Poland's Interrupted Transformation

Introduction

It’s the bigger picture that puts things in perspective.

By the weekend of August 15, 2021, the Taliban had swept across Afghanistan. With an extraordinary speed and facing little resistance from the American-trained Afghan military, the Taliban reached Kabul. After twenty years of waiting, this movement is back in power.

It is too early to know what the Taliban leaders want to do with that power. The blame game, however, began as soon as Kabul fell. There’s certainly plenty of it to go around, with U.S.  President Joe Biden taking the brunt of it.

Two things are already certain: the West failed in terms of providing sustainable military and security institutions to the Afghan people. Also, the West was unable to build durable institutions based on human rights, the rule of law, an independent media and dignity, particularly for women. These are the fundamentals of democracy that are not easily transplanted to other countries with different traditions.

Closer to home, in Belarus, the European Union’s direct neighbor, those demonstrating (not fighting) for democracy are still waiting for real change. The huge, peaceful protests that began in August 2020 have all but ended – not because of a lack of support for demonstrating or for wanting change. It is because President Alexander Lukashenko’s regime has done its utmost to break, indeed, destroy society.

This is not just about dismantling civil society movements. It is about stopping the normal functioning of society. Meetings and events, sports matches and concerts, gatherings of associations, regardless of whether they represent bee-keepers or singers have been banned. Not only that: society has been incarcerated. The state apparatus has put thousands of people behind bars, including at least six hundred political prisoners. Young and old, teachers, doctors, engineers, factory workers, students, journalists, lawyers, pensioners, drivers, nurses, sportsmen and women are behind bars too or have endured intimidation and beatings.

All this is happening in a country that is a direct neighbor of the European Union.

Surely what is taking place in Afghanistan and Belarus should make EU leaders and its citizens even more appreciative of what their societies enjoy. The EU, built on the destruction of World War Two, has made peace, democracy, values and human rights the core of its identity.

And it is to the EU that those wanting decency,  opportunity and security and freedom look. Yet, the EU is no longer living up to those principles. Some EU countries themselves are systematically challenging the very architecture of post-1945 Europe.

One of those countries is Poland.

If the leaders of the EU institutions, European governments and the judges in the bloc’s European Court of Justice do not stop Poland’s dismantling the rule of law, it will set a dangerous precedent in which other member states could follow suit. 

What is at stake is the EU’s integrity as an organization based on justice, accountability and transparency. What the case of Poland shows is that the future of institutions based on democracy and the separation of powers can no longer be taken for granted.  As it is, in the EU and in the global context, democracy is being contested. If anything, it in in Europe that democracy should be robustly defended.

This essay is about how Poland, a country that back in 1989 yearned to “return to Europe”, is endangering itself and the European Union by making the judiciary, the legislature and legal system instruments of the Polish government.

What a development for this big, proud country which was so often in the past conquered, occupied and divided but which now should be basking in its independence, stability and peace. It has the means and size to do all of those things.

In terms of population Poland is the EU’s fifth largest. Its economic, political and military potential has still to be tapped but it is no minnow. Its bilateral trade with Germany is higher than Germany’s trade with Russia!^[1] It escaped, to the envy of many other countries, the damage inflicted by the 2009 global financial crisis. Its government at the time – Civic Platform – was an ardent supporter of EU integration, of giving Poland a genuine role in the shaping European foreign and security policy.

But under the governing conservative Law and Justice (PiS), in power since 2015, that potential and reputation has been squandered. This is because PiS is intent on implementing a new transformation of Poland in a way that questions the principles it signed up to when it joined the EU on May 1, 2004. One of those key principles was safeguarding the independence of the judiciary. It has also called into question the way in which the communists ceded power in 1989.

Briefly, this is what has happened in Poland since 2015.  Zbigniew Ziobro, the justice minister merged the justice and prosecutor general’s office in a single post that led to the concentration of the judiciary in his hands.

The assault on the Constitutional Tribunal then began in earnest. Since 2016, the powers of the Constitutional Tribunal have been consistently challenged to the extent that it has become a government mouth piece. PiS has placed its own judges onto the Tribunal whose original, legal task was to safeguard the constitution. Today, it has become a rubber stamp for PiS’s agenda.

In practice, this means that under Ziobro, 1,000 of the 6,100 prosecutors have been dismissed. The heads of 11 provincial prosecutor’s offices and 44 of 45 regional prosecutor’s offices have been replaced.  The heads of departments at all levels have been changed. Anyone who has criticized the changes – if not already sacked or dismissed – has been transferred to remote locations.  As for the courts themselves, Ziobro has the power to dismiss or appoint all presidents of the ordinary courts – from district and regional to appeal level.^[2]

The National Council of the Judiciary hasn’t been spared either. The role of NCJ was to select candidates for appointment as judges by the Polish President. Fifteen of the NJC’s 25 members were previously elected by judges. Today, these judges are elected by the majority of the Sejm, the lower house of the Polish parliament where PiS and its allies hold the majority. Twenty three of the twenty five positions are now political appointees.^[3]

The NCJ now controls judicial appointments including those to the Supreme Court and the newly-created disciplinary chamber established by Ziobro. The justice minister can appoint individuals involved in investigating, prosecuting and judging disciplinary charges against ordinary judges. In the past, disciplinary officers were selected by the NJC. Not anymore. Ziobro, in reality, has influence over 10,000 judges working in different courts. In a nut shell, he can appoint the disciplinary court judge who hears a disciplinary case. The independence of the judiciary has been emasculated.

