Agencja Gazeta / Mieczyslaw Michalak via REUTERS A protest against judicial reforms in Wroclaw, Poland, July 2017. 

The Assault on Poland's Judiciary

The Danger Is Not Gone, and the EU Must Step Up

Poland’s democracy is in peril. Since coming to power in 2015, the Law and Justice party (PiS) has subverted the country’s democratic constitutional order and sought to replace it with a form of competitive authoritarianism. The party began its assault on liberal democracy by neutering and seizing control of the Constitutional Tribunal, Poland’s highest court, last year. This month, PiS lawmakers sought to complete their takeover of the judiciary with three controversial pieces of legislation. One measure would have let the minister of justice oust the Supreme Court’s current members and replace them with party loyalists. The second would have given parliament control over the National Council of the Judiciary, the previously independent body that appoints and promotes Poland’s judges. A third proposes to give the minister of justice the power to dismiss and appoint the heads of Poland’s lower courts.

Facing pressure from tens of thousands protesters and the threat of sanctions from the European Union, Polish President Andrzej Duda said on July 24 that he would veto the first two bills. But the threat to constitutional democracy is far from over. Duda has signed the third bill into law, and the PiS government will likely respond to his vetoes by amending the legislation slightly before trying to push it through again.

PiS lawmakers argue that the judicial reform measures would improve a corrupt and inefficient court system that is controlled by unaccountable elite judges and that has not been overhauled since the communist era. In fact, although some reforms may indeed be warranted, PiS’ proposals were clearly designed to consolidate the party’s rule. With control of the judiciary, PiS would be free to impose restrictions on independent media and civil society groups. It could also manipulate future elections in its favor without worrying that the Supreme Court, which determines the validity of election and referenda results, will stand in its way.

If PiS’ latest moves have brought Poland to a critical juncture, they also present a moment of truth for the European Union. Will the EU let another member state slide from democracy to electoral autocracy, as it has done in the case of Hungary? That outcome would not only make a mockery of the EU’s claims of being a union of values, it would also constitute a major rupture in the bloc’s legal order. The European Union is built on the rule of law and depends on the cooperation of independent national judiciaries to enforce EU law. If PiS seizes control of the judiciary, then the EU will simply not be able to function in Poland.

A session of the Constitutional Tribunal in Warsaw, April 2016.

A session of the Constitutional Tribunal in Warsaw, April 2016.

NO EXCUSES

This isn’t the EU’s first encounter with democratic backsliding in a member-state. Over the last seven years, the EU dithered as Hungary descended from liberal democracy to electoral autocracy under Prime Minister Viktor Orban. Many EU leaders may have initially underestimated how far Orban planned to go in constructing his illiberal regime. Some also argued that the case for EU intervention in Hungary was complicated by the fact that Orban’s Fidesz party entered government with a parliamentary supermajority that empowered it to rewrite Hungary’s constitution, giving it a legal basis for its consolidation of power. To be sure, many of the Orban government’s actions—from its crackdown on the media and its attacks on civil society organizations to its restrictions of judicial independence—have violated the EU’s fundamental values. But the Orban government established its control in a legalistic fashion, and that made it tricky for officials in Brussels to oppose it.  

In Poland’s case, EU leaders have no such excuses. Unlike Fidesz, PiS did not come to power with the supermajority needed to amend the constitution. Instead, PiS has brazenly attacked independent courts—first by seizing control of the Constitutional Tribunal and most recently by attempting to capture the judiciary as a whole. Moreover, European leaders cannot plead ignorance as to PiS’ intentions. Jaroslaw Kaczynski, the populist firebrand who heads PiS, has made it clear he intends to consolidate the party’s grip on power by following Orban’s playbook. As early as 2011, Kaczynski lauded the Orban model and promised that the day would come when “we will have Budapest in Warsaw.” Orban and Kaczynski met three times during PiS’ first year in office; in a meeting in September 2016, Kaczynski told Orban, “You have given an example and we are learning from your example.” 

