Democracy in Poland is under threat ever since the conservative Law and Justice party (PiS) came to power in 2015. If it collapses, it could lead to another Brexit episode with Poland forced out of the EU. Or choosing to leave.
The villain in the story? For many, it is Jaroslav Kasczynski, the strongman who leads the party. He is a strange man who (so far) has refused to enter the government, he is a simple Member of Parliament yet he effectively pulls the reins. The current President of Poland, Andrzej Duda, is said to be in his pocket, and the Prime Minister too. And a key player in taking over the judicial system, Justice Minister Zbigniew Ziobro is at his beck and call.
Who exactly is Jaroslav Kasczynski?
Born in 1949, unmarried and a Warsaw resident, he is a lawyer and the co-founder in 2001 of PiS, along with his identical twin brother, Lech, also a lawyer. The PiS came first to power from 2005 to 2007 and it distinguished itself with fighting the remnants of Communism in the country and with having tense relations with Russia and Germany: In short, a clear nationalist agenda was already emerging.
Jaroslav’s brother was Mayor of Warsaw from 2002 to 2005 and then President of Poland until his death in 2010. Jaroslav, as the sole survivor of the so-called “terrible twins” that ruled Poland tried to succeed his brother as President but lost out to the incumbent.
Lech’s death in a plane crash in Smolensk, Russia, left Jaroslav convinced it was murder. A believer in conspiracy theories, he blames the Civic Platform leaders who governed after his brother’s death, in particular Donald Tusk, then Prime Minister, today President of the European Council. Others he has taken aim at are Tusk’s chief of staff at the time, Tomasz Arabski and the former foreign minister, Radosław Sikorski.
So, people say, that is why he is attacking the judiciary. But that’s too simple a theory.
The PiS Grab for Power
It is a fact that the PiS is trying to take over control of the judiciary and in its first year in power it had packed the Constitutional Court, politicized the appointment of prosecutors and abolished court consent for state access to private internet accounts – a direct threat to people’s privacy.
But it didn’t stop with the judicial system. It worked on another front too, bringing public broadcasting under direct government control – a clear way to control public opinion in a country where public broadcasting is still very important, especially in rural areas, which, not incidentally, are where the Law and Justice’s party main strength lies.
A year later, by July 2017, the party was finalizing its hold over the judicial system, a controversial policy that finally triggered threats of sanctions from the EU Commission.
That was to be expected: The system of checks and balances is viewed as fundamental to a well-functioning democracy by the EU, and Brussels does not take kindly to political action undermining it. Indeed, countries that are candidates to EU membership have all had to adjust their domestic system to align it with EU standards, which is what Poland did in the years leading to the 2004 EU enlargement when it joined the EU along with nine other countries, including its Central European partners in the Visegrad Group, Hungary, Czech Republic and Slovakia. Deviations from democratic norms, in principle, are not tolerated.
That is why the Polish government now finds itself clashing with Brussels. It is interesting to examine exactly how it happened.
Essentially the PiS thrived on popular malcontent that had been brewing in Poland for several years: While the country had escaped most of the devastation caused by the 2008 recession and outperformed the rest of Europe, it couldn’t avoid the pain and instability wrought by the double dip recession that hit Europe in 2012-2013. Economic growth fell from a high 5% in 2011 to a low 1.3% in 2013. In 2015, when the PiS came to power, the economy was back to a healthy rate of growth, 3.8%, one of the best in Europe. Growth is projected to exceed 3% in 2017 and 2018 as domestic demand accelerates and investment recovers on the back of growing business confidence, faster EU structural funds disbursement and low real interest rates.
But people are still unhappy, they can’t forget the 2012-2013 dip. And many felt left behind by globalization and the “westernization” of the country, particularly those with a low set of skills.
Nepotism and cronyism are widespread, accusations of corruption numerous and leveled at everyone in power, politicians, business and the judiciary. Sectors most prone to corruption are public services and public tenders. Thus, under the pretext of “judicial reform”, the PiS promoted several bills in a Parliament where it holds the majority, all of them designed to allow the party to nominate judges at all court levels, including the Supreme Court.
The plan is simple: sack all the judges and appoint only judges toeing the PiS line. Control of the Supreme Court is key since it is tasked with confirming that election results are not rigged – thus clearing the way for PiS re-election at the next round due in 2019.