Then there is the assault on the civil service. The civil service which took time to build up after 1989, has been taken over by PiS. Skilled diplomats from the foreign ministry have either left,  been demoted or sacked.^[4]

The defense ministry has lost capable officers who are all the more necessary given the challenges all EU and NATO countries face. Other ministries haven’t been spared. Experienced state enterprise managers have been replaced.  And companies are subject to pressure to fund PiS activities.

The media is another PiS target. Commercial and public media has been under consistent pressure over the past few years. Advertising can be withdrawn via a phone call from PiS. Editors and journalists have already been sacked or replaced.

In August 2021, on the spurious ground the it did not want the popular TVN and TVN24 24 television channels to fall into the hands of Russian or Chinese owners, during a tumultuous parliamentary session, PiS voted to take over this channel owned by the American company, Discovery. Essentially PiS reneged on the contract which was damaging enough for the message it sent to future investors. In terms of its relationship with the United States, it was perceived as a major strategic mistake. Since 1989, successive Polish governments have invested in the closest possible relationship with the United States and the United States has been by an large an unswerving supporter of Poland.  Washington was seen as Poland’s best and closest ally.

This catalogue of takeovers shows how PiS is chiseling away at the independence and integrity of the institutions. All this is taking place inside the EU. But until now, the European Commission, the EU’s executive, has dragged its feet and several member states, including Germany, have been reluctant to criticize Poland. Despite all the talk about defending values and upholding the rule of law, the Commission’s leaders have been fairly toothless over taking action.

It’s all very well blaming the member states for blocking sanctions or withholding funds to those EU member states that run rough-shod over the law. That loses sight of the bigger picture: how the integrity and protection of the EU treaty is being undermined from within.

After several years of procrastination, on July 15, 2021, the European Court of Justice issued a judgement about what was taking place in Poland. It referred to a “structural backdown”^[5] of the Polish judiciary. In its view, the judiciary “no longer makes it possible either to preserve the appearance of independence and impartiality of justice and the trust which the courts must inspire in a democratic society or to dispel any reasonable doubt in the minds of individuals.” The trust in the courts is breaking down. The belief of holding a fair trial is no longer a given.

No wonder Polish judges have turned to the ECJ to advise on how to apply EU law, knowing that back home, they are considered traitors by PiS and Ziobro who are disregarding EU law.

As Koen Lenaerts, the Belgian president of the ECJ wrote in early 2020 – referring to Poland -  “without judicial independence, remedies grounded in EU law become a paper tiger.” It was assumed, he argued, that those countries joining the EU “will remain committed to defending liberal democracy, fundamental rights and a government of laws, not men. Recent developments show that this assumption cannot simply be taken for granted.”^[6]

PiS is playing for time. As the Commission threatens to withhold the special Coronal recovery funds to Poland, Jaroslaw Kaczysnki, PiS’s veteran leader who tightly controls the party, said the disciplinary council would be abolished - without admitting the damage that council had done, the implications of getting rid of it in the first place and indeed if it will replaced by any new PiS rubber-stamped council. In any case, Kaczynski’s decision, if implemented, would do little to undo the damage inflicted on judicial independence and just as important, rebuild the public trust in the judiciary. It has plummeted because of PiS’s negative portrayal of judges.^[7]

INTERVIEW, LECH KACZYNSKI^[8]

He spoke quietly but with conviction. Sitting in a small room in the Presidential office in down-town Warsaw, Lech Kaczynski set out his ambitions for Georgia and Ukraine. He wanted both countries to join NATO, just as Poland did back in 1999.

It was March 2011 when I sat down with Kaczynski. His twin brother, Jaroslaw – whom Lech mentioned several times during the interview - was biding his time in his opposition party, Law and Justice (PiS).

President Kaczynski was careful not to criticize the governing centrist Civic Platform. Co-habitation seemed to be functioning as Poland had to grapple – successfully as it turned out - with the fallout from the global economic crisis and the strategic challenges in its immediate neighborhood.  

Three years earlier, Russia had occupied parts of Georgia. Ukraine, Poland’s neighbor, was engulfed in corruption, competition between the oligarchs and an economy held hostage to Russia because of Ukraine’s importance as a transit country for gas Russia destined for  Western Europe via Ukrainian pipelines. Altogether, it was not a happy neighborhood. Which is why, Kaczynski argued, joining NATO was so important for making Poland feel secure.

