Can Poland Repair its Constitutional Democracy? Tomás Daly Believes it Can

Poland will be showing us the endless ingenuity of constitutional thinkers who are genuinely committed to democracy in its many forms.

Tomás Daly

This episode was made in partnership with the Constitution Building Programme at International IDEA

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Tomás Daly is a Professor at Melbourne Law School and Director of the Democratic Decay & Renewal (DEM-DEC) platform at www.democratic-decay.org. His new project on ‘constitutional repair’ addresses a pressing question: how can a democracy be repaired after being deeply degraded, but not ended, during a period of anti-democratic government?

Key Highlights

• Introduction - 0:20
• What is Constitutional Repair? - 3:48
• Poland and its Constitutional Damage - 7:36
• Constitutional Repair in Poland - 20:06
• Avoiding Democratic Backsliding - 40:12

Key Links

Constitutional Repair: A Comparative Theory by Tomás Daly

Follow Tomás Daly on X @democracytalk

Learn more about International IDEA

Learn about the Constitution-Building Programme at International IDEA at Constitutionnet.org

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Transcript

In 2015 the Law and Justice Party or PiS won the parliamentary elections in Poland. The name of the party is a bit ironic, because observers argue they made every effort to weaken the rule of law in the country. For eight years, they subverted democratic norms and undermined democratic institutions. They made a specific effort to capture the judiciary, so they could largely ignore the constitution because they lacked the votes to make a new one.

However, this past year a coalition government came to power in the Polish Sejm. It was the first step toward repairing the constitutional order and reversing democratic backsliding. But the process of democratic restoration is far more complicated than many of us assume. A lot is written on democratic backsliding, but very little is written about how to repair a damaged democracy.

Tomás Daly has thought a lot about constitutional repair and democratic renewal. He is a Professor at Melbourne Law School and Director of the Democratic Decay & Renewal (DEM-DEC) platform at www.democratic-decay.org. Recently, he wrote a working paper called “Constitutional Repair: A Comparative Theory.”

I felt his work on constitutional repair provided a good framework to discuss the issues facing Poland. We provide some background on Poland, but try to focus on what the new governing coalition can do to revitalize its democracy. We also consider the dangers and pitfalls in repairing the constitutional order. It’s an important topic because an increasing number of countries have found they face similar issues and dilemmas as they turn away from populist parties.

This is the second episode in a series of podcasts on issues relating to constitutional change which is part of a partnership with the Constitution Building Programme at International IDEA. IDEA is an intergovernmental organization that supports democracy worldwide and the constitutions program conducts research and supports countries in strengthening democratic constitutions around the world. You can find more information at www.idea.int, the link is also in the show notes.

The podcast is also sponsored by the Kellogg Institute for International Studies, part of the Keough School of Global Affairs at the University of Notre Dame. The Kellogg Institute was founded by Guillermo O’Donnell, one of the giants of democratic thought, more than 40 years ago. It continues to sponsor research on democracy and human development. Check them out at Kellogg.nd.edu. You’ll find a link in the show notes to their website. If you’re interested in becoming a sponsor of the podcast, please send me an email to jkempf@democracyparadox.com.

But for now… This is my conversation with Tomás Daly…

jmk

Tom Daley, welcome to the Democracy Paradox.

Tomás Daly

Thanks for having me.

jmk

So, Tom, I've read your recent paper, working paper, “Constitutional Repair: A Comparative Theory.” I thought it was really insightful. It touched on a lot of the things that we talk about on this podcast and I think it's going to help us to really think through one of the cases within this paper, which is Poland. It's a country that we've talked about for years now. It's a country that's on many of our minds after the most recent elections where we have a chance to actually see constitutional repair in action. But before we go too far down that road, can you talk just a little bit about why constitutional repair is important? What sets that apart? Why is it that we should be thinking of constitutional repair rather than just democratic repair or repairing our democracy?

Tomás Daly

That's a great question, because I've been working on this issue of democratic decay or backsliding for years. So, with Poland as one of my focus countries alongside the likes of Hungary, Brazil, or the USA and increasingly India, we're faced with this question that for all of these types of governments that are broadly anti-democratic, even though they're democratically elected, they cause a lot of damage to the constitutional system. They're messing with courts, the legislature, independent institutions, rights, and so on. I would see that as constitutional damage, whereas you might say broader democratic damage is all those things like the way they damage trust in institutions, the way they demonize their political opponents and poison the political atmosphere, and how they leverage the changes to our information landscape in social media, disinformation and so on.

