slovakia:
Slovakia – Continuing a legacy? President Kiska’s first 3 months in office and the battleground of judicial appointments
Slovakia – One year on, conflict over president’s refusal to appoint judges remains unsolved