“It was obvious to us that this was the only tough security structure there was in the world and that the membership of NATO would only mean benefits for Poland,” he explained.  Today, NATO forces are active in the Baltic and a small contingent of American forces are based in Poland. In practice, this part of Europe should be stable.

During the interview, Kaczynski placed great store on stability, the past, and especially the differences between Eastern and Western Europe.

There were, he explained, still big gaps that reflected the old dividing lines between East and West. Kaczynski put them down to their different historical experiences.  The communist past was such a dividing line between East and West, he said. “There will always be a mental difference between politicians on each side of the old Iron Curtain. In time, this will disappear,” he added.

Kaczynski didn’t live to see the disappearance of these mental differences or indeed the exploitation of these differences. Along with 95 Polish dignitaries and top politicians, he was killed in a plane crash on April 10, 2010 The plane was due to land in Smolensk. From there, the passengers would make their way to a ceremony commemorating the massacre of over 20,000 Polish officers by the Soviet Red Army in May, 1940.

Although Law and Justice was in opposition at the time, the crash became a major source of division and recrimination between Law and Justice and the governing Civil Platform.

Conspiracy theories abounded, not helped by the Kremlin’s refusal to send back the plane to Poland. The crash also deepened a polarization that was already taking place so soon after the historic 1989 Round Table negotiations.

If anything, since 1989, Poland’s transition from communist rule to democracy has been dogged by bitterness, revenge and a polarization among the key players who had sat down together in February 1989 to agree the peaceful transfer of power. The passage of time, instead of weakening such sentiments, has only hardened views and positions. The upshot is that Poland is being turned into a country where the competition for control and power, whatever the costs to society and to Poland’s relations with the European Union, are inhibiting this important country from exercising its full economic, political and cultural potential in Europe.

What went wrong: Or how did happen to a country that yearned to return to Europe?

Back in 1989, the independent Solidarity movement, of which the Kaczynski twins were members, negotiated the peaceful transition away from the one-party state to democratic elections. 

When Lech Kaczynski told me about the divisions between East and West – and implicitly, the lack of understanding by the latter, what he omitted to include was the divisions that emerged in Poland after the 1989 Round Table talks. In retrospect, Poland’s dispute with the European Union over the rule of law stems from those talks and their aftermath.

For PiS, and particularly for the Kaczynski twins, the negotiations did not transform Polish society the way they wanted it to. They wanted to get rid in one sweep any traces of the communist system. This has influenced PiS’s view of the European Union. Warsaw’s dispute with Brussels is, in PiS’s view, about Poland’s incomplete transformation. PiS wants to finish it. On its terms. Not the EU’s. And for that matter, not the US’s either.

For PiS, the first ‘failure’ of the Round Table talks  was the Constitution of 1997. The run-up to passing the constitution was a dress rehearsal for future conflicts between the political parties.^[9]

As Wojciech Sadurski points out in his book ‘Poland’s Constitutional Breakdown’, “the political campaign leading up to the referendum [on the constitution] had become particularly nasty, with Solidarność leading the ‘No’ campaign and accusing the authors of the draft constitution of treason, intention to install tyranny and anti-religious sentiments.” The No campaign wanted their own ‘citizens’ draft’,” wrote Sadurski.

The No campaign had managed to garner 900,000 signatures to be presented alongside the vote on the constitution. That was not allowed. In a nutshell, on May 25, 1997, a majority – 53% versus 43% voted for the constitution. The turnout was miserably low – 47.86%. Only half of the eligible voters – some 22.6% turned up at the ballot box for the new Constitution. Since the law provided no minimum threshold for the validity of the referendum, the Constitution entered into force on 17 October, 1997. As if that was the end of the story for enacting a new constitution.

The vote for the constitution and the drafting and contents of constitution itself were politically divisive before and after. Some scholars said the deliberations involved in the drafting were inclusive and thorough. Others lamented the fact that certain subcommittees, such as those related to institutions,  were dominated by people belonging to the old regime – “partly because most Polish experts in the area came under the once-tightly controlled university law faculties”.

In a reference to what leading PiS officials regard as a flawed process, Sadurski makes the point that the “imperfect constitutional compromise of 1997 was in fact prefigured by the purely pragmatic, contingent, and context-sensitive political compromise of 1989.”

Looking back at the debates over the Constitution, the conservative right and the left got what they wanted in terms of protecting the status of the Catholic Church and the state duty to pursue full employment.

The constitution, protected by the Constitutional Tribunal – whose functions and status was to become the source of the dispute between Poland and the EU – was challenged once PiS won office in 2005.

During those first few months, Polish politics was shaken up. The opposition had been shattered. Freedom Union and the SLD, or post-communist left parties were decimated. Against such a background, PiS didn’t waste time. It used its victory to introduce constitutional changes that would entail introducing stronger powers for the president, reducing the rights of religious freedom and limiting the powers of the Ombudsman – a post that was essential over protecting and overseeing the implementation of human rights.