Constitutional damage for me is the sort of core institutions that get affected by this type of government. That's what I'm focused on. But what we're stuck with is how do you approach repairing the institutions and the core damage that's been caused? Can extreme measures be justified? How do you conduct repair without it looking like simple revenge against the previous government? I thought we needed a full framework to talk about these things and that's where the paper came about. But the main thing that the paper actually tries to get across is we're in uncharted territory. We're familiar with seeing transitions to democracy from full on authoritarianism. That might be communist rule or military dictatorship.

But the new paradigm is all shades of gray, so you're not talking about just a changeover of government in normal democratic times. You have extensive constitutional damage that's been caused by a previous government that was democratically elected. You don't have a rupture with democratic rule. They've damaged the system but not ended democracy. You don't have a clear space and justification for a new constitution or new institutions, but you still need to fix the damage.

So, for me, there are two possible extreme positions here. One is a new government can say we're committed small d democrats, so we can't do anything that violates the law or democratic norms. It puts them in a strait jacket and makes it very hard for them to actually achieve certain fixes that are needed.  But you could say the context really is more like a transition from authoritarianism to democracy, so anything goes in fixing the system. I think generally it's how do you tread a middle course between these two positions is where we're at: trying to stay within the law and democratic norms as much as humanly possible, but not closing the door on extreme measures if they really are necessary.

jmk

Poland is a different case from many that we think of when we think of constitutional damage. For instance, Hungary is a country where they literally rewrote the entire constitution. Most Latin American countries, when they undergo democratic decay and constitutional damage, rewrite their constitutions through methods that are a little bit dubious or questionable as to whether or not it's an entirely legitimate process. In Poland, they didn't have the support to even amend the constitution. But at the same time, it feels like there were fundamental changes to the constitutional order. So. what's your interpretation? Do you feel that in Poland that there has been constitutional damage even though the constitution fundamentally has not been changed?

Tomás Daly

Absolutely. I think Poland is just this object lesson that you can fundamentally transform the constitutional order by leaving the constitutional text itself untouched. What's really been the challenge here has been a whole load of scholars - Polish scholars like Wojciech Sadurski or Tomasz Koncewicz or Agnieszka Bień-Kacała and non-Polish scholars like Laurent Pech or myself or Tímea Drinóczi - trying to really get into the detail of what's being done and seeing how it has changed the way that power operates in the country.

In Hungary, for example, of course, they got the two thirds parliamentary majority to change the constitution and they did change the constitution very early on. They also were able to pass constitutional amendments to the new constitution so that the constitutional court couldn't refer to its previous judgments before the new constitution. But the Law and Justice Party couldn't do that in Poland. What they did instead was a number of different measures. They had this systematic disciplined, relentless campaign that involved a whole load of measures. Sadurski’s called it legislative bombardment. While they were trying to subordinate constitutional tribunal, they just kept on passing this flurry of legislation, often through fast-track procedures, so up to 40 percent during 2016.

You had laws affecting the leadership, the operation, oversight of the Supreme Court and lower courts. You have laws changing vast swathes of the leadership of civil service, how civil servants are appointed. You have laws establishing mirror bodies to supplant bodies established under the constitution like the media regulators. But it's not just law. You have this very broad-based strategy where law won't achieve it, they'll achieve it by other means. So, they did things like appointing constitutional tribunal judges in contravention of the constitution. They installed a new tribunal president early on who did things like forcing existing judges to take their holiday leave so that they'd just be removed from the equation. You have the abuse of disciplinary proceedings against judges later on.

You also have measures taken to curb the opposition in parliament. Things like expanded use of fast-tracking legislation, reducing opposition speeches to almost meaningless limits, and cutting off opposition politicians mics when necessary. What you end up with is this kind of schizophrenic constitutional order. Where the constitution of 1997 still remains untouched and still proclaims the same separation of powers, individual liberties, and judicial independence and so on, but it's mocked at every turn by actually how power has truly operated in the eight years that PiS were in power. In many ways, the way it operates is reminiscent of communist governance, but is, of course, not a replication of it because they wanted to keep as much of a democratic facade as possible.

jmk

The constitutional tribunal is fundamentally going to change now that there's a new governing coalition in power, because when PiS was in power, the role of the constitutional tribunal was to rubber stamp legislation that PiS passed. Their role, in in terms of constitutional interpretation, was to say it passed constitutional muster, even though most other constitutional scholars would have said that it would not have passed constitutional muster.

