By Stanley Bill
After two years of finger-wagging, the European Commission has finally taken decisive action against Poland’s government for undermining the rule of law. Today the Commission triggered the “nuclear option” of Article 7 in response to two recent judicial reform bills. If four-fifths of the EU’s member states support the move – which seems possible given earlier declarations from both Germany and France – then Poland will receive a formal warning for the ‘clear risk of a serious breach’ of EU law, probably in the early months of the new year. The next steps in the process could eventually lead to the suspension of EU voting rights, though such a move would require a unanimity that remains unlikely in the face of a promised Hungarian veto. Nevertheless, the Commission’s unprecedented decision represents the most serious of many recent blows to the country’s international image and standing. A shining symbol of transformational success only a few years ago, Poland is now officially a major internal problem for Europe.
Earlier this month, the independent Venice Commission strongly criticized the proposed laws as a serious threat to the independence of the judiciary and the separation of powers. Though the new legislation represents an improvement on the bills vetoed by President Andrzej Duda in July, it still gives power to the parliament and the president in the appointment of a reconfigured Supreme Court and National Council of the Judiciary. Whereas the July bills would have put the entire Supreme Court at the mercy of Justice Minister Zbigniew Ziobro, the new legislation threatens around 40% of its judges with early retirement, placing their fate in the president’s hands. Meanwhile, the whole body of the National Council of the Judiciary – which is constitutionally tasked with “guarding the independence of courts and judges” – will be replaced under new rules giving the parliament decisive power. This time, President Duda has vowed to sign the bills into law (he drafted them himself). Apart from the Article 7 procedure, the European Commission has also referred the legislation to the European Court of Justice, which can impose hefty fines.
In themselves, the two bills alone would probably not have provoked such a strong response. Controversial elements within them are arguably defensible. For instance, government supporters point to the fact that many established democracies have systems in which politicians appoint judges in one way or another. But such defenses ignore the overall context of established checks and balances within these other systems. As the Venice Commission insists in its damning opinion, it is the cumulative effect of the proposed laws against the background of various other changes introduced over the last two years that poses such a serious threat to the separation of powers in Poland.
The European Commission has followed a similar logic of cumulative effect in today’s decision, as commissioner Frans Timmermans made clear. The new bills may not themselves have warranted the very strongest action, but they represented the proverbial “final straw.”
Poland’s government, run from behind the scenes by Law and Justice (PiS) party leader Jarosław Kaczyński, has been engaged in a determined campaign of “kielbasa tactics” against the country’s democratic institutions. Since gaining power in October 2015, the government has been slicing off one piece of the institutional framework after another, quashing potential resistance to a democratic mandate it views as absolute.
Some of the slices of this Polish institutional sausage have been thicker and meatier than the more familiar model of “salami tactics” would convey. Indeed, PiS began with the biggest chunk of all by incapacitating and then stacking Poland’s Constitutional Tribunal. Since then, the party has tackled the civil service, public media, state-owned companies, state cultural institutions and the National Electoral Commission. Some of these measures have reflected the negative practices of previous governments, but the scale, scope and speed of the changes have been unprecedented.
All this slicing and dicing serves Jarosław Kaczyński’s long-held aim to “complete” Poland’s democratization process by installing “a new state apparatus” and “a new social hierarchy” headed by a reconstructed Polish “elite.” In practice, this has meant disarming institutions he perceives as hostile to his plans. Though Kaczyński himself is a politician of conviction who undoubtedly believes some of his own rhetoric, these practices have conveniently concentrated extraordinary power in his hands. Despite his party having won only 38% of the vote and despite holding no constitutional office himself, Kaczyński has set up an ad-hoc system in which he can govern without the hindrance of full democratic controls.
New Prime Minister Mateusz Morawiecki’s international defense of the judicial reform bills has clearly confirmed that his appointment heralds no substantial change of course. Indeed, his replacement of Beata Szydło was probably intended as a sideshow distraction from the passage of the controversial court bills (while also reflecting a tactical pivot towards the domestic middle class, economic issues and foreign relations).
Irrespective of the political smokescreens, the government’s “kielbasa” tactics have been effective because each separate slice has not proven large enough to provoke the most uncompromising external response – until now.
The shape of Polish populism
Domestic reactions to the hobbling of Poland’s democratic institutions have been more ambivalent. PiS still has less than 50% support, but its popularity has continued to grow throughout the latest controversies. The reason for this relatively strong backing is simply that the party and its allies have been more energetic and successful in tackling real social problems in Poland than any other government since 1989. They have responded to the most vital issues for many voters, coupling generous social spending with impressive economic performance (thanks to both good management and good fortune). At the same time, the party offers a clear vision of Poland as a national community united by common economic and cultural interests against the intrusive forces of globalization supposedly in league with the country’s own neoliberal elites.
PiS’s populism both predates Donald Trump’s American version and differs from it in one crucial aspect. Trumpian populism harnesses the rage of genuine economic pain, but redirects it in non-economic directions. Trump’s only solution to the rust-belt pain of globalized industrial production has been to peddle fantasies of an earlier America, blaming immigrants, minorities and liberals who won’t say “Merry Christmas.” Meanwhile, in the White House, he has done nothing to stop the pain itself, instead handing out generous tax cuts to the rich.