PiS’s immediate goal was to impose its imprint on Polish society that would dislodge the influence of the liberal intelligentsia.  PiS had repeatedly blamed the latter for failing to introduce in 1989 a radical transformation that would rid the institutions, ministries and media of communists. Yet one of the judges appointed by PiS in 2019 was Stanislaw Piotrowicz, a former member of Parliament and PiS member. For all the talk about cleansing the judiciary of communist influence, Piotrowicz is a former communist prosecutor. “He had worked during the period of martial law and prosecuted members of the anti-communist opposition. He was a member of the communist party for 22 years. In 1984, the communist regime awarded him a Bronze Cross of Merit. He is now spearheading the fight against the ECJ in the Constitutional Tribunal.” ^[10]

PiS didn’t waste time in tackling the media which it consistently accused of being staffed by the liberal/left wing intelligentsia that had only contempt for PiS supporters.

The plan was to establish guidelines to the Broadcasting Council which in practice would restrict the freedom of speech. PiS had already moved quickly to end the term of office of the members of the Broadcasting Council, increase its members and elect the president of the Broadcasting Council which in turn gave the President the right to appoint and dismiss the president of the council. Control of the media was  crucial to PiS’s political ambitions.

PiS also wanted to adopt a lustration law – essentially ridding the public sector of those individual with any connection to the communist era. That would have affected tens of thousands of people. It was unclear how these individuals would be selected, the criteria for any trials or hearings and how far the lustration process would reach.  In addition, anyone linking the Polish Nation to co-responsibility for Nazi or communist crimes would be punished by law.

Between 2005-2007, when PiS was in government, the political atmosphere became poisonous and increasingly polarized. The Constitutional Tribunal (CT) managed to hold the fort and resist the pressure and attempts by PiS to introduce some major changes that would have challenged the constitution itself. In short, the CT rejected the battery of bills PiS had introduced with the aim of pushing their own agenda which, back then, amounted to undoing the mistakes of the 1989 Round Table talks.

For Jaroslaw Kaczynski, it was the courts and the judiciary whom he believed were packed by the old communist guard and supported by the liberal intelligentsia. It didn’t matter that the latter were part of the anti-communist dissident movement that pre-dated Solidarity. For Kaczynski, it was the judiciary that was at the root of Poland’s distorted, incomplete transformation.  Precisely because of that, the judiciary had to be controlled and overhauled. But when the CT ruled against the lustration bill, Kaczynski shot back.

For him, the courts got in the way of promoting his definition of real justice and real reform. It was about “Legal Impossibilism.” Thus began  Kaczyński’s transformation of Poland’s post-1989 transformation. The judiciary was his first port of call.  Because the CT was still pretty robust, during those two tumultuous years, the 1997 Constitution survived PiS’s assault.^[11]

The assault on the Constitution and the CT had a reprieve when the centrist Civic Platform (PO) party was swept into power in 2007. PO became the darling of the EU, especially Germany. It embraced more EU integration. It wanted a more coherent European security and defense policy. And it went to extraordinary efforts to reach out to Russia and try and put the Polish-Russian relationship on a new footing.

The Smolensk 2010 crash put paid to the latter goal, particularly because the Kremlin, at first very sympathetic towards Poland and almost effusive with its condolences, did little at all to help with the investigations surrounding the crash. Its refusal to hand back the plane created a climate of recrimination and suspicion. Needless to say, the Polish-Russian relationship deteriorated rapidly.

Russia’s invasion of eastern Ukraine in 2014, the growing authoritarianism of the Putin regime and the Kremlin’s attempts to disrupt European democracies through disinformation campaigns and cyber-attacks also meant any chances of a rapprochement between Warsaw and Moscow were out of the question. PiS capitalized on all these emotionally-charged issues; and on Civic Platform’s mistakes, particularly its inability to reach out to the non-urban population living in small towns and villages and working the land. It was this population that PiS reached out to.

In 2015, on a ticket promising social reforms that included the introduction of a special 500 zloty a month payment per child in order to encourage women to have more children – and lambasting PO as an elitist movement -  PiS was elected. So began the transformation, the so-called ‘reform’ in earnest. The revenge that Kaczynski was seeking back in 1989 and in 1997 and in 2005 was now attainable. Under his leadership (directing the party in the background), PiS embarked on “Legal Impossibillism.”

Jaroslaw Kaczynski had coined the phrase “Legal Impossibilism” in PiS’s 2009 programme to coincide with parliamentary elections (which at the time it had failed to win). The program defined Legal Impossibilism as an “excessive restrictions of the democratic state’s actions to benefit its citizens’ and an ‘over—idealistic understanding of the division and balance of power among the branches of government.” 

According to Leah Wortham and Fryderyk Zoll, the program “laments court decisions that overturn acts expressing the will of the majority and the result of the arduous work of democratically elected state bodies.  It’s worth continuing the authors argument: “Kaczynski also has decried judges who defied contrary to PiS’s vision of Polish raison d’etat as ojkofobic – harboring a hatred of their native country.”