So, in many ways that role no longer exists because they're either not going to get into the fray with the new governing coalition, because if they were willing to say that just about anything past constitutional muster, they should allow the new governing coalition's legislation to pass, or they could go a different route, which is to become much more activist and to start using judicial review much more aggressively to say that legislation that the new coalition passes is not constitutional, to say that it's unconstitutional and it cannot be put into place. What direction do you think that this new constitutional tribunal is going to take? Do you think that it's going to become more activist or do you think that the fact that they were much more passive in the past might signal that they might just remain passive in the future in terms of allowing a broad range of legislation to pass?

Tomás Daly

This is a central question really for constitutional repair in Poland. Sadurski has described the journey of the tribunal under PiS. Originally, it was an activist court, I would call it just a robust court that was carrying out its constitutional role before they came into power. Then it was paralyzed for a short period while they were trying to subordinate it. Then it became a government enabler. So, you have sort of this very compromised top court. It has very little or no legitimacy across society. What's interesting is we're starting to see some assessments of its judgments over the PiS period come out in recent times, especially in the English language.

In a recent book chapter, you have the former judge of the tribunal, Lech Garlicki, writing with Marta Derlatka, say that the court coincides to a very considerable degree with the needs of the political majority, by which they mean the government. They say, since 2017, the legal position of the government hasn't been rejected in any serious case. So, you do see this court that doesn't really act like a court anymore. It's simply an enabler.

Wojciech Brzozowski in a recent book chapter also looks at their practices of interpretation and he says they didn't really come up with any new model of how they were going to act or interpret the constitution. They just combine existing methods of interpretation in any way that will produce the desired result. So, he says, it's purely instrumental and result oriented. It's all about winning. That's the way he puts it and his chapter is called whatever works. So, you basically have this court that is just doing whatever works to enable the government that put them into power, because you have to keep in mind here that this is a moving target.

They installed three unconstitutional appointed judges early on and then you have a new president installed. Then by 2018, you have a PiS appointee majority. It's only in 2021 that the final non-PiS appointee leaves the court. So, what you have now is just an entirely PiS appointed court and what we don't know is how they'll act under the new government. Because if you look at places like Argentina, there's a whole sort of scholarship on how the courts can sometimes switch. Not switch allegiance, but they will try to maintain themselves somehow in the new dispensation. I think it's just too early to tell, but I also think they are too compromised to be able to manage a switch.

Certainly, it's not going to be a switch like the U. S. Supreme Court did in the 1930s to prevent itself being attacked. I think there is just a broad consensus across the new government side of politics that this institution simply cannot continue to exist in its present form.

jmk

Do you get the sense that their interpretations are consistent? Do they have a consistent interpretation of the constitution or is it just an instrumental interpretation like you described before? Because if it is instrumental, it gives me the sense that this judiciary and not just the constitutional tribunal, but up and down the courts, is going to be a persistent threat to democracy until their terms expire.

Tomás Daly

I think the working assumption of everyone who's invested in constitutional repair in Poland is that this is an irretrievable court. This is not going to be an institution that can make a switch and start interpreting the constitution in a more defensible way. Certainly not in any way reminiscent of the pre-PiS era. I think also there are question marks over the people who were appointed. But I think a big issue here on top of everything else, which is coming up again and again is there has been a change of government, but Poland has a semi-presidential system. So, you have President Duda still in power until summer 2025 and he not only has a veto over a range of matters, which the current government doesn't have the 60 percent majority in parliament to override, but also he can transfer issues over to the constitutional tribunal.

