In the October 2015 elections for the Polish parliament, the Law and Justice Party (PiS) won an outright majority with an ambitious Poland First programme of so-called “good renewal”, which included a generous social welfare programme and a desire to overturn their predecessors’ social and economic policies.
PiS is
ultra-nationalist and socially conservative, opposing (indeed reversing) LGBT
rights and women’s rights (for example, they have said they will take Poland
out of the Istanbul Convention on preventing and combating violence against
women and domestic violence). They also opposed taking a share of Syrian
refugees because they didn’t want to undermine Poland’s Catholic identity.
Their leaders are obsessed with exposing the supposed criminality of the
post-communist political and economic establishment and its failure to
challenge the EU’s liberal social agenda.
In
particular, they blamed a self-perpetuating independent judiciary that they
claimed to include judges from former communist Poland. In fact, there were
barely three former communist lawyers left in the Supreme Court out of a total
of 125 members, as the remainder had long been retired. PiS’s self-declared
mission to brook no opposition to their economic and social programme led it to
uproot democratic conventions and cut legal corners with a series of measures
that subjugated the judiciary and the state media to their party political
“control”.
Since 2016,
a number of EU and even UN institutions have criticised the changes to the
political framework by the PiS government, but with only a limited effect. On
20 July 2020, the committee on civil liberties, justice and human affairs (a
committee of the European Parliament) issued its latest interim report, urging
the EU Commission to take punitive measures against Poland because of “a clear
risk of a serious breach by the Republic of Poland of the rule of law”.
The report
recounts in great detail the measures taken by the PiS government to erode
fundamental human rights and subvert the independence of the judiciary in
Poland. This has taken place not in one fell swoop, but as a result of a
thousand cuts, each moving forward the agenda despite attempts to prevent each
transgressions by either an outvoted and demoralised internal opposition, or by
the various EU relevant institutions.
In a
20-page document, the committee lists the abuse of powers by the new parliament
from December 2015 onward when it assumed powers to revise the constitution and
curtail the independence of the civil service, the police, the Public
Prosecutors’ Office, the ombudsman for human rights, the National Media Council
and the judiciary. In particular, the committee criticised the merging of the
hitherto non-political office of prosecutor general with the political post of
justice minister. The new parliament also redesigned the judiciary by
politicising the appointments to the Constitutional Court and by introducing
new institutions. These new institutions included the Chamber of Extraordinary
Control, the National Council of the Judiciary, and the Disciplinary Chamber,
all staffed with the justice minister’s nominees in order to control and even
purge judges both in the independent supreme court and in local courts.
This has
led to a dangerous duality in the Polish justice system where, for example, the
current Supreme Court passed a resolution refusing to recognise the validity of
pronouncements by the government-controlled Disciplinary Chamber, while the
government-controlled constitutional tribunal declared the Supreme Court’s
resolution as unconstitutional. The committee acknowledged that the
organisation of the justice system is a sovereign national competence, but EU
members are still required to ensure their legislation does not breach EU law,
and in particular the separation of powers between the legislature, the executive
and the judiciary.
Other
aspects were criticised too, such as the work of the National Media Council
changing the state television into a crude propaganda outlet for the ruling
party and for its candidates in the ensuing elections. The committee also highlighted
concerns over new legislation that has curbed: academic freedom; freedom of
assembly; freedom of association; privacy and data protection; religious
indoctrination in schools; the right to a fair trial; the right to information;
and freedom of expression in the conduct of public life in Poland.
The
committee found that legislative changes brought in by the ruling party have
also encouraged hate speech, public discrimination, violence against women,
domestic violence and intolerant behaviour against minorities. It concluded
that these measures in Poland “amount to a serious, sustained and systemic
breach of the rule of law”. These, and other crucial pieces of legislation,
were passed with excessive haste and little chance of adequate public consultation
or parliamentary scrutiny, mainly late at night, in an atmosphere fraught with
tension and anger where bullied opposition MPs had their mikes switched off
after one minute of debate.
The
committee has called on the EU Commission to use all tools at its disposal
including budgetary controls and voting rights under Article 7 the Lisbon
Treaty, to ensure “all EU countries respect the common values of the EU”.
In view of
the narrow victory of its candidate in the presidential election on 12 July,
the ruling PiS shows no inclination to comply with the resolution of the
committee. The EU Commission is also currently not in a position to lay down
the law, because it needed a unanimous vote at the European Council summit that
concluded on 21 July, to pass through an ambitious package of 750bn euros to
combat the Europe-wide economic crisis following the Covid-19 lockdowns on the
continent. The Polish government would only give its consent to this package of
measures, through which it would receive a generous provision, if it was agreed
that there would be no curtailment on Poland’s access to these funds because of
its breach of European law.
The wording
of the final agreement was something of a fudge. The distribution of funds
would be subjected to majority voting and not unanimity, but the Polish prime
minister was assured that the EU Commission would design the new budgetary
safeguards so that the funds would not be threatened by any disciplinary
measures against Poland. The European Parliament has already passed a
resolution expressing concern at this ambiguity. At the same time, the Polish
justice minister has bitterly criticised the prime minister for not clearing up
the ambiguity at the summit, as it appeared to threaten the continuation of his
party’s authoritarian “good renewal”.
The EU
Commission is to publish the budgetary mechanism for issuing the funds at the
end of September and then we shall see, in the resulting confrontation between
the EU Commission and the Polish government, which side will blink first.
