Poland’s democratic crisis

Poland became the success story for democratic transformation in eastern Europe. The first country to gain independence from the Soviet Union, it quickly established strong — if at times shaky — pillars of liberal democracy. In 2004, it joined the EU along with seven other former communist countries. It helped shape the bloc’s core institutions and pushed for greater unity between members in the East. For prospective EU members, Poland became the model to follow. That progress is now being dismantled. Since the election of the Law and Justice (PiS) party in 2015, we have witnessed the erosion of press freedoms, judicial independence, and civil society. The crisis made international news in July when the Polish government tried to push through a series of laws to seize control over judges and courts.

The EU has struggled to come up with a response. It has launched legal proceedings and continued to give strongly worded statements. It has made it clear to Poland that as an EU member, it must abide by the union’s treaties and live up to its values. But instead of seeking solutions Warsaw has merely doubled down. Whether it’s been over judicial independence, logging a primeval forest against the expressed wishes of the EU, or EU migration quotas, Poland has shown little interest in compromise with Brussels. The crisis leaves the country’s future uncertain. Whatever happens, the damage already done will have lasting effects. For the EU, events in Poland have not only questioned the bloc’s ability to enforce its own rules, but also the assumption that its membership pulls countries in one direction — toward liberal democracy.

How did we get here? What exactly is happening in Poland?

Targeting institutions

A populist right-wing party with its roots in the political turmoil of the 1990s, PiS was formed in 2001 by the Kaczyński twins, Jarosław and Lech (Lech would later die in a plane crash). They both watched over the fall of communism as members of Solidarity, the movement that steered Poland towards liberal democracy in 1989. The Kaczyńskis maintained, however, that this democratic transition was actually a facade; the result of collusion between the ruling liberal elite and ex-communists to hold onto power and take advantage of the Polish people. PiS was to be the vehicle to protect real Poles and deliver, finally, true independence.

To do this PiS has sought to change society from the ground up. Re-elected in 2015 on a platform of redistributive social issues — increased child benefit, a lower retirement age etc. –, the party has carried out an organised attack on, and attempted capture of, democratic and independent institutions in the name of reform. Jarosław Kaczyński passed up the role of Prime Minister — that went to the less controversial Beata Szydło — but he remains the de facto leader; pulling the strings from behind the scenes. His fingerprints can be found on everything from the efforts to cripple NGOs and civil society, to the undermining of press freedoms. Prominent human rights groups have found their state funding cut and their organisations smeared. New media laws have resulted in public television and radio management being replaced; the channels now churning out state propaganda. A toxic and polarising environment has emerged.

Perhaps most worrying has been the attack on the judiciary. First to be targeted was the constitutional tribunal — the body which rules on the constitutionality of the government. In 2015 PiS and an acquiescent President Duda tried to install five of its own judges onto the 15 member tribunal. A year of stalemate followed. The tribunal was continuously challenged by the new government, who even passed legislation to frustrate its work. The standoff culminated in its complete takeover last December. As the head of the tribunal stepped down, normal re-election processes were deliberately evaded. Instead, President Duda simply appointed a new ‘acting head’ — which had never been done before — who went on to confirm the PiS appointed judges. The acting head then become permanent, and any independence the tribunal had left was gone.

This leads us to what happened just over a month ago. At the end of July three laws were passed which sought to further undermine the judiciary. The first focused on the National Council of the Judiciary (NCJ), the body that appoints judges. The crux of the law was to fire 15 of its members and allow the PiS controlled parliament to pick their replacements. The second law gave the Minister of Justice the power to fire, and then appoint, chief judges across all the lower courts. The third, and most controversial, allowed for the sacking of all Supreme Court judges, apart from those the government wanted to keep. Taken as a trio, the laws worked together to hand unprecedented judicial control to the government. All that was needed was presidential approval.

Tens of thousands of Poles streamed out onto the streets in protest. The scenes were reminiscent of last October when PiS buckled under pressure and u-turned on a bill that would have banned abortion. The protests clearly had an effect on Mr Duda, the pro-PiS president. To the surprise of almost everyone, he vetoed two of the three laws he had been expected to simply rubber stamp. What will happen next? It’s not clear. Domestic pressure and international concern clearly spooked the President. But any praise should be tempered. The law concerning the lower courts will go ahead. Mr Duda plans to put forward his own amended version of the other (vetoed) laws soon. Deciphering loyalties isn’t straightforward. But it is worth remembering that this is a president who oversaw the capture of the constitutional tribunal less than a year ago.

Conspiracies and missed opportunities

If tensions have cooled it will likely be temporary. Mr Kaczynski has shown little sign of being prepared to back down. He called the presidential vetoes a serious mistake that will need to “quickly be forgotten”. For Mr Kaczyński, the laws are verging on non-negotiable. They are part of his — and PiS’s — conspiratorial interpretation of Poland’s failed transition to democracy. There may be some tweaking possible, dressed up as compromise. But Mr Kaczyński maintains that the judiciary is stacked with communists, “controlled by lefties… subordinated to foreign forces”. Even the protesters are described as pawns of a larger conspiracy to deny Poland its sovereignty.

It’s not just the judiciary. Since the fall of communism Mr Kaczyński has waged a vendetta against those he regards as being anti-Poland; a definition wrapped up in PiS’s own politicisation of the country’s democratic transition. Mr Kaczyński believes it was a sham — those who once sought to prevent Poland reaching its full potential remain committed to that task today. This is why PiS see various institutions — the courts, the media, the military — as legitimate targets to fill with their supporters. In an interview with Reuters Mr Kaczyński even said that the changes to the constitutional tribunal were necessary to “ensure there are no legal blocks on government policies”. The law, much like the media, exists to supplement those in power. And much like other populist parties in Europe, PiS regard themselves as representing the people. They paint those who challenge the party’s platform as challenging Poland. And if you’re challenging Poland, why should you be given a voice?