So, you could see this kind of remnants of the PiS era working in concert to effectively just bar as much of the measures that the new government wants to enact as possible. We don't know whether that's actually going to happen. President Duda has said that he's going to be collaborative, but all of his actions have spoken very much the opposite so far. So, you're really stuck. You're stuck with what do you do to change this court?

jmk

Yeah, President Duda is an interesting figure because if I remember right, he actually vetoed some of the legislation that was passed to undermine the judiciary in Poland early on in the process. So, sometimes he's taking a stand for the rule of law within Poland and been a more moderate voice of PiS. But in many other ways, he's been just another politician that's kind of a mouthpiece for Jaroslaw Kaczyński. It's hard to say what he's going to do because again, he has taken stands against his party on occasion. It's possible that he could be what we would expect from a PiS politician, but maybe less damaging than we assume.

Tomás Daly

I think the period since the new government came into office in November has mostly pointed to a conflictual stance by President Duda. Although you can never be fully sure, because none of us are psychic. I think some of the past actions taken by the president could be as much seen as part of what Kim Scheppele calls the peacock dance that some of these governments partake in to look like they're taking things seriously while other things are being prepared in parallel. Some of the stances that might seem sort of pro-democratic in the past could be viewed through that lens, but we just don't know. All we can look at is the evidence before us since the new government took power and we're gearing up for continual conflict. That's what it looks like until something gives.

So, it could be all the way up till summer 2025 that you have a rolling constitutional crisis essentially, because there's no way the government can get rid of this president. All they can hope for is a more amenable president or a president that shares their values after the elections in 2025. So, once again, looking at it as an outsider, all of the signs point to conflict in my view.

jmk

Looking at the judiciary, what options does Poland have to repair their constitutional order? An obvious one that comes to mind would be to add more justices to the court to try to balance things out. But are there other solutions that exist as well that they can take? Are there more aggressive stances that they could take that could fix this problem or improve the situation within Poland?

Tomás Daly

When you listen to various Polish commentators and observers talking about this, there seems to be a broad consensus that because the three unconstitutionally appointed judges were unconstitutionally appointed, then it's perfectly legal to simply remove and replace them. But what you're dealing with then is that it's still a very small minority on the court. So, you wouldn't be fixing the PiS dominance on the court in that sense.

jmk

Can I ask you more about that actually? So, the three judges that were appointed illegitimately, their terms are up this next year, aren't they? They've got maybe 12 more months and then you're only changing three judges out of 15. It seems that would be not moving the needle that much and potentially damaging the constitution further without really making much of a gain. Is that your read on this too?

Tomás Daly

This is a very difficult political and constitutional calculation that you're dealing with, because if the constitutional tribunal does decide to simply be a complete veto actor, and we still don't know precisely how it is going to act because it is the early days yet, but if it does, what you're dealing with is just such a central obstacle that it might be worth it to actually do the removal and replacement. Now, for some people, they would say it was worth doing it on principle basis anyway, because they were unconstitutionally appointed. I think that might be trapping you in difficult circumstances where you might need to take extraordinary measures in other ways that would be at the very least not in line with democratic norms.

So, expanding the courts, if you are presenting yourself as completely lily white, but then you're taking other measures, I think you would have to be very careful about how you present it. Even if you're just dealing with natural turnover, I don't think it's really a solution as such. I think more than anything, it's just about articulating why you're doing it very clearly. Because in one way, you're never going to win over the PiS side of politics or their political base. Everything you do is going to be seen as illegitimate.

So, what you really need to do is be clear on why you're doing it - for the society at large, voters in general, the public in general, you've external audiences like the EU, and you also need to be mindful of posterity when you're engaging in some of these measures, because you want to have a clear articulation of why this is necessary and why other options are not on the table. In the Polish case, there aren't other options on the table. If it was a classic transition from authoritarianism to democracy, you could probably set up a new institution and start with a fresh slate. But you're not in that situation. You're not going to be getting a new constitution. You're not going to do a reset.

What you're trying to do is retrieve democratic functioning within a very compromised democratic order and retrieve judicial functioning within a compromised judicial order. That is never going to look good. But you just have to see what options are on the table. For me, what I've been thinking about is removal and placement of the so-called illegal judges, possibly a Kenya style review of individual justices to assess whether they are suited to sit on the constitutional tribunal. That assessment could include a lot of nonpolitical figures so that it doesn't simply look like a political witch hunt.

Once again, there's so many different strands to the debate in Poland right now that I haven't seen any detailed proposal that brings everything together yet. But I'm hoping to see more come out and I expect more will come out in the coming weeks and months, because this is just such a priority issue.

jmk

What's the downside to just doing nothing? I mean, waiting for the terms to expire, because in Poland, justices do have term limits. They have set terms where eventually the justice leaves the court and the Sejm, the parliament, is able to nominate a new justice to put onto the court. Why not just wait this out rather than risking damage to the institution of the judiciary long term?