President Duda obediently ratified the laws promoted by PiS, including a bill that concerned the lower courts at the district and intermediate level, giving the PiS Justice Minister the right to appoint and dismiss court heads. While this sounds like a minor win for PiS but it’s not. As Jacek Rostowski, Poland’s Minister of Finance and Deputy Prime Minister from 2007 to 2013, explains:
“If this law is used to ensure that politically loyal judges preside over cases brought against opposition politicians, in order to convict them on trumped-up charges, these officials will be prevented from running in the 2019 parliamentary and 2020 presidential elections.”
President Duda was therefore expected to ratify the next two bills at the end of July 2017 but he surprised everyone by refusing to sign them.
Did he give in to the mass street protests that had been going on for several days? Maybe, but it was only a half-victory for the opposition. Because President Duda, following Law and Justice party lines, publicly acknowledged the judicial system needed “reform” and announced he would participate in the rewriting of the bills in the fall. He said he would ensure that the Law and Justice Party would not be alone in appointing judges but that was little consolation to the opposition. Both bills are unconstitutional but that too is little consolation since Poland’s Constitutional Court is already in the hands of judges who are PiS partisans. If it hadn’t been for Duda’s unexpected veto, the bills would have become law.
This was too much for the EU Commission.
The EU Ultimatum
On 26 July 2017, the EU Commission, while recognizing that some progress had been made when President Duda refused to sign two bills, signaled that it intended to launch proceedings against the other two bills signed into law as soon as they were published. And it proceeded with giving Poland a one-month ultimatum to allay its concerns over its alleged “judicial reform”. In particular, the EU Commission Vice President Frans Timmermans told reporters that the Commission asked “the Polish authorities not to take any measure to dismiss or force the retirement of Supreme Court judges. If such a measure is taken, the Commission is ready to immediately trigger the Article 7 (1) procedure.”
Article 7 is the most serious sanction at the disposal of the EU Commission. The procedure allows for a never-before-used suspension of a member’s voting rights in the Council of Ministers. However, article 7 is not triggered easily: first, the EU Commission must launch an investigation to determine whether Poland is “in breach of fundamental rights”; if it is found to be so, then a motion to suspend Poland’s voting rights must be approved by a qualified majority of EU member states and two thirds of the European Parliament.
Not a simple procedure. Particularly if Poland gains support from Hungary and the other two members of the Visegrad group, the vote on Article 7 in the European Council could become stormy, and even tip in favor of Poland. A qualified majority is complex to calculate and a “blocking minority” is perhaps something Poland can muster. Some observers believe Kaczyński can count on Hungary’s Orbán. But Poland would need more than Hungary’s support, it would need the whole Visegrad Group.
So what about the Czech Republic? For years, it has feared a revival of Communism though governments have consistently leaned left and there has been a rise in populism, similar to that of Hungary and Poland. But the Czech Republic is still a democratic country with little inclination towards authoritarian rule. Yet, today, in front of the Polish attacks on judicial independence, the Czech government has remained suspiciously silent, but top representatives of the Czech judiciary have written an open letter condemning the Polish judicial reform. Which way the Czech will lean is a toss-up.
And Slovakia? Another toss-up. There has been a rise in populism in Slovakia and it has a populist government, though, like Greece, it is not right wing. As shown in the Authoritarian Populism Index, just published by Swedish think tank TIMBRO and the European Policy Information Center, authoritarian populism is now established across the continent as “the third ideological force in European politics, behind Conservatism […] and Social Democracy.” But the rise in Slovakia has not been as sharp as elsewhere, and top judges in Slovakia have joined the consensus of the European Network of Councils for the Judiciary which has judged the situation in Poland as “very grave”.
Further complicating matters is the distribution of structural funds Poland receives from the EU and which are considered fundamental for its economic development.
The sums are large and they provide a welcome stimulus to the Polish economy, currently amounting to €72 billion ($83.8 billion), the bulk of which is distributed not by the central government but by local governments. Since local elections are coming up in the fall of 2018, the opposition worries that the PiS will be able to rig the elections if nothing is done to stop them. Moreover, one can easily imagine how challenges to tenders for EU-funded projects would end up since lower court presidents are now under the control of the PiS Justice Minister.
