It’s Time to Play Hardball With Poland

The Polish government published a white paper last week aiming to explain its recent judicial reforms. Contrary to expectations in Brussels, the paper demonstrates that the government is not moving an inch and is intent on demolishing the judiciary. Brussels should finally take the ruling Law and Justice party at its word and stop looking for an excuse for a “dialogue” with what has clearly become a renegade in the European Union.

The main problem with the Law and Justice reforms is not the party’s intent to purge the judicial system of the alleged remaining communist rot (although as many have pointed out, the justice system was subject to a lustration process in the 1990s, and the average age of Polish judges is 47, so most are too young to have been on the bench in the communist era). At issue is the way in which Law and Justice is proceeding. The party is openly contemptuous and ignorant toward the rules of politics and has violated Poland’s own laws, including its own constitution, when adopting new legislation.

This threatens to undermine Poland’s democracy and legal system — and it will have significant impact outside it, too.

Last week, the ruling party dismissed the majority of the National Council of the Judiciary, the body responsible for appointing judges across the country, despite constitutional guarantees forbidding the shortening of their terms. When replacing them with its own candidates, the justice minister left no doubt about the intent of the reform, saying: “The whole process of selecting judges was out of the government’s control; this has now changed.” In a month, around 40 percent of sitting Supreme Court judges will also be forced out as part of Law and Justice’s reforms adopted in December. All of this was made possible in part by the party’s aggressive 2016 takeover of the Constitutional Tribunal, which adjudicates constitutional disputes. The party had installed its own judges to the tribunal through a series of unconstitutional steps, including by refusing to publish the tribunal’s rulings in the official gazette, hence stopping them from taking legal effect.

In the new system, subject to vague criteria and a three-year grace period, practically anyone who has felt wronged by the courts in the past 20 years could have their cases reopened and reexamined by a newly established, extraordinary chamber nominated by the Law and Justice party, and all decisions related to disciplining and sanctioning judges will happen under the auspices of a new body whose judges are also effectively chosen by the ruling party. This new Supreme Court chamber is responsible for validating elections as well, a task that had been within the purview of an independently appointed court earlier.

From its white paper, the government seems unbothered by the fact that the reforms were unconstitutional. The document admits that Law and Justice lacks the two-thirds majority in the lower house of parliament required to amend the constitution but argues that “it was necessary to carry out the reform by different means.” Such an approach is a clear demonstration of Law and Justice’s thinking, according to which there are no rules worth respecting other than the ones set by the party.

It is not hard to see how drastically these changes have already altered Poland’s legal system. The appointment of judges and their careers now depend on the goodwill of the governing party. It is also not hard to imagine what abuses await when final legal decisions are made subject to reexamination; in a court case, after all, one side is always unhappy with the outcome.

What Law and Justice is doing is revolutionary. The party is not only electing its own judges and giving them extraordinary powers, it is essentially taking over the state, operating with full disregard for constitutional and parliamentary norms. It is basing its actions on the vague notion of “social justice,” making an arbitrary differentiation between just outcomes in a legal sense and just outcomes according to its own social priorities and claiming the right as the elected party to decide the difference.

This is why small concessions to the European Commission — such as watering down controversial laws as Hungary previously did and then publicizing the end result as a victory on both sides — will not be enough in Poland. The European Union has drawn a line with the launch of Article 7 proceedings, and it should not back down until Poland’s government has fully remedied the situation. In addition to preparing formal sanctions, if necessary, the EU should condition the distribution of EU cohesion funds on rule-of-law criteria, and clarify that countries refusing to accept the jurisdiction of the European Public Prosecutor’s Office will not be eligible for funding.

Certainly, having to face both growing nationalism and increasing interdependence puts the EU in a bind. Political parties in member states demand more sovereignty, as demonstrated by the Brexit vote, but new challenges increasingly require deeper and stronger cooperation, as shown by the migration crisis. These conflicting trends have bolstered the appeal of creating a “multi-speed Europe,” or breaking the union into a core group and a less tightly connected second tier.

Yet Western member states would be wrong to assume that ignoring attacks on the rule of law in the eastern half of Europe can shield them from their effects, even in a multi-speed arrangement.

In the end, if the revolutionary forces at work in Hungary and Poland prevail, the impact will be felt across the EU, which depends in part on the consistent enforceability of judicial decisions. No political union can function with zones of legal uncertainty. What happens in Warsaw or Budapest will also affect Paris and Berlin, and the sooner that decision-makers realize it, the better.

The EU has no other option but to continue working through Article 7 proceedings with Poland and not buy the Law and Justice government’s current charm offensive. Already in the past three months — that had allegedly been set aside for a dialogue with the commission — the Polish government has implemented some of its reforms, creating new facts on the ground that will be difficult to reverse. A further delay in taking seriously the Polish government and its intentions will result in a situation where future legal changes will be of no use, for the government will have packed the court system with loyalists across the country and instilled a sense of justified fear in those willing to question its power. 

The experience with Poland shows us that democracy does always not die in darkness but sometimes bare naked, for all of us to see. It’s up to Brussels to take action — but it’s up to Europeans everywhere to reflect on how fragile the EU has been revealed to be.