Tomás Daly

Well, I think the judiciary is so damaged already, this is an area that needs almost total recess. That is not to tar every judge in Poland with the same brush. You've had a lot of resistance by Polish judges. You've had a lot of resistance in the courtroom, but also outside the courtroom. With the march of a thousand robes in January 2020, you saw them out doing a silent vigil, making themselves seen protesting what the government was doing. But the judiciary as a whole, its legitimacy, is very compromised. I think we need to be mindful about starting from any assumption that there is a high point of legitimacy that we need to be careful about. I think it is really more about what is to be lost and what is potentially to be gained.

That is a lot of what constitutional repair is about. It's making these difficult assessments about the tradeoffs. I was just chatting with Polish colleagues and we were talking about how there are hawks and doves on the constitutional repair question and some people are much more open to extraordinary measures and definitely I would see myself as a hawk, if that is the sort of binary we're working with. But I would see the tradeoff as being worth it to remove a major obstacle to repair and to start the process of rehabilitating the courts, both functionally, but also their reputation in the eyes of the public.

You know, before the PiS government came into power, one of the reasons they were able to attack the judiciary was they had a very bad reputation anyway in terms of their public perception being a very isolated elite, very sort of self-regarding and so on. It's just a question of, is it worth it? And for me, I would say it is.

jmk

So, would you say that constitutional damage really began before PiS took over? That there was damage to the institutions that was happening before the populists came to power and the populists really accelerated and exacerbated those problems that existed?

Tomás Daly

I think that's absolutely true of virtually every country in which we're seeing this type of phenomenon unfold. Democratic backsliding doesn't just come out of nowhere. Plus, what you see are issues that the electorate faces, including things like economic disadvantage, for example, or the losers from liberal or neoliberal governance. There is always a certain level of disaffection. It can be mobilized and what some people have called the way that the likes of the PiS party have gone about this is they're able to marshal a very clear political identity. There is, ‘We will help you out. There are still lots of communists in government. You are not being heard. We are going to hear you. We're going to sort you out.’

You do see that being expressed in terms of economic largesse, for example, with the economic assistance, social assistance given to families, for example, under the PiS government. But more than anything, these are parties that are willing to go where your normal democratic party is not willing to go because they construct a whole set of enemies. The political opposition being the main enemy, but you also see them then going after a whole load of minorities, women, LGBT communities, refugees, migrants, you name it because they want to create an us versus them and you really supercharge your political base and construct a political base by doing that. But you're doing it in a way that it's not open to an actual genuinely democratic political party because they won't go there.

jmk

So, one of the conundrums that I face when I think about some of the reforms that were made in Poland and in terms of trying to undergo constitutional repair is that one of the reforms that was made was to lower the retirement age of the justices. That allowed PiS to be able to eject a lot of justices wholesale and appoint a whole bunch of justices at once up and down the court system. Reversing that reform would seem counterproductive because it would allow those PiS judges to remain in office even longer potentially. I mean, I would think that you'd want to keep that reform in place, not because it's the right law or because it's the wrong law, but just because going backwards would be working against the progress that you want to make to be able to remove some of those justices.

It seems like one of many examples where once these changes have been put into place, it's almost impossible to go backwards. You have to somehow, not necessarily go forwards, but go in almost a new direction and I don't know exactly where that takes us, but just the idea that you can't just reverse those old reforms kind of boggles my mind, to be honest.

Tomás Daly

Absolutely. This is why in the paper I published in December, this working paper, I say we can't see constitutional repair as repairing a broken leg. It's just not as straightforward as that. I use the visual motif of Kintsugi, which is the Japanese art of repairing ceramics. You're trying to take the pieces, take all the damage, and repair it. By reconstituting it, pulling them together, in Kintsugi it's gold or different precious metals. So, you reconstruct the artifact, but that's an unusual thing to do. You might have to do unusual things in constitutional repair as well. What's interesting there is there have been attempts to a certain extent by the new government, the new coalition government to do a simple straightforward reversal on some issues and just reverse some of the measures taken by the PiS government.

