The “nuclear option.”
An attack on Poland’s sovereignty.
Punishment for the government’s anti-refugee stance.
The preface for “Polexit.”
These are just some media descriptions of the European Commission’s decision to trigger Article 7 of the Treaty of the European Union against Poland. The use of Article 7, for the first time in EC history, came in response to “a clear risk of a serious breach of the rule of law in Poland” over changes that the EC believed threatened judicial independence. This surprising decision has led to some misunderstandings. The EU’s reaction is a direct consequence of two years of Polish government policies that have damaged the rule of law.
At the end of 2015, the Law and Justice Party (PiS) led by Jaroslaw Kaczynski won the parliamentary elections, after succeeding in the presidential elections a few months earlier. PiS gained 37 percent of the vote (by promising strong economic populism and statism) and captured a parliamentary majority, but the party never achieved a constitutional supermajority. Many of its policies have been unconstitutional attempts to change or circumvent the Polish Constitution. Even without any criticism by the European Union or foreign institutions, this is something that should be opposed by Polish civil society as a violation of the principle of justice – something, as we shall see, that was spoken of by Pope John Paul II.
A sequence of policies and government decisions fueled domestic protests inside Poland and triggered a backlash abroad.
First, the ruling party nominated extra judges to the Constitutional Tribunal in an unconstitutional way and blocked the tribunal’s activity until it took full political control of the institution at the end of 2016. Now, the government can rubber-stamp its policies in the Constitutional Tribunal, raising the risk of implementing other unconstitutional legislation in the future.
All these legal changes infringe upon the independence of the judicial system and encroach upon Polish citizens’ fundamental right to justice.
Second, the law on the Ordinary Courts Organization empowered the Minister of Justice (who is at the same time the Prosecutor General, a deputy, and a political party leader) to dismiss heads of courts in an arbitrary way and appoint their successors without binding consultation with the National Council of the Judiciary – something that had been required in the past. Together with the introduction of a different retirement age for female judges (60 years) versus male judges (65 years), it stimulated the European Commission’s decision to refer the Polish government to the European Court of Justice.
Third, the ruling party implemented the laws on the National Council of the Judiciary and on the Supreme Court. The law on the Supreme Court lowers the retirement age so some judges, including the president of the court, will automatically be replaced. The government also introduced an extraordinary appeals procedure that gives it the power to reopen final judgments taken many years ago, undermining the certainty and finality of the law.
The law on the National Council of the Judiciary enables the ruling party to control the composition of an institution, which was designed to protect courts and judges from politicians. The previous model, in which the majority of judges were selected by their peers, was an important achievement of Poland’s transformation, insulating the courts from the political interference typical of its Communist past.
These two controversial laws stimulated protests in Poland last summer and prompted international reaction. For instance, the U.S. State Department wrote that “the Polish government has continued to pursue legislation that appears to undermine judicial independence and weaken the rule of law in Poland.” The amended versions of these laws are equally harmful.
The changes proposed by the Polish ruling party “have a striking resemblance with the institutions which existed in the Soviet Union and its satellites,” despite the government's anti-communist rhetoric.
All these legal changes infringe upon the independence of the judicial system and encroach upon Polish citizens’ fundamental right to justice. As Pope John Paul II wrote in Centesimus Annus, in government “it is preferable that each power be balanced by other powers and by other spheres of responsibility which keep it within proper bounds. This is the principle of the ‘rule of law,’ in which the law is sovereign, and not the arbitrary will of individuals.” The Law and Justice Party’s policies shift all powers under the control of the arbitrary decisions of the ruling party's leadership. As a respected advisory body of the Council of Europe, the Venice Commission, emphasized in its opinion on the matter, the changes proposed by the government “have a striking resemblance with the institutions which existed in the Soviet Union and its satellites,” despite the party's anti-communist rhetoric.
The list of international observers that criticized the new laws is longer than the EU and U.S. State Department, encompassing many other international organizations, foreign media, NGOs, lawyers, and experts in other fields the world over. Last July, I took part in the U.S. Helsinki Commission briefing about democracy in Central and Eastern Europe to explain why weakening the rule of law is the biggest challenge to democracy in Poland.
What is even more important is domestic opposition inside Poland, expressed through street protests, analysis, and public statements. My own organization, the Civil Development Forum, joined more than 50 groups working in different fields – like the Helsinki Foundation for Human Rights, Amnesty International, Greenpeace, and the Warsaw Club of Catholic Intelligentsia – in signing an open letter to President Andrzej Duda with an appeal “to protect the Polish Constitution and the rule of law which it guarantees.” We need more of these coordinated activities in the years to come, among groups and individual who may disagree about many things but share a common conviction that the rule of law is essential for sound democracy and economic growth.
Poland is often compared to Hungary under Victor Orbán. I personally wrote about the Orbanization of Polish politics two years before the Law and Justice took power. In Hungary, Orbán won a supermajority in the parliament and, by changing the constitution, consolidated his powers, while speaking about so-called “illiberal democracy.” Today, PiS leader Jaroslaw Kaczynski, who has never won a constitutional majority, follows Orbán’s path - a harmful path for the Polish economy, the rule of law, and democracy. Victor Orbán’s support for the Polish government is now the key to block any further steps mentioned in Article 7, as some of them require unanimous support.
But even without these steps, the Polish government’s role in the EU will be marginalized. Undermining the Polish position in the EU is bad foreign policy, weakening our influence on EU rules and future reforms. But most importantly, the Polish government’s policies are bad for Poland. Brussels will not do the job that Poles – including civil society, NGOs, opposition parties, entrepreneurs, lawyers, academics, and others – must do to defend the rule of law and the myriad of freedoms that are endangered when the rule of law is dismantled.
(Photo credit: Spens03. This photo has been cropped. CC BY-SA 3.0.)