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Why Polish Democracy Is Under Threat

 5 min read / 

While attention in Brussels is focused on Brexit negotiations, the ruling populist right-wing –Law and Justice party (PiS) in Warsaw is busy dismantling the rule of law in respect to the independence of the Supreme Court and its judges. This independence of the judiciary is widely perceived as the very cornerstone of European style democracy – a condition Poland actively aspired to before EU accession in 2004.

This is a brazen attempt by the government to tighten its grip on power. This latest raid on democratic values comes soon after PIS dissolved the power of the Constitutional Tribunal — the guardian of the nation’s laws.

Political tensions with Brussels could undermine Poland’s economic success story. The country has avoided many of the problems of the Eurozone and will be (after Brexit in 2019) the 5th largest economy in the EU – with GDP growth of 2.8% (2016) and public (and private debt) levels below the European average. It is also awash with EU funds and benefits as the largest recipient of EU structural funds (until 2020) – serving inter alia to modernize its transport infrastructure.

Separation of Powers

What’s at stake? The ruling Law & Justice party (PiS) in Warsaw has succeeded in passing two Parliamentary bills which give political control for the appointment of all Supreme Court judges.  And secondly, all existing judges are to step down with the exception of those kept on by the Justice minister.

This is contrary to the principle of Separation of Powers; a doctrine not confined to the EU. Enshrined in the constitutions of nations throughout the free world, its aim is to provide legal blocks on the executive (government) from exercising political control over the legislature (parliament) and the judiciary.

Reactions from the EU

The EU’s heightened concern over this has been expressed by Donald Tusk, President of the European Council and a former Polish prime minister, when he referred to “the dangerous consequences for Poland’s standing on the world stage”.

He said:

It falls to us, together, to avert bleak outcomes which could ultimately lead to the marginalization of Poland in Europe. It is my belief that it’s most recent actions go against European values and standards, and risk damaging our reputation.

He added:

Bringing judges under the control of the governing party in the manner proposed by the Law and Justice party ruins an already tarnished public opinion of Polish democracy.

Concern has been voiced in the Czech Republic (a fellow member of the Visegrad Group) by a group of senior judges branding the intended judicial reforms as

an unprecedented attack on the independence of the Polish Judiciary”…We have witnessed, in our close neighbour,  developments that threaten the very essence of the principles underlying the democratic rule of law

Sanctions

The EU Commission’s deputy President, Frans Timmermans, has warned the Polish government that the EU is “very close” to triggering Article 7 of the Treaty on the European Union (TEU) which could lead to Poland losing its voting rights in the Council of Ministers. However, this device is unlikely to succeed, as Hungary’s ally Premier Victor Orban has made it clear he will veto any move in that direction.

The US has joined the chorus of criticism when (on July 21) an official representative of the US State department called on the government to safeguard the principles of an independent Judiciary saying the reform plans … “potentially weakened the rule of law in Poland”. This is in contrast with Trump’s visit to Warsaw on 6th July which may have buoyed up the authorities in assuming a ‘special relationship’ was developing between the two populist governments.

Reactions in Poland

Tusk’s intervention prompted a swift response on July 24th from Poland’s President Andrzej Duda, who exercised his presidential veto over two of the bills passed by the Sejm. However, he gave his blessing to a third bill which would grant the justice minister the power to replace the presidents of lower courts. For the opposition, this is no cause for celebration. The President’s action provides a breathing space, but this may only lead to an amendment of the bills, so it’s a case of ‘wait and see’, with no likely outcome before the summer recess.

Polish Opposition

Polish opposition parties have orchestrated mass city demonstrations demanding ‘demokracja’, reminiscent of those conducted in the autumn of 2016, successfully opposing the passing of strict abortion laws.

Conclusion

No display of compromise has yet appeared. Jaroslaw Kaczynski, the government’s party leader is critical of the Presidential veto. The concerns from the US should prompt a re-think as will any from the business community. Deputy Prime Minister Morawiecki acknowledges the need for a solution that doesn’t frighten off foreign investment (FDI). As a last resort, Brussels can play the regional aid card – especially for distributing funds for the EU budgetary period 2021-2027.

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