They tried to clean house, for example, by dismissing a PiS appointed national prosecutor and a range of PiS appointees at government backed academic and social insurance bodies. But then when they got to things like trying to deal with media freedom, because this is a massive area that was affected by the PiS government - they turned public media into a government propaganda machine - the new government forcibly replaced the boards of three state funded media organizations established or stacked by PiS. They also moved to liquidate state broadcasters as well. These measures didn't stick. They were trying to put the genie back in the bottle, but they were not only declared illegal by a Warsaw court, but they've also been this central rallying cry for PiS in opposition and their supporters about maintaining a free media and democracy.

It's been a big sort of optics win for PiS in that sense and I think it's fair to say that the new government handled that issue fairly clumsily. But they don't have the PiS option of just ignoring or trying to circumvent the judgment that's been handed down. You're operating with less freedom to maneuver compared to the government that came before you, so even trying to do a straightforward reversal is extremely difficult. I think that the new government has also been criticized in the way they took this action as basically just replicating the type of tactic that PiS itself was strongly criticized for.

I think the big danger here is if you're not articulating why it's necessary very adeptly, if you're not thinking strategically, if you're not trying to think through how do we sequence this and deal with the risk assessment, you're actually just handing a gift to the anti-democratic opposition if they get into government again. Because the coalition as a whole has 53 and something percent support in the recent elections. PiS is 35%. So, they're not decimated by any stretch of the imagination. They're still a viable political force. I think you need to be thinking about these issues, but I think we have to avoid trying to expect some sort of perfect constitutional repair process by a new government.

It's already so difficult to just win elections in a very distorted electoral system. I mean, they won the elections through sheer force of organization and discipline with a ton of just wall to wall state government propaganda. So, I think we have to avoid the idea that you can plan the constitutional repair part down to its detail, but I do think more thought needs to be put in if you're going to do it effectively.

For me, maybe this is somewhere where civil society and academia comes into the frame. Maybe they can help to chew through the very difficult questions arising. But, of course, there again you look at the academic debates and you have the hawks and doves and there's no consensus on what should be done. But at least by looking at the debate, you can come up with choices. You know, more choices rather than having to simply go for the easiest targets available.

jmk

Yeah. I think you're almost underselling to how much support PiS still has. It is the largest single party within the Polish parliament. They had the option to try to form a government and the reason why they couldn't was because nobody else wanted to work with them. The ones that are the governing coalition is a coalition of center right parties, far left parties. It's really everybody except for this far right populist party.

So, you've got people that are unified on the idea that they believe in democracy within Poland and that something needs to be done to preserve it and to fight for the constitutional order once again, but there isn't necessarily a lot of agreement on the actual substantive policies of governance itself. That's going to be a big challenge for this governing coalition going forward. I mean, there's some issues that they agree on. But there's a lot of fragmentation that exists and it's going to be difficult to just even govern itself, mind you, all of these other distractions that exist in terms of trying to repair the democracy.

Tomás Daly

Governing alone is so difficult in any modern state and when you think about the exhaustion that must be there in terms of how much it took to win these elections and then how much extra complexity you have when you have a coalition government, it's really, really difficult. What you end up with and what we see in places like the U.S. as well is you still have the existing parties, but the political cleavage becomes about democracy. Yes or no. You end up with very strange bedfellows. But I think some of the lessons that Poland has for other countries and that they should learn from others as well include how the 2024 elections are shaping up in the U.S.

It is being played by many as a fundamental choice between democracy, yes or no, but one of the major issues for some people is that we're really starting to see the fruits of President Biden's refusal to tackle the court's issue because he thought court expansion was a step too far. I think he may come to regret that. We see how the court could be a key player in the coming year on everything like Trump's immunity from prosecution, his eligibility to stand as a presidential candidate, the convictions of the January 6th rioters, and that is just a reminder that with constitutional repair, we're not just talking about reform that is independent of time. There is this really strong temporal component where it's urgent, urgent, urgent to get certain fixes done because you really don't have a ton of time.