With speed, the PiS government cancelled the appointment of five Constitutional Tribunal judges. Legal Impossibilism began in earnest. Sejm deputy, Kornel Morawiecki, a fearless dissident (now deceased) during the communist era and father of Prime Minister Mateusz Morawiecki, justified the decision: “Law is something important but it is not sacred,” he said. “Above law stands the good of the nation. If law interferes with this good, we shall not treat law as something inviolable or unchangeable. What I say is this: law shall serve us! Law that does not serve the nation is lawlessness!”  In essence, if the law, the judiciary and the constitutional order challenged PiS’s agenda, they were betraying the Polish nation.^[12]

In the name of Legal Impossibilism, the judiciary’s independence was whittled away.

“They are doing this to the judiciary because the judiciary is by far the largest sphere that is not yet fully captured by PiS,” Sadurski told me in an interview. “PiS controls local government. And the commercial television and media. But the courts and judiciary are not fully controlled of constrained. Kaczynski intends to control this sphere of public life. It’s obvious that the judiciary is very important. The Constitutional Tribunal in Poland is of central importance. All laws may be challenged before the Constitutional Tribunal.  The CT judges were unwilling to validate PiS. Now PiS  has conquered the CT. 

A judge under pressure.

INTERVIEW, IGOR TULEYA^[13]

Tell me something about yourself

I was born in 1970, in Lodz. But my whole life has been connected to Warsaw.  I did my A levels in 1989 then graduated from the law faculty, Warsaw University. After my studies I completed my judicial training. Since 1996, I started working in the courts as a judge. At first in a regional court. From 2010, I worked in a district court. On November 18, 2020 I was suspended as a judge as a result of the decision – an illegal decision – by the disciplinary chamber of the Supreme Court.

Why were you suspended?

It all started during a late session of the Sejm, the lower chamber of the Polish parliament in December 2016. The proceedings concerned budgetary issues. Law and Justice moved the proceedings from the main chamber to a small room. That made it impossible for opposition members to enter. The entry was blocked.

The opposition informed the prosecutor about the alleged crime. The prosecutor is fully controlled by the justice ministry. It discontinued the investigation. In the Polish legal system, you can appeal such a decision. That appealed was heard and judged by me. I ordered the prosecutor to continue the investigation. I also informed the prosecutor about the possibility of committing a crime of false testimony by the  PiS parliamentarians who testified in this case.

I knew this would not be picked up by the prosecutors but I had to fulfil my duty.

So then three years later, the prosecutor asked the disciplinary chamber to lift my immunity claiming that I had committed a crime – letting the media into the court room when I was announcing the judgment – which is fully in accordance with the law. And secondly, I had committed a second crime: revealing information concerning the investigation during the time I was announcing the judgment.

Of course in these cases, no crime had been committed. Even students know that. It’s like a Kafka-esque trial. This is not about facts. And in the whole Polish judicial system and the legal literature, it’s all very clear that I had the right to make the judgment public.

In short that it what happened.

Are you going to appeal?

It’s very difficult to explain to someone coming from a different country where  the rule of law is respected. My lawyers have been trying to appeal. The disciplinary chamber is blocking every possibility. My lawyers have tried to appeal to another chamber of the Supreme Court. The disciplinary chamber took over the documents. They are not submitting the documents to the proper (appropriate) chamber of the supreme court.

What is the damage to undermining the judiciary?

For last five years, a kind of relativism is taking place. Actually, it’s the process of denying the true meaning of legal concepts and the whole system as such. The Constitutional Tribunal itself is acting partly illegally. Some of its members are not judges at all. They have been appointed in violation of the law. The actions of the government are illegal in themselves: they are aimed at suppressing the freedom of the judiciary. We are moving towards a system that is partly illegal and in which we are operating in. Actually it is about operating within an illegal system.

One cannot be sure of the meaning of legal terms anymore. Those terms are being interpreted by them (PiS). They are suppressing the judiciary. They are bringing in their own people into the judiciary, the courts and the judicial bodies – such as the National Council of the Judiciary. Those who absolutely obey thee orders are elected and appointed in an illegal way. This is about functioning in an illegal situation.

This damage continues?

Yes.  And what is more from interviews by top politicians it is very clear that this damage will continue and will be deepened. Kaczynski openly speaks about the need to complete the task of 'reforming' the judiciary.  So they are planning the next stage of the reform – which will be based on the structure of the courts. They want to introduce two structures. That's not the problem as such. The essence of the new structures is that they will review every single judge. This will be the way to get rid of independent judges. (Maybe a kind of lustration but in a different sense)

Why is PiS wanting revenge?

As regards the lustration, it’s about "Are you with us or are you Against us."  They are searching for traces of independent judges – what they did in the past (in the communist system) but also how are they behaving today. But most of the judges they attack are only aged about 40 years old…

This revenge is something much deeper. The aim of suppressing the courts and independent judges is about making the whole system – courts and judges - dependent on PiS which means Mr Kaczynski himself. If there are no independent courts, you can do whatever you want.

