This article is a response to Marek Tatała's essay, which you may read here. -- Ed.
Last month, the European Union took the first steps to invoke Article 7 of its constitution to punish Poland – but critics disagree about the underlying issue: to what extent the actions of the Polish government’s ruling Law and Justice (PiS) Party undermine judicial independence and merit international condemnation.
During the last month, both sides of the Atlantic have published a wave of articles about an alleged political crisis within Poland – particularly in anglophone outlets like the New York Times, The Washington Post, and so on. Many of the articles describing the current political situation in Poland present it from only the secular-progressive viewpoint and, thus, are already highly critical of PiS on other grounds, before condemning the judicial legislation.
Marek Tatała, the vice president and economist at the Civil Development Forum (FOR Foundation), condemned the ruling party’s judicial actions in an essay which he wrote for the Acton Institute’s Religion & Liberty Transatlantic website. Tatała criticized the present Polish government for implementing “policies that have damaged the rule of law.” This problem is complex and requires a deeper analysis. In the present article, I will focus on the background of recent political changes in Poland, which are often forgotten by the commentators. Ordo Iuris, a Polish conservative and pro-life think tank, prepared a complete legal analysis of the judicial appointment problem, which may be consulted here, or readers may appreciate a shorter piece by Sławomir Dębski, which is accessible here.
In 2015, the Law and Justice Party (Prawo i Sprawiedliwość, or PiS) won the parliamentary elections. PiS was the first party after the fall of communism in Poland to win the majority of seats in the parliament – that is, to be able to govern without forming a coalition with other parties. Saying that Poles were beguiled by the party’s economic redistribution policies is inaccurate. As in the United States, there are only two major parties on the Polish political scene, and the nation opted for the one that promised to restore a sense of Polish pride and to make Poland a better place to raise children. Voters also tired of a series of scandals during the previous government ruled by Civic Platform (Platforma Obywatelska, or PO). Of course, the PiS government is far from being the dream of any free marketeer: Its leader, Jarosław Kaczyński, never hid his statist views. We must also wrestle with the reality that that the Polish Constitution, in Article 2, defines Poland as a democratic state ruled by law and implementing the principles of “social justice.” The imprecise notion of “social justice” present in the Polish constitution is the object of considerable criticism by the nation’s conservative-classical liberal movement.
As to the Constitutional Court “crisis,” it is important to recall its beginning. Too many accounts do not mention the genesis of this problem. “One can also discuss the attack of the current government on the Constitutional Tribunal, but it is worth remarking that the Tribunal had become a political tool in the hands of the previous ruling coalition, which appointed 15 out of 16 judges, including three in an indisputably illegal manner,” writes Prof. Andrzej Nowak. PO aimed to maintain political control in the Constitutional Court, which could potentially block future reforms announced by PiS, especially its policy of so-called “decommunization” of the judiciary. The Constitutional Tribunal Act passed by the PO-PSL coalition in June 2015, which gave the power to select new Constitutional Tribunal judges before the elections, was a deviation from parliamentary custom. The parliament, the Sejm, traditionally refrained from adding new judges to the Constitutional Tribunal if those judges were to start their terms of office after the parliamentary elections. The PO-PSL law opened a Pandora’s box and kicked off a long-running political dispute between the new ruling party and the opposition, with each side having its internal and external supporters. The EU – where former prime minister and PO co-founder Donald Tusk now holds sway – has chosen to crack down on Poland. Whatever its motive, the EU’s action has only seemed to increase the government’s popularity in the latest polls.
The chief bone of contention seems to be the fact that the judiciary council, which assesses judicial candidates, would be elected in the main by the Sejm, whereas previously its members were chosen by judges themselves. Current Prime Minister Mateusz Morawiecki says the reforms are extremely important to shake up encrusted structures and rid an inefficient judiciary of cronyism. “Please check, in how many countries the executive power has influence on the choice of judges,” says President Andrzej Duda. “In the United States, the president appoints the judges of the Supreme Court, and the Senate members gives their opinions; the judges' organizations have nothing to say there in these matters.”
The Polish government, and an important portion of society, believe that the European sanctions are rather due to Poland’s firm posture in such cases as the refusal to resettle Middle Eastern migrants, climate change policy, social issues, and resisting the increased federalization of the EU. Because the judicial change is being used as a proxy for a wider Polish-EU political dispute, we are experiencing an inflation of vocabulary: Words such as “dictatorship,” “fascism,” or “authoritarian rule” are being used too freely to discredit political adversaries. The EU sanctions are moreover called ‘an injustice’ by internal and foreign press. “It is an arbitrary and useless decision,” writes Mr. Patrick Edery, CEO of the consulting company Partenaire Pologne, in Le Figaro. Edery writes that greater sins from other European countries did not provoke a reaction from the European Commission.
Changes made to the composition of the Polish judiciary have become the apogee of political games and reciprocal accusations. That fact requires honest brokers to pay attention to the arguments of both sides, consider the genesis of the problem, and take into account the specific context of modern European politics. This is not the first time that the wealthiest EU nations have tried to impose their political will upon its weaker members. Therefore, their attitude towards Poland might be considered a manifestation of paternalism of the Western European leaders.
This article is a response to Marek Tatała's essay, which you may read here. -- Ed.
(Photo credit: European People's Party. This photo has been cropped. CC BY 2.0.)