I think this is one more reason why for me, we have to be very rigorous about looking at options like natural turnover of judges or hoping that certain things will work out because there's just too much at stake. I think it is an extremely difficult challenge, but there are ways you can approach it in a better way than simply replicating the tactics of the previous government.

jmk

One big difference in the U.S. case, though, is when Trump tried to challenge the election the 2020 election, the courts, including many conservative justices on the courts, sided against Trump on those cases and conservative justices oftentimes split from one another. I mean, it happens frequently. I get the sense that it's different in Poland. I get the sense that there isn't a real sense of genuine interpretation of the constitution, but rather a more instrumental approach such as this is what we need to do to get our policies done.

I think part of the reason for that is some of the justices who are on the court were appointed directly from parliament. They come from more of a political perspective than they come from a judicial perspective. Of course, many famous American justices were appointed from politics. I mean, think of justice Warren. We think of Justice Marshall from history. But it does paint a very different picture when you're thinking of things in terms of politics throughout your life than interpreting court decisions throughout most of your life.

Tomás Daly

I think that's very true, although I wouldn't draw a hard line between the U.S. Supreme Court and the Polish Constitutional Tribunal. But definitely I would agree with you that if we're thinking about this as a spectrum, the Polish Constitutional Tribunal is a captured court. Margaret Atwood in The Handmaid's Tale uses the term unwomen against certain women in the novel. I see these courts as uncourts. They don't do anything that you would want a court to do. They're not independent of the partisan struggle. They don't have rigor in terms of how they approach their decision making and interpretation. In that sense, you know, the Constitutional Tribunal is far down the spectrum from the U.S. Supreme Court.

But the U.S. Supreme Court is traveling along that spectrum, in my view, and has traveled quite a far way along that spectrum compared to where it once was, although there's always detractors. Some people will always say courts are making it up depending on what they ate for breakfast. But I think when you look at the detail, you can see a difference. There is still this strong qualitative difference in decision making on the Polish tribunal versus the U.S. Supreme Court, for sure.

jmk

So as Poland looks to be able to do constitutional repair, the reforms that have been discussed that I've heard discussed, things like adding additional justices to the constitutional tribunal, feels a lot like a bandaid. It's not really a permanent solution. If this problem happens again, the new justices aren't going to fix it. The new populist government would just appoint new justices to replace them, especially as their terms expire. So, what can a country like Poland do to avoid democratic backsliding, to avoid constitutional damage in the future?

Tomás Daly

It's really important when you consider repair, when I'm thinking about repair, it's really the most immediate priority fixes, which in some cases might just be band aids. I completely agree with you. So, the US scholar, Jack Balkin divides it out into three different questions. One is repair. What are the short run fixes? The other is a reform. How are you going to reform the system? It might be through constitutional amendment. It might be through different means to reform institutions. Then the third one for him is maintenance. How can we shore up or even create new institutions? When you're thinking about Poland some of the things that crop up are things like how the courts operate.

One of the biggest issues with Poland is that with concentrated constitutional review, where only one court can do it, you're leaving one institution as the only institution that has to be captured. One of the calls during the PiS government's time in office was by Tomasz Koncewicz who was calling on lower courts to take up the baton and actually engage in constitutional review. The bigger version of that is whether you could switch the system to a more decentralized review where all courts or more courts have a role in constitutional adjudication. Of course, that would require a constitutional amendment, which is not really on the cards for the current government. But as a thought exercise, when you're trying to think about democratic resilience, it is a big question.

There's also how parliament operates. So, could you make fast tracking certain types of legislation more difficult, for example, if it deals with the courts or with rights? There's a new report by International Idea on Democratic Resilience. They look at things like Denmark’s system where a minority of parliamentarians can actually force a delay of one year on legislation affecting rights. So, things like that to kind of think about. How do you protect the core of the system? Then other things like, once again, having a more broad-based system, you were left under the PiS dispensation with one institution being the only truly independent institution left, which was the ombudsman, Adam Bodnar, who's now the justice minister. He was extremely active in terms of resisting to the furthest extent of his powers the measures being taken.

But there's a whole new literature on what we call fourth branch or guarantor institutions, things like the ombudsman or human rights commissions, or integrity agencies and so on. The question there is, do you possibly add more of them into the system so that any one of them could be activated as the site of resistance in the possible sort of reemergence of a PiS or PiS type government in the future?