The stakes for the EU could not be higher. Respect for the rule of law is not just a core value of the EU, it is the foundation on which the Union is built—the key to the protection of all EU rights and fundamental values. Although the EU has its own courts in Luxembourg, EU law is mostly enforced by national courts. As European Commission Vice President Frans Timmermans recently emphasized, when Polish courts enforce EU law—from the EU rights of Polish citizens to the rights of companies doing business in Poland—they act as the “judges of the European Union.” As a result, attacks on judicial independence in Poland undermine the structure of EU governance. The EU’s ineffectual response to Orban’s subversion of judicial independence and liberal democracy in Hungary appears to have convinced Kaczynski that he could get away with the same thing in Poland. If the EU once again fails to stand up for its core values, it would invite other aspiring autocrats across the bloc to follow suit.

Taking down a banner of PiS leader Jaroslaw Kaczynski in Warsaw, October 2007.

Taking down a banner of PiS leader Jaroslaw Kaczynski in Warsaw, October 2007. 

MORE THAN WORDS

In some respects, the political conditions for EU action against Poland seem favorable. For starters, Kaczynski’s PiS has far fewer political allies on the European stage than Orban’s Fidesz does. Fidesz is a member of the powerful European People’s Party (EPP), a pan-European center-right bloc that is the largest group in the European Parliament; EPP leaders in that body have steadfastly defended Orban and sought to block EU action against him. PiS, on the other hand, belongs to the European Conservatives and Reformists, a far smaller and weaker nationalist party group, in which the British Conservatives are the only other major party. There have already been indications that EU officials are more willing to push back against Poland’s backsliding than they have been against Hungary’s. The leaders of all the major parties in the EU Parliament recently issued a letter denouncing PiS’ attacks on judicial independence and calling for EU action. And last week, Timmermans warned the Polish government that the Commission was “very close” to triggering a disciplinary mechanism for violations of the EU’s fundamental values—the so-called Article Seven procedure, a measure that can ultimately result in the imposition of sanctions on a member government, including the suspension of its EU voting rights.

Duda’s vetoes were good news, but there is a risk they may relieve the pressure on EU leaders to act. Once the outrage over the proposed legislation subsides, PiS lawmakers will probably try to take over the judiciary through different means—and Duda may let them. That is why the EU should keep up the pressure. So far, PiS has ignored the EU’s calls to restore the independence and authority of the Constitutional Tribunal. Brussels should capitalize on the anger over PiS’ latest attacks on the judiciary by signaling that it will trigger the Article Seven procedure if PiS fails to restore the role of the Tribunal or makes any renewed attempt to undermine the judiciary’s independence.   

Many observers argue that triggering the Article Seven procedure would be futile, since imposing sanctions would require unanimous agreement among national leaders in the EU Council, and Orban has already pledged to prevent that outcome. But such claims are unconvincing. If the Orban government were really the only impediment to action, then other states could circumvent his opposition by simultaneously launching a long overdue Article 7 procedure against Hungary, stripping Budapest of its veto.

The real question is whether European leaders have the political will to defend the EU’s fundamental values. So far, most national leaders have kept remarkably quiet as Hungary and Poland have drifted away from liberal democracy. Although formal sanctions under Article 7 will likely never be imposed, the Commission should still trigger the procedure to force Europe’s national leaders to take a firm stand on the situation in Poland. Even without unanimity, if the overwhelming majority of EU leaders act together and denounce the PiS government’s actions, it would bolster the defenders of constitutional democracy in Poland and send a powerful message to PiS’ leaders. EU leaders should also revive a recent German proposal to condition future EU funding on member-states’ adherence to democratic principles, making it clear that any autocratic member governments—in Warsaw, Budapest, or elsewhere—will have their EU funding suspended.

In recent years, the EU has proved willing to meddle in the domestic affairs of its member-states to enforce widely reviled fiscal rules. Yet it has failed to stand up for EU treaty requirements regarding democratic values and the rule of law. It is time for a new message. Ultimately, only the citizens of Poland have the power to preserve their democracy, but they need all the help they can get, and the EU must show that it stands with them.

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