This gives us an insight into the conflict between PiS and Brussels. Several EU investigations have been launched, including the untested rule-of-law procedure. Verbal warnings have repeatedly been given. Yet Brussels has failed to make any progress. At the end of July the European Commission’s Frans Timmermans announced that Brussels was “very close” to triggering Article 7 of the Lisbon Treaty in response to Poland’s abuse of core EU values. Often described as ‘the nuclear option’, Article 7 can eventually lead to EU members facing sanctions. But Warsaw maintains there are no issues to resolve; that its actions are just and necessary. “There is no conflict on values between the Commission and Poland — it is about how to interpret these values”, said the Polish European Affairs minister.

The EU has had plenty of warning. PiS has continually snubbed constructive dialogue. EU comments have been belittled and ignored. The frustrating reality is that the EU should have, with strong conviction, acted long ago. Instead, PiS have been allowed to consolidate more control. The EU must take the blame for its inaction. But it is also clear that PiS has taken lessons from another EU country in how to interact with, and ignore, Brussels. That country is Hungary.

The Budapest connection

While what is happening in Poland has its own very specific roots, the influence of Viktor Orbán, Prime Minister of Hungary, cannot be ignored. When PiS lost the 2011 election Mr Kaczyński announced “the day will come when we will have Budapest in Warsaw”. Since returning to power in 2010 Mr Orban has written a new constitution, filled formerly independent institutions with loyalists and packed the constitutional court with pro-Fidesz (Mr Orbán’s party) judges. A new media council has curbed critical voices. Advertisement (or lack of) has been used as an economic weapon to cripple independent publications. A recent Freedom House report sets out that “high level corruption has become a key feature of the regime”. Mr Orbán talks of renewal and righting moral decay. The reality is that he is presiding over a systematic backsliding of democracy where institutions are captured and scapegoating of the ‘other’ has become the norm.

The situation has deteriorated this year. In March a strict education law was passed which could see the Central European University (CEU) close. Established by American-Hungarian philanthropist George Soros, the CEU is an independent and critical champion of free speech; everything Mr Orbán detests. It may now pay the ultimate price. A new NGO law was passed in June. It also targets foreign funded organisations working in Hungary. Those that receive more than €24,000 annually from outside the country will have to register as ‘foreign-supported’. There can be legitimate concerns about transparency. But attacking funding sources like this is a common tactic used to intimidate and undermine civil society. To cap it all off, new laws were passed in March which allow for asylum seekers in Hungary to be detained in shipping containers. The United Nations says this violates European and international law. Mr Orbán simply calls migration “the trojan wooden horse for terrorism”.

In response the EU has rolled out various legal proceedings against Hungary. Mr Orbán’s government has repeatedly been told its laws and behaviour are incompatible with the union. Budapest has shown little interest in dialogue. It even launched a publicly funded billboard and questionnaire campaign, ‘Let’s Stop Brussels!‘, to attack the EU. Mr Orbán has played a canny hand. Under pressure he has portrayed himself as a misunderstood reformist. But the EU seems to have fundamentally misunderstood the extent to which Mr Orbán has dismantled democratic institutions. Brussels has too often focused on specific, isolated, infringements rather than the broader accumulative change. This should have been a wake up call for the EU. It should have provided lessons for how to deal with Poland’s intransigence. It hasn’t. Instead, Brussels has allowed a relationship to blossom between the two countries over a shared and toxic political philosophy which has only emboldened Warsaw.

An uncertain future

Poland and the EU appear to be on a collision course. Exactly what will happen next is unclear. But for PiS and Mr Kaczyński, overhauling the judiciary is an integral part of a much broader programme of resetting Polish society. Given previous behaviour and current rhetoric, it is difficult to see a compromise. The EU’s multiple red lines will soon reach a tipping point. The Article 7 process may finally be started. Yet for a country to be sanctioned or be stripped of its voting rights, all EU members must agree. Unsurprisingly, Hungary has said it would veto any attempt to punish Poland. If Article 7 fails, the EU will need to get creative. But whether it seeks to flex its muscles against Poland through financial penalties or marginalisation within EU institutions, it is clear that an isolated Warsaw on Europe’s fringe suits no one. Without a change of direction from PiS however, there seem few alternatives.

There are broader issues at play here, too. For the EU, the crisis reveals that for all the worry about the likes of Marine Le Pen, Brexit, and Donald Trump, the real — and very much live — threat comes from those already in power in EU. An assault on liberal democracy is happening right now, within the bloc. Unfortunately, Brussels appears ill-equipped to deal with it. This raises some uncomfortable questions for the EU — and not only because its inaction has, in part, led us to this cliff edge. The EU is meant to be about values and principles. Why has it been so cautious in defending them? In doing so it has avoided the responsibility of upholding its own treaties. This diminishes the EU’s moral authority. Brussels has (quite rightly) used its platform to criticise governments around the world who attack the free press and civil society. It will undoubtedly lose credibility if it seen to look on as a member state does the same.

For now the Polish population remains unambiguously pro-EU. Tens of thousands of Poles have marched in protest against PiS’s assault on their democracy. What happens between now and the 2019 parliamentary elections will do much to decide the country’s future.

As for the EU, while there are limits to what it can do, it must play its role. Many Poles thought the union was meant to act as a democratic firewall against governments accumulating unchecked power. Brussels should trigger Article 7. It should also prepare more flexible, less politically charged, alternatives to help enforce its rules. Then it should turn to Hungary. If it doesn’t, it will only reinforce the belief that judicial independence, press freedoms, and a vibrant civil society can be trampled on inside a union which is supposed to protect those very principles.

August 2017