Human rights and freedoms do not exist without judicial control that is independent, fair and free form political pressure. After suppressing the Constitutional Tribunal in Poland some months ago, the Government decided to eliminate the High Court of Poland and paralyze entire judicial system with the use of laws that brutally violate Polish Constitution. Thanks to unprecedented, spontaneous protests of Poles taking place all over the country, as well as pressure coming from abroad, this attempt has been now partly stopped. But the crucial question of human rights guarantees remain open.
In their blog entry on the current situation in Poland, Wojciech Przybylski and Anna Wójcik explain the essence of this crisis.
Wojciech Przybylski is editor-in-chief of Visegrad Insight, analysis and opinion journal led by editors from Poland, Czech Republic, Slovakia, and Hungary. He is expert on EU and Visegrad affairs and comments for Foreign Policy, The Financial Times, and Politico Europe, among others.
Anna Wójcik is a lawyer and sociologist, a PhD researcher at the Polish Academy of Sciences in the Memory Laws in European and Comparative Perspective (MELA) research project, and editor of Visegrad Insight.
The power of civil protest
A week after the US president Donald Trump’s visit to Warsaw, the governing populist Law and Justice party hastily pushed through parliament three bills aimed at undermining independence of the judiciary and tripartite division of powers. After the wave of spectacular street protests that swept Polish cities, President Andrzej Duda promised to veto two out of three controversial laws that would considerably increase political influence over appointments to the Supreme Court and National Council of Judiciary. However, Duda will still sign the third controversial law on functioning of common courts, which had been criticized by constitutional organs including the Supreme Court and the Polish Ombudsman, national and local councils of judges and barristers, and usually restrained academic community.
Mr. Duda was called to step up and resolve the crisis by Poles protesting in the streets as well as by political figures including the EU Council President Donald Tusk. Until very recently, Mr. Duda was strictly following directions set by Jarosław Kaczyński, the chairman of Law and Justice and de facto the most powerful man in Poland. Mr. Duda newfound courage may be to some extent the result of Trump’s visit to Poland, which is considered as a great achievement of Duda’s team. The Trump administration has criticized the package of three reforms of the judiciary.
Meanwhile, Mr. Kaczyński has a vision of nationalistic and illiberal Poland and is learning from abroad, namely from Viktor Orban’s goulash authoritarianism in Hungary. Hungarian PM Orban had a sufficient parliamentary majority to change the Fundamental Law (the Constitution) of Hungary in 2011. Despite winning the biggest majority since 1989 in general elections in 2015, Law and Justice lacks parliamentary votes to lawfully change the Constitution in Poland.
But it does not stop Mr. Kaczyński, a man of autocratic ambitions, from remaking the Polish political system according to his wishes. If he succeeds, this is a bad news for the rest of transitional democracies in Central and Eastern Europe and for the EU as whole. It would mean that Mr. Kaczyński has effectively expanded catalogue of tools available for power-hungry aspiring leaders in the region. This toolbox includes also referenda, tried-and-tested in Budapest.
Is Polish illiberal fever contagious and could affect eastern member states of the EU in a domino effect? Czech and Estonian associations of judges voiced their deep concerns over proposed changes to judiciary reform in Poland. For now, Visegrad Group is divided on rapprochement of Poland and Hungary that goes under the nickname of Budapest-Warsaw express. Czech Republic and Slovakia’s leaders are distancing themselves from the two other Visegrad allies. However, this may change after 2017 general elections in the Czech Republic that are set to secure the post of prime minister to a businessman Andrej Babiš, the maverick leader of the ANO party. Slovakia is also at risk of falling under populist charm with a more far-right twist: openly xenophobic People’s Part Our Slovakia lead by Marian Kotleba has already entered parliament in Bratislava.
Judiciary on trial of public opinion
Unlike Germany, most of European members states did not develop their versions of “constitutional patriotism”. Additionally, societies behind the former Iron Curtain had been trained to disregard and go around the law in order to survive. After almost 30 years of transition to democracy, in Poland law is still not perceived as the glue that holds the society together, but rather as an obstacle that has to be dealt with. While scholars of law and democracy praised many achievements of Polish judiciary after 1989, average Poles are deeply suspicious and dissatisfied with the quality of law, access to justice, and length of proceedings. The fact that judges are perceived as over-priviliged, arrogant “caste” does not help either.
A sense of injustice stemming from negative personal experiences is greater than power of any propaganda story about the necessity to purge Polish judiciary from the post-communist residue. Poles are not blind to generational change that occurred in public life and civil service with inevitable passage of time. According to data provided by the Association of Polish Judges Iustitia, the average judge working in district courts is only 38 years old.
Law and Justice won in 2015 not as much on anti-communist sentiment, as on electoral promise of more equal redistribution of wealth, justice, and dignity. There is a consensus among legal professional community and the Polish society that the legal system has to be reformed in order to better serve citizens.
At the same time, constitutionalists agree that Law and Justice is not reforming, but deforming the system: it is an equivalent of healing the gangrene by cutting the patient’s limb. President Duda, vetoing 2 out of 3 controversial bills and launching a process of deeper consultations with expert community and Polish society, has partially addressed those concerns. It seems that Mr. Kaczyński’s revolutionary, bolschevik zeal is less attractive than Mr. Duda’s conservative, incremental changes.
Poland in the European Union
Despite all the above negative sentiments about the judiciary, in recent days Polish civil society has demonstrated a heartening support for the values of rule of law, division of powers, and embedment of Poland within core European democracies. Since accession to the EU in 2004, most Poles have been staunchly pro-European and many see themselves as anchored and benefitting from integrated Europe with its freedoms and single market. Polish economy is strong with GDP expected to grow by 4% this year, and successes in collecting tax revenues that help to finance family benefits schemes, a pillar of Law and Justice popularity.
However, Poles justly fear that erosion of rule of law and democratic guarantees would in long term harm and sideline Poland in the European Union, even if the EU fails to trigger the nuclear article 7 which would strip Poland of voting rights in the Council. The Law and Justice proposals for the reform of judiciary were criticized by legal, business and startup communities.
Poles see deficiencies and ineffectiveness of the European Union, which has failed to punish illiberal tendencies brewing in Warsaw and Budapest. Recent events in Poland prove that the impact of external pressure on domestic affairs is limited and that the answer to autocratic tendencies must come from inside, from the society itself. The surprising change of heart of President Andrzej Duda is a testament to power of civil protest.
The text was originally published in der Freitag, a German weekly.