The courts that are dependent on PiS will be presented  to the people that it will be fully in accordance with the law. The courts will say everything is fine. They will be dependent on the government. Its goes round in a circle.

What next?

It’s also very easy to predict what will happen when the courts stop being independent.  Then the free media will be attacked because there will be no independent court to protect them.

Then the NGOs will be attacked because there will be no independent courts to protect them. The independence of academic institutions will be attacked. And there could be corruption over how the EU funds are spent because there will be judicial control over how the funds are spent. PiS needs the money to stay in power.

There will be no rule of law to stop PiS. They will have a free hand. This is what will happen.  What happens here is actually what is happening in Hungary, with one important difference. [Hungarian Prime Minister Viktor]  Orban has a constitutional parliamentary majority so he was able to change the constitution in accordance with the law.

But PiS hasn't got the majority but still regulates how he wants to change of constitution.

So they are ignoring the constitution of 1997?

(Tuleya picks up a copy of the Polish Constitution)

He refers to Article 187 of the Polish Constitution. It’s about the National Council of Judiciary. The article says the Council is composed of 15 members elected among the judges.

It was very clear from the beginning that these members of the Council are elected by the judges themselves.

PiS, through a regular bill, decided that the members of the Council be elected by the parliament – by Law and Justice – and installed on the Council. Essentially, they are political appointees. Nobody can do anything. Its relativism. The power is with those who are in power. Over 100 judges say that the law is being violated. And a PiS judge will say everything is fine. If you have a different opinion, it’s all relative. This works perfectly.

Mr Adam Tomczyński – a person with no significant judicial achievements or carrier - says that Law and Justice is right. And within a short time, he became a judge of the Supreme Court. That is the prize.

There was a famous case, one of the most dramatic ones. It involved Judge Jaroslaw Dudzicz^[14]

Some years ago he posted extremely anti-Semitic content on the internet. The prosecutor's office launched an investigation. Allegedly, he admitted it was him. Then he became a Law and Justice supporter.  The investigation led to nothing. And now it will soon be discontinued because of the passage of time. The prosecutor's office knows everything. But nothing happened. This is what you get when you are nice to the government.

What does PiS want? Why are they doing this?

This is the question we ask among ourselves, all the time. There are different theories.  For some, it about creating a nationalist-Catholic state. The other theory: Exploit the concept of nationalist Catholicism so as to get the power for the power itself.

Some are frustrated politicians and want to rule. I think it’s a mixture of the two theories. In any case, the brain behind this is Kaczynski.

And what does he really want?

If he is motivated by the revenge – that could be true.

Can this trends be stopped?

The one and only way is a firm reaction by the EU. In the form of financial penalties. This is the only argument the government understands.

What can be done?

The only thing that comes to mind is international pressure from public opinion and international judicial institutions and the need to mobilize others to act. It’s important to keep the issue on the agenda. The worse thing that can happen is that people will stop talking about it. That it will become the “new normal”.

So there is a proof that it works every time when there is any action by the EU side or the international community; there is a reaction by the Polish government. The media is not public anymore. But national. There is such hateful propaganda.

 Is public trust declining in the courts and the judiciary?

There's the role of the media.  And the judges are criticized for getting in the way for what PiS wants to do. This propaganda of course works.

And they are really trying to convince the society that the judges who oppose (PiS) are responsible for everything bad in this country.

There was  a platform of haters in the Ministry of Justice. The then deputy minister – [Lukasz] Piebiak who is a judge himself – they were actually stealing private information from the files of the judges and leaking them onto the internet with hateful messages. This was a platform of haters. A platform of trolls. It was revealed that this existed and operated inside the Ministry of Justice. When it was revealed, Piebiak was sacked. But he is back again.  They are trying to present judges in the worst possible aspects. Leaking about divorces, affairs, children.

In some ways its worse than the communist times. There are no investigations. They are trying to convince the public that the judges are the worst; that the judges are stopping the reforms. This is the other argument.

There is no legality/law to stop Law and Justice from attacking the free media, the academic institutions the NGOs. There'll be no (independent) courts to defend them.

We are in the middle of the full destruction of the rule of law.

What is Kaczyński’s agenda?

As already argued, the first element of the agenda is revenge for the perceived shortcomings of the 1989 Round Table talks. For PiS, The communist era was not expunged. But that is over three decades ago. Yet mortality means that that aspect of the communist past is over.

The anti-communist rhetoric and wish for revenge was coupled with the gradual and systematic emasculation of the judiciary because the judges and the courts got in the way of PiS’s own transformative agenda. This phase amounts to PiS taking over the power of the judiciary in ways that undermine the structures of accountability and the separation of powers.  

The assault on the judiciary, which Vera Jourová, EU Commission Vice-President for Values and Transparency called  “carpet bombing” and “demolition, not reform” has been unremitting.^[15]

The Minister of Justice and the Prosecutor General were merged giving the Justice Minister, Zbigniew Ziobro immense powers. “This allowed Ziobro to use prosecutors who are in his chain of command in his campaign to control judges,” argued Leah Wortham and Fryderyk Zoll.

