By Stanley Bill
Two days ago President Andrzej Duda astonished both politicians and pundits by vetoing 2 of 3 controversial judicial reform acts proposed by the Polish government. In his justification, Duda indirectly attacked the Justice Minister – who is also the Public Prosecutor General – for attempting to acquire undue influence over the judicial system. Inspired by the advice of veteran “Solidarity” campaigner Zofia Romaszewska, Duda argued that “in the Polish constitution and in the Polish constitutional system the Public Prosecutor General has never had any supervision over the Supreme Court.” In a possible clue to a more personal motivation, he also expressed his disappointment that he had not been consulted – presumably by the Justice Ministry – during the preparation of the bill.
President Duda’s double veto is perhaps the boldest presidential act against his own party of the post-1989 period. Though he deserved criticism for allowing the government to hobble the Constitutional Tribunal in 2015-16, the negative characterization of Duda as the “pen” of the government has always been slightly unfair – at least on a comparative basis – as the supposedly neutral post of the president has been entangled with party politics since 1989. Most significantly, presidents have tended not to veto legislation when their own party has been in government. In other words, Poland’s presidents have always been “pens” for their own parties, while vetoes have generally been reserved for political opponents.
Lech Wałęsa is the record holder, with 27 vetoes over 1 term in office, as he attempted to assert his own independent authority over the parliament. Former communist Aleksander Kwaśniewski vetoed 34 bills altogether over 2 terms in office, but only 6 while his own party (SLD) was in government. Lech Kaczyński vetoed 18 bills over 1 interrupted term, but only 1 during the short-lived PiS coalition government of 2005-07. The entirety of Bronisław Komorowski’s term in office coincided with his party (PO)’s time in government, so he only vetoed 4 bills in 5 years (though he also sent 11 to the Constitutional Tribunal for consideration). Most importantly, bills vetoed by presidents against their own parties have been marginal in political significance (for instance, Komorowski vetoed a bill on a new aviation academy and Kwaśniewski sent back a bill on biofuels).
Not only has Andrzej Duda already vetoed 3 bills from his own party in only 2 years in office (plus 4 during the term of the previous government), but the last 2 of these – the bills at the center of the storm over judicial reform – were significantly more important to his own grouping than anything vetoed by previous presidents. Even Kwaśniewski did not reject key legislation, though he had a much stronger independent position within his party and sometimes came into open conflict with its other leaders. President Duda has effectively stymied one of the flagship reform projects of the current government, standing up to PiS party chairman Jarosław Kaczyński and humiliating the Justice Minister Zbigniew Ziobro.
Of course, there are several caveats to these comparisons. First of all, one might argue that Duda has simply had more motivation to break party loyalty than previous presidents. The government was attempting to implement a dubious transformation of the separation of powers, while street protests and international condemnation imposed further pressure. Admittedly, these factors did not stop Duda from approving the government’s earlier attack on the Constitutional Tribunal, but the cumulative effect might ultimately have told (some commentators also point to Duda’s alleged resentment at increased marginalization by the party and Kaczyński). In short, the government’s legislative agenda has been so constitutionally adventurous that it might have warranted a few more vetoes from the president.
Secondly, it remains unclear exactly what has happened behind the scenes. It is not impossible that Duda’s move has allowed for a temporary climb-down for PiS in a moment of increased pressure both at home and abroad. Indeed, I would argue that – whether or not the leadership believes this to be the case – the vetoes were absolutely in the party’s interest, as the situation was rapidly spinning out of control. Nevertheless, judging by the reactions of various prominent party members, it appears that Duda’s decision was a genuine and unwelcome surprise. Jarosław Kaczyński has not yet commented. The president has promised to produce his own versions of the bills in the near future. These documents will give a clearer idea of exactly where he stands on judicial reform.
Duda’s broader credentials as a stern defender of the Polish constitution remain questionable. He is still the president who allowed PiS to take over the Constitutional Tribunal. Moreover, he has signed the first of the three recent judicial reform bills, giving the Justice Minister more power to control provincial courts, district courts and courts of appeal. In general, Duda’s position with respect to his party has been weak, but his vetoes have changed the current game in ways that leave the future unpredictable. This is a very significant moment for both the president and the government.
As always in politics, a healthy suspicion is obligatory, but President Duda deserves praise for what looks – at least for now – like a courageous and principled stand against those who launched his political career. History tells us that Polish presidents have rarely turned against their own parties, and certainly not in such a key questions. On July 24, Andrzej Duda looked independently presidential.