A much bigger question that I don't go into at all are things like, when you have a political environment so poisoned, do you have to start thinking about much further down the line with some form of reconciliation process? Not exactly like what you had in the likes of South Africa, but how do you stitch the democratic community back together? Does that require some action by government actors, not just hoping that the society and culture will take care of that themselves and take the lead. These are major, major questions. But I think Poland is not alone in terms of what this looks like for the big questions and the big possibilities.

jmk

If you make it more difficult for democratic backsliding or constitutional damage to happen in the future, do you worry that it'll be more difficult to repair the constitution or to reverse democratic backsliding in the future as well?

Tomás Daly

I think that once again, that's always a risk. It's just that you're working on limited information and you're trying to think none of us is omniscient. I think we're just trying to work on the best models and information that we have. I think this is one more reason why I wrote this paper. We're working on outdated models or models that don't serve us. Especially if you approach this from the point of view that this is akin to major political reform in a broadly functioning democracy, you're missing out on a whole slice of what's actually at stake and the actual dynamics of what you're dealing with. Similarly, if you treat it as broadly, similar to a transition to democracy from authoritarianism, you're going to simplify and distort the actual dynamics of what you're dealing with.

So, a lot of it for me is we have to be evidence based, of course. We have to pull together the best evidence we have. We have to have very robust discussions about it that's inclusive. But ultimately, we cannot know all eventualities and you're never going to have, and I think they say this in the International Idea Report, a backsliding proof system, a backsliding proof constitution. But what you can have is a backsliding resistant constitution. I think the harder you make it for an anti-democratic government to capture institutions, the harder you make it for them to enact laws without any sort of consultation whatsoever, hopefully you're getting somewhere that is more resistant.

I think the biggest risk on top of that is you don't want to paralyze system where government becomes less effective because one of the feeders of democratic decay and backsliding is people want effective government. Sometimes the view is that they haven't really been getting it. So very difficult plus changing our models is one of the real challenges here. If I can just make a very quick plug, I set up a working paper series on democratic decay and renewal, DemDec, which is this online research platform that I've been running for years. I really welcome submissions from people about these questions, especially about Poland, because I think we really need to have a very robust and full discussion about these issues because we just can't get anywhere without really airing this fully.

jmk

So, we've been talking about Poland because in many ways it's a unique case. It's one that we've been talking about in democratic circles for years now. Thinking about the problems of backsliding within Poland and now thinking about how to reverse that backsliding, how do you go about constitutional repair? Should we be thinking about Poland as a unique case or is this an example that other countries can be able to see parallels with? Is this an example that other countries can learn from?

Tomás Daly

I think absolutely Poland can provide lessons to many countries around the world. I mean, that is one of the reasons I wrote a comparative analysis to see what are some of the resonances. They're all unhappy in their own way. But what are the resonances and the insights that you can get from one system that can be helpful in another. Certainly, you see some of the discussion from the debate on court packing in the US Supreme Court is helpful when you're considering court expansion. In Poland, some of the discussions about what is the place of Fourth branch institutions in democratic resilience or being backsliding resistant can be useful to a range of countries. Things like what are the perils of having concentrated constitutional review, which has been considered the gold standard for decades. Poland shows us the perils of that.

But Poland will also be showing us the endless ingenuity of constitutional thinkers who are genuinely committed to democracy in its many forms. That's one more thing we have to have our eye on. You have this Extremely excellent scholarship coming from Poland and extremely adept and innovative constitutional thinking. The more we can surface that and connect it to what is being thought about elsewhere, I think the better. For me, it's often getting back down to practicalities like, of course, we have language barriers, but how do we mitigate them? How do we bring people together? How do we translate what needs to be translated? So, I think Poland will be a lesson for many countries around the world, both the negative challenges and positive possibilities.

jmk

Well, Tom, thank you so much for joining me once again. I want to plug the paper that you wrote one more time. It's called “Constitutional Repair: Comparative Theory.” Where can we find it again?

Tomás Daly

So, it's at DemDec, which is Democratic Decay and Renewal. It's www.democratic-decay.org and it's usually really easy to find. If you just google DemDec and constitutional repair, you'll probably find it. You'll also find it pinned to my Twitter, sorry, X account, which is @democracytalk.

jmk

Well, that's great. Tom, thank you so much for writing that. Thank you for joining me today. I also want to thank International Idea for helping connect us and for partnering to help produce this episode. So, thank you so much once again.

Tomás Daly

Thank you. Delighted to be on your podcast. I'm a listener as well as a participant.