The legislation gave Ziobro direct control in the judicial discipline process – “namely the power to select the people who investigate deliberate and rule on allegations against common court judges including, as with criminal prosecution, the power to intervene in individual prosecutions.” The previous government, functions has on purpose separated  the Minister of Justice and the Prosecutor General to reduce the possibility of political influence in prosecutions. 

PiS also took over the National Council on the Judiciary. Established in 1989, it’s role was to safeguard the independence of courts and judges through a system of checks and balances. Above all, PiS dismantled the independence of the CT and with it the essential checks and balances essential to safeguard the separate of powers and the constitution itself. In practice, PiS packed the CT with its own nominations.

PiS also established a Disciplinary Chamber of the Supreme Court. It is staffed by ten new judges recommended to the Polish President by the National Council on the Judiciary. As if that was not enough for PiS to gain control of the judiciary, in February 2020 the Polish Sejm, or parliament passed the Muzzle Act. It granted exclusive jurisdiction to rule on the independence and impartiality of a judge to the PiS-created and staffed Supreme Court Extraordinary Chamber of Control and Public Affairs. PiS has justified its so-called overhaul of the judiciary, firstly on the basis of Legal Impossibilism. And secondly, on the basis of its definition of sovereignty and seemingly independent of EU law.

The damage PiS has inflicted on the rule of law cannot be underestimated.

Here is how Professor Marcin Matczak, Associate Professor at the Institute of Theory of State and Law at the University of Warsaw, described the crisis affecting Poland’s judicial and constitutional order:

“Procedural justice … is the right to have a case heard by an independent court, the right to defense, the freedom from self-incrimination and the lawfulness of the evidence submitted. Substantive justice is achieved by giving every person what he deserves: penalizing the bad, rewarding the good, given the innocent peace of mind.” ^[16]

Procedural justice is an obstacle to PiS’s ‘ideology’ of revenge. It is an obstacle for PiS’s determination to shape the courts to fit their agenda. It’s as if PiS’s ultimate aim is to transform Poland from the post-1989 transformation. Even if PiS wants to turn Poland a country that could regain its sovereignty based on Legal Impossibilism, it’s a big gamble. If taken to its logical conclusion, Legal Impossibilism is about Poland challenging the acquis communautaire, the battery of EU legislation that Poland signed up to when it joined the EU on May 1, 2004. That’s when it ceded elements of sovereignty, especially with regard to the rule of law, to the EU.

Yet by robbing the Constitutional Tribunal of its independence, by imposing political control over the judges, by interfering in the independence of the Supreme Court over the issue of judicial independence and lowering the retirement age of judges (so as to remove them), PiS has questioned Poland’s agreement to join the EU. 

This toxic mix of revenge, of making the law subservient to the government and of challenging the basic rule of law and values enshrined in the EU treaty, is transforming Poland’s post-1989 transformation to a new kind of transformation that is leading towards an illiberal democracy.

Transformations from authoritarian or totalitarian regimes to a democracy are disorientating and painful. And democracy itself is messy, combative and competitive. Despite the latter, democracy is about using the political system and structures to find compromises.

However, what is happening in Poland, but also in several other countries in the region is how the democratic structures are being exploited to erode the rule of law.

The culture of consensus, of dialogue, of listening has been replaced, especially in Poland, with competing, vindictive narratives about the past. PiS’s assault on the public television channels, now under its controls, means that a common narrative, even of daily news events, does not exist.

There is only “Us”. There is only “Them”. This is too reminiscent of the communist era. A divided, bitter opposition doesn’t help matters. The attack on the independent media will move into academia where the curricula will be “corrected” to conform with PiS’s national conservative agenda. That’s the point of “Legal Impossibilism”. It gives the PiS carte blanche. 

PiS’s Europe.

In July 2021, PiS signed a joint declaration with 16 other populist right-wain parties. They included Hungary’s Fidesz Party, France’s National Unity,  Italy’s Italian League and Spain’s Vox. One of the aims is to build a strong representation in the European Parliament. The other is to establish strong nation states that challenge the authority of the European Commission. They want to reestablish a kind of national sovereignty.

Any country that joins the EU cedes some sovereignty. The four essential freedoms of the EU – free movement of trade, capital, goods and people inevitably mean a pooling of sovereignty on the European level. This is what a member state signed up to. A government also signed up to EU law. Not only that. The enlargement of the EU in 2004 in which eight former communist countries joined has been hugely important when it comes to dealing with the immensely difficult issue of transformation and the rule of law, anchored on constitutional structures.

The hope that the time was that, to quote Sadurski, “enlargement and the integration into the European Union will provide a stimulus for strengthening the institutional order in the countries of Central and Eastern Europe…the hope was that the EU would become a deterrent against the authoritarian and totalitarian tendencies of the CEE states and improve the quality of public administration and the justice system  (particularly helping to fight corruption. Put simply, it was believed that accession to the EU would help to consolidate democratic reforms, the system of human rights protection and the rule of law.  At the very least, it was expected that accession would make new Member States more resilient against worst threats should a crisis situation arise…”^[17]   

Civil society in Poland is resilient.

