In Poland, Law And Justice Threaten Law And Justice

Thousands gathered in protest outside court buildings in Poland last weekend, against the proposal of a draft law which would dismiss the entire Supreme Court with immediate effect and give the justice minister the power to decide which judges can stay.

Two other contentious bills, having passed through parliament on Saturday and now only requiring presidential approval, would see the members of the Council of Judiciary, from which supreme court justices are elected, nominated by parliament (and, therefore, the ruling party, PiS). With the Supreme Court under government control, critics fear the government that would be able to influence the validity of elections.

Poland has seen waves of protest rock the country since the election of the staunchly Catholic and populist Law and Justice (PiS) government in October 2015. Confirming the fears of many observers, PiS swept aside the liberal-conservative Civic Platform (PO), which had governed Poland from 2007-2015 and helped maintain economic growth, even as economic crisis shook the rest of Europe. However, austerity measures, coupled with a wiretapping scandal, and general complacency leading up to presidential and parliamentary elections, allowed PiS to win both the presidency and the legislature.

PiS’s éminence grise, party chairman Jarosław Kaczyński, nominally just an MP without an elected office, has led the government’s assault on democratic institutions. Shortly after winning office, PiS moved to limit the Constitutional Court’s power to rule on the constitutionality of laws, a bill that was unsurprisingly rejected by the court, but the government prevailed, citing the new law.

Aside from its unprecedented assault on the rule of law, PiS has opened its contempt for the independence of the media, civil society, and women’s right to decide over their own bodies. Not satisfied with some of the most draconian laws against abortion in Europe, in 2016 PiS tabled amendments to the law that would restrict access even further, even in cases of rape or incest. The only exception would have been to save the mother’s life. In a country where the Catholic Church wields enormous political influence, the abortion ban was seen by many as a way for PiS to repay its debt to the Church for helping it win the government.

Poles have been fought back. However, memories of partition, occupation, and dictatorship, and indeed the Solidarity movement, have ensured that the government’s illiberal turn will not go uncontested. Following the 2015 constitutional crisis, a group of citizens established KOD, the Committee for the Defence of Democracy, an NGO which has been very vocal in its opposition to the government, and which has been very successful in mobilizing civil society and organizing protests.

Similarly, during the abortion debate, mindful that abortion had been legal under communism, the move to restrict the law drove Polish women (and men), even further, to a breaking point. A ‘Black Protest’, organized over social media, brought thousands of pro-choice Poles onto the streets, with participants donning black and walking out of work to voice their opposition, eventually forcing the government to back down.

The goings-on in Poland have not gone unnoticed internationally. And yet, Poland has refused to cooperate with the Venice Commission, the Council of Europe’s constitutional monitor, which produced a damning report on the situation in Poland in early 2016. In January, the European commission launched an unprecedented official investigation into the rule of law in Poland, following repeated expressions of concern from the EU.

The latest news from Brussels is that the EU is ‘very close’ to using its most powerful sanction: the ‘nuclear’ option of suspending Poland’s EU voting rights under Article 7 of the EU Treaty. Poland would first have to be found to in breach of EU fundamental rights, and indeed Franz Timmermans, the Commission vice-president, has described the situation in Poland as grave. However, observers worry that triggering Article 7 would only further alienate Poland’s leadership, potentially aligning them with similarly illiberal Hungary.

As in any dispute, an amicable resolution tops confrontation. The EU cannot afford internal divisions in the face of Brexit negotiations and a resurgent Russia. Ironically, PiS, imagining enemies everywhere, is shooting Poland in the foot by fueling division in the EU, thereby giving Russia ample room to set diplomatic spoilers down the line. No matter the outcome, Poles can be counted on to call out their leaders’ missteps.