Law and Justice in Poland

Image: Lukas Plewnia | CC 2.0

KleptoCast 23: Casey Michel speaks with Central European University’s Maciej Kisilowski on recent Polish illiberalism – and how the EU and the U.S. are reacting. (You can also listen and subscribe on iTunes).

By Casey Michel

For much of the past decade, illiberal policies within Europe have remained largely confined to one leader, and one country: Viktor Orban’s Hungary. With its authoritarian majoritarianism, its campaigns against independent media, and its Kremlin-esque moves against civil society, Budapest has shouldered the mantle of Europe’s black sheep, criticized by Brussels and Washington alike.

However, Budapest’s run as the sole illiberal outpost in Europe has rapidly come to a close. Over the past two years, Poland, led by the Law and Justice (PiS) party, has implemented a Hungary-style democratic rollback – even outpacing Budapest as it pertains to certain anti-democratic policies. Stewarded by PiS chief Jaroslaw Kaczynski and in the face of a floundering Brussels, Warsaw has spear-headed moves to eliminate non-government media, and begun proposing legislation that would effectively neuter an independent judiciary. The government has even wrangled to take over the country’s WWII museum, re-focusing the institution on, as the New York Times reported, “a more nationalistic perspective.”

All told, according to the European Commission, Poland faces a “systemic threat to the rule of law,” one directly mirroring developments in Hungary. As the executive director of the Center for Euro-Atlantic Integration and Democracy said, “Recent Polish actions to increase government control over the media and the judiciary were inspired by Hungarian examples.” But the Polish threat that has moved far more swiftly than Budapest’s, and at the current rate threatens to eclipse even Orban’s authoritarian push by the end of year.

Pressing judgments

Having gained a narrow majority in Poland’s October 2015 elections, PiS, in a nod toward fellow-travelers in Budapest, promptly turned its sights on the country’s independent media. The move was multi-fold, but circled on silencing or mitigating potential critics of government policy.

After replacing the leadership of both public television and radio broadcasters, the country’s flagship public news program has, as a report from Freedom House recently found, “become a mouthpiece for the PiS government, lauding its daily successes at home and abroad.” (One of the replacements was, unsurprisingly, a former PiS lawmaker.) The government further created a “National Media Council,” which “will give the governing party continued control over the public broadcasters’ management.” Such move already appears to be paying dividends; following recent protests, Poland’s public broadcaster accused the opposition of attempting to hatch a coup. Lawmakers have even discussed the potential of wresting control of Polish media from foreign owners and investors.

The changes in Poland’s media landscape haven’t gone unnoticed elsewhere. For instance, in just the past two years, Poland has fallen a breathtaking 36 places in Reporters Without Borders’ (RSF) Press Freedom Index, now scoring worse than countries like Haiti, Papua New Guinea, and Tonga. Wrote RSF, PiS turned public media “into propaganda outlets. Several independent publications opposed to its reforms have been throttled economically. Now, despite widespread criticism, the government has announced plans to ‘re-Polishize’ foreign-owned media outlets.” Polish authorities have even gone so far as to begin pushing for prosecution against journalists noting links between Polish ministers and Russian intelligence services – even while reports surface of ties between the Polish deputy defense minister and pro-Kremlin far-right groups.

But where Warsaw’s attempts at targeting critical media echo Hungary’s parallel efforts, the PiS’s recent campaign against the country’s independent judiciary has moved at a substantially quicker clip, exceeding even attempts out of Budapest. As Freedom House found, PiS passed some seven amendments pertaining to the country’s Constitutional Tribunal, a body tasked with resolving constitutional disputes, by shifting both the “composition and procedures” of the tribunal. Even when the Constitutional Tribunal found such measures unconstitutional, “the government refused to publish the rulings, thereby preventing them from coming into effect.” PiS then proceeded to ignore procedural regularities in placing a PiS-affiliated judge as the tribunal’s president. All told, as POLITICO detailed, PiS has “methodically taken over” the body.

However, PiS’s move against the Constitutional Tribunal was merely a foretaste of its latest moves against Poland’s judiciary. In just the past month, PiS has pushed a series of reforms that would effectively allow the ruling government to stack judges at their bidding – and dismiss judges who issue findings contrary to PiS’s wishes. The latest move would allow PiS to elect nearly every member of the National Council of Judiciary (KRS), a group heretofore comprised primarily of lawyers selected via professional associations. According to an analysis from Deutsche Welle, “In the future, half of the KRS’ membership is to be made up of members of the Sejm [Poland’s lower house of parliament], and the other half approved by Sejm-selected judges. Since the PiS holds absolute majorities in both houses of parliament, opposition politicians fear a return to a judicial system similar to that which was in place before the fall of communism.”

Further reforms would allow the justice minister, Zbigniew Ziobro, to fire judges at will – and would allow him “the power to replace thousands of presiding judges with his own acolytes.” As the Council of Europe’s human rights chief tweeted last week, Poland’s moves are a “[m]ajor setback for judicial independence.” In protest, a coalition of nearly 200 artists and scientists signed an open letter, according to the New York Times, calling the reforms a “coup d’état.”

European disunion

At this point, there is little doubt remaining of PiS’s authoritarian leanings – even while Poland’s president vetoed some, though not all, of the most recent legislation targeting the country’s judiciary. But as with the Hungarian precedent, European bodies appear lethargic in response. As EUROPEUM Institute for European Policy Vladimír Bartovic recently said, Hungary and Poland, had they remained outside the European Union’s confines, would likely not have been able to join the EU. And yet, Brussels seems once more ill-suited to dealing with the democratic backsliding of one of their own. (Washington’s silence on Poland’s back-sliding, especially following U.S. President Donald Trump’s trip to Warsaw, has likewise been deafening.)

But with Poland’s recent push to dismantle its independent judiciary, Brussels may finally be waking to the authoritarianism roiling Warsaw. With the European Commission having already issued multiple statements and recommendations pertaining to PiS’s assault on the country’s judiciary, European Commission Vice President Frans Timmermans stepped forward this month to point toward the potential for escalation from Brussels. Noting that the current proposed legislation in Warsaw “would abolish any remaining judicial independence and put the judiciary under full political control of the government,” Timmermans said that a third rule-of-law recommendation would be forthcoming and that preparations for “infringement procedures for breach of EU law” has already begun. Lastly, and perhaps most importantly, Timmermans added that, “given the latest developments, we are coming very close to triggering Article 7” – an unprecedented move to revoke Poland’s voting rights.

Article 7’s trigger, at this point, remains far from certain, but its consideration points to the gravity with which Brussels is finally viewing Poland’s authoritarian transformation . While policy-makers in Washington would be well-served to extend their criticisms of Hungary northward to Poland, legislators in Brussels must drop whatever remaining glimmers of hope they hold about PiS’s authoritarianism somehow stalling. After all, as Timmermans said, “This is no matter only for the Polish people. What is happening in Poland affects the Union as a whole. All of us, every single Member State, every citizen of the Union.”

Casey Michel has worked as a journalist and researcher in the United States and former Soviet Union.