But as I argued, PiS’s use of the law is a direct assault on an independent judiciary and the very principles upon which the EU is built. This assault undermines Poland’s position in Europe. It weakens Poland’s ability to wield influence. It robs Poland of shaping the EU’s future direction.

Maybe PiS and its supporters in other EU countries want to weaken Europe by clawing back full sovereignty through its control of the courts, the media, education and the public sector. But it’s something more emotionally-laden: it is about the perception of victimhood and perception of occupation. Whether Zbigniew Ziobro believes it or not, this is how he criticized the rulings of the European Court of Justice, especially the one issued on July 15, 2021. He said the rulings “are not binding for the authorities wo act based on the Polish constitution. Submission to these rulings would be blatantly unlawful.” The EU, he added, was acting in a colonial manner, like a hostile Empire attacking Polish sovereignty.’^[18]  An Empire the EU is not.

What now?

The European Commission has threatened sanctions. “We will ask for financial sanctions if Poland does not remedy the situation by August 16 [2021],” said Commission Vice-President, Vera Jourova. “The rights of EU citizens and businesses must be protected in the same way across all Member States. There can be no compromise,” she added. In practice, under Article 19 of the EU treaty, if the treaty is violated by a member states, financial sanctions, amounting to 1 percent of gross domestic product can be imposed annually. That’s a lot of money. In Poland’s case, it’s about €5.2bn. PiS is still playing for time. 

There was some hope by Polish civil society activists that the Biden administration would be able to exert some influence on PiS. The latter had enjoyed the unequivocal support of former U.S. president Donald Trump. But with the Biden team so preoccupied with the crisis in Afghanistan, it’s hard to see any sustained attention being paid to Poland.  The EU has lost several chances to protect the rule of law, and not just with regard to Poland but to other member states as well. The rule of law is about Europe’s identity, its legitimacy, it’s credibility. It is what the member states signed up to. That is why what is taking place in Poland matters both to Poland and to the EU.

I began this essay with a reference to Afghanistan and Belarus. The yearning for freedom, for peace, for security, for human rights, is universal. It is not about the EU or the ‘elites’ imposing their views and policies on member states and non-member states. That’s too easy an explanation for the backlash taking place by movements inside and outside the EU. It’s something terribly fundamental: the quest for compromise, for dialogue, for listening, for stability. That, I think, is why strong, independent and transparent institutions are so necessary for countries and societies aiming to make the immensely difficult path towards democracy. ended

^[1] German Federal Office of Statistics

^[2] See European Stability Initiative. ESI Newsletter 8/2021. Also,  Leah Wortham and Fryderyk Zoll. “Weaponizing judicial discipline”  Fordham International Law Journal . pp 278-307

^[3] ESI op. cited

^[4] https://www.ceps.eu/the-troubling-reform-of-polands-foreign-service/

^[5] European Court of Justice  https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-07/cp210130en.pdf  PRESS RELEASE No 130/21 Luxembourg, 15 July 2021 Judgment in Case C-791/19 Press and Information Commission v Poland

^[6] https://www.reuters.com/article/us-poland-judiciary-eu-idUSKBN1Z81VV

^[7] https://www.cambridge.org/core/journals/german-law-journal/article/new-horizons-for-the-rule-of-law-within-the-eu/C60C39F5025ECD2070A6761EDE79959B

^[8] Warsaw, March 12, 2009. Global Edition of New York Times. Judy Dempsey and Alison Smale.

^[9] Wojciech Sadurski, Poland’s Constitutional Breakdown. Oxford University Press. 2019  pp 44-50

^[10] European Stability Initiative. ESI Background Paper, 5 August 2021. “Inside the System Ziobro Built.”

^[11] Interview with Fryderyk Zoll. 15 February 2021. Interview with Jacek Kuharczyk, October 30, 2020..

^[12] Worthan and Zoll

^[13] Interview, January 28, 2021

^[14]  https://www.timesofisrael.com/polish-judge-called-jews-a-despicable-filthy-nation-in-online-forum/. See also https://www.rpo.gov.pl/en/content/anti-semitic-posts-web-commissioners-intervention

^[15] https://www.reuters.com/article/us-poland-eu-judges-idUSKBN2020H3

^[16] Interview with Marcin Matczak, January 14, 2021. Lecture, Wolfson College, University of Oxford, March 8, 2018. “Poland: From Paradigm to Pariah?”

^[17] Wojciech Sadurski. “Constitutionalism and the Enlargement of Europe. pp 143 Oxford University Press  2012.

^[18] ESI, inside the House that Ziobro built. op. cited. Page 2.

The article gives the views of the author, not the position of the "Europe’s Futures–Ideas for Action" project or the Institute for Human Sciences (IWM).