PiS has responded to economic pain in provincial Poland in two mutually-reinforcing ways. The first is a local version of the redirection strategy: PiS blames liberal and post-communist elites for Poland’s rising inequality, while fanning the flames of xenophobia through anti-immigrant rhetoric and nationalistic bluster against foreign “exploiters,” Germany and the EU. However, the government has also acted decisively to stop the economic pain. Its policies have significantly changed the lives of many of Poland’s most marginalized and vulnerable citizens. In this sense, PiS’s populism works with twofold force: it uses the repertoire of scapegoating to harness the negative emotions generated by economic pain and inequality, but it also acts decisively to ameliorate the pain itself.
PiS will almost certainly win the 2019 parliamentary elections, probably with an expanded majority. The current ineptitude of the shell-shocked opposition parties is not just a question of a talent deficiency, but also a direct result of the government’s successful double approach to social frustrations. In this climate, the main center-right, liberal opposition parties have had no obvious room for maneuver, since the professional, metropolitan middle classes to which they most obviously appeal are not large enough to give them power. The opposition’s reaction to this strategic impasse has been to retreat into increasingly shrill and domestically ineffective cries of tyranny.
Legal institutions seem abstract and distant to most voters, especially those outside the large cities. More specifically, courts are unlikely to inspire broadly passionate support in Poland (a poll last month found that 81% want judicial reform, though other surveys suggest that PiS’s particular proposals have not been popular either). Meanwhile, the government has shown few other signs of hard authoritarian leanings. The last two years have not seen arrests, show trials, disappearances, murders or heavy-handed police tactics of the kind so common in Russia and Turkey. Instead, they have seen a steady accumulation of instruments that might allow such measures to be adopted in future without institutional resistance. It is doubtful that Jarosław Kaczyński wishes – or needs – to steal any future elections. Nevertheless, the problem remains that if he chose to do so, there would be little to stop him in the absence of a fully independent National Electoral Commission, Supreme Court and Constitutional Tribunal.
Irrespective of Kaczyński’s plans and motivations, the current ruling party has set a terrible precedent. If any future government dislikes the configuration or personnel of Poland’s key democratic institutions, it may simply rearrange them.
These dark potentialities suggest that the European Commission’s intervention might well be justified in principle. But how effective will it be?
First of all, it seems unlikely that the Commission’s decision will lead to specific consequences, as Hungary will almost certainly block any concrete action. Second, the prospect of punishment may not induce PiS to change its course. Although the appointment of the more presentable Morawiecki as prime minister suggests some concern for Poland’s deteriorating relations with Europe and international image, Kaczyński has repeatedly emphasized that he has no intention of backing down. He views judicial reform as a vital plank of the final “democratization” of Poland, and any submission to foreign disapproval would be a betrayal of this aim. In an important speech in July this year, Kaczyński declared “the question of sovereignty” and “the right of Poles to repair the Republic” as the key stakes in his government’s struggle with internal and external “elites” profiting from “the exploitation of Poland.” Pressure from Europe might force a tactical climb-down, but it is difficult to imagine a genuine retreat from the broader strategy.
Third, while a domestic backlash against the government remains possible (as in the debacle of its failed campaign against Donald Tusk), any concerted action from the EU might also serve to reinforce PiS’s domestic narratives and strengthen its support. A servile state media will certainly help the party to convey its message. Many swing voters and some opposition supporters might find it hard to accept punitive measures (even within the opposition Civic Platform party the decision of its members in the European Parliament to vote for action against Poland proved divisive). Serious sanctions would test the depth of the country’s pro-EU attitudes, making it easier for PiS to push the narrative of a Europe hostile to Poland’s independent interests. If proposals to limit Poland’s access to EU funds were to gain traction in the next budget talks, the conflict might even provide a further source of economic pain, thus opening a new supply of PiS’s key political resource. On the other hand, this scenario might also be very dangerous for the ruling party, as a great many Poles benefit from European structural funds in various ways. A major conflict with the EU would carry serious political risks.
Almost every conceivable conclusion of this process would further weaken Europe. A Hungarian veto would expose the impotence of the EU’s executive and the hollowness of its trumpeted values. The resulting escalation of the conflict between East and West would increase the sense among older members that the EU’s eastern enlargement had been a mistake, accelerating the move towards a two-speed Europe. On the other hand, if Viktor Orbán were to betray Kaczyński – as he has done before – then Poland would be isolated, and the EU would find itself in an unprecedented punitive conflict with one of its largest members in a period already bedeviled by other problems. This outcome would be a disaster for Poland, but also another significant crisis for the whole post-Brexit European Union.
Only one potential outcome would be favorable for both Poland and Europe: a rethink from the Polish government in further dialogue with the Commission. Such a course of action seems extremely unlikely at present, with no prospect of fresh presidential vetoes. To be clear, a back-down would not have to mean a resignation from judicial reform. Anyone who has spent time in Poland has heard stories of the dysfunctionality and corruption of the courts. Most Poles want genuine change, and they deserve to get it. But surely the government can deliver this reform without subjugating judges to undue political influence, and without ramming legislation through the parliament in the middle of the night with no proper consultation.
Now is the time for Poland’s ruling party to understand that the country’s broader interests are not identical with its own. The stakes are getting higher.