But problems don’t stop there.
Unrestrained logging in the Bialowieza Forest, a primeval forest classified as a UNESCO world heritage site, has raised concerns in the EU. Last year, Polish authorities allowed a three-fold increase in logging over 140,000 hectares of virgin woodland. The European Court of Justice in Luxembourg ordered last week to stop felling trees immediately, an injunction that has gone unheeded so far. A European Commission spokesperson told reporters the EU was monitoring the affected forest on satellite pictures, and would follow the issue as part of its ongoing Article 7 threat against Poland. The risk for Poland is to get hit by massive fines.
So now Poland, a poster child of post-Communist economic and political success and proud member of the European Union is facing the unthinkable: The loss of its EU voting rights and massive fines. A huge slap in the face if it doesn’t mend its ways.
In the photo: Frans Timmermans, on the left, and Mina Andreeva – Source: EC – Audiovisual Service / Photo: Lukasz Kobus
When Timmermans was asked by reporters, why not also sanction Hungary that is equally busy dismantling its democracy, he dismissed the notion, implying that the problems were not on the same level. When Hungary had tinkered with the independence of its courts, the EU had forced it to “rethink” its policies. Most recently, in a suit filed by two Bangladeshi migrants, the European Court of Human Rights ruled that detention of asylum seekers in transit zones was unlawful the way Hungary had done it, without giving them any formal procedure and access to judicial remedy.
How did it happen?
How could a country that thinks of itself as pro-European and pro-democracy fall in the hands of an authoritarian party like Law and Justice that has never hidden its conservative, right-wing agenda?
This is a party backed by just 5.9 million voters. On the face of it, not many people for a country of some 38 million. One is tempted to wonder whether Poland has ever been a solid, working democracy at all if it could fall so easily in the hands of a populist party clearly intent on returning the country to a Communist-style, authoritarian model.
There are several explanations.
First, mass street protests are real and frequent. The opposition is alive and well.
But when it comes to voting, a majority stays at home: according to Anna Gromada, a researcher at the Polish Academy of Sciences and co-founder of the Kalecki Foundation think tank, approximately twenty percent of the electorate are regular voters, another twenty percent are regular non-voters, and the rest only vote “from time to time” and when they eventually do, they usually vote for the center.
But this time – in 2015 – they didn’t. They fell for the Law and Justice siren calls. Anna Gromada admits that most Poles are nationalists and easily offended by any notion that they are not living up to Western expectations. The Law and Justice party, she says, came to power with slogans calling on “Poland to get off its knees” and stop kowtowing to the West.
That is why, she argues, the recent turning-on-the-screws that the EU has engaged in could easily backfire. She predicts that the threatened EU sanctions will cause Polish society to divide between the nationalists and those who support the EU – and Poland has been one of the most pro-European countries with a peak of 89% support in 2014 (CBOS poll) yet that support, she observes, is not unconditional: in a recent poll, she reports that 51% said they would rather quit the EU than accept the EU plan for allocating refugees to Poland.
That percentage, a little over half the population. is serious enough to make one ponder. But it’s not a big gap, it is in fact borderline. Also, it is likely that the poll took place before most people fully realized the pain Brexit is causing in the UK, from the rise in food prices to the slowdown in business investments and banks abandoning London – not to mention the high cost of separation from the EU.
Still, the migrant issue is the key explanation for Poland’s sudden disaffection for the EU. What to do with migrants is so divisive that it has played in the hands of the Law and Justice party and in that sense, Anna Gromada is right.
A year ago, a foremost Western expert on Poland, Neal Ascherson who has an intimate knowledge of the country – his books include The Polish August (1981) and The Struggles for Poland (1987) – noted something similar. The Law and Justice party, he observed, is not to be dismissed simply as a neo-fascist manifestation:
“[The party]stands for an old-fashioned authoritarian nationalism, invoking traditional Catholic values (imprudently, some in the Catholic hierarchy lend PiS support). And, strangely for westerners, this frantically rightwing party is also the party of what remains of the welfare state, standing up for those millions for whom the transition to capitalism has brought only loss and bewilderment.”
Under the circumstances, can pro-Europe and pro-democracy Poles win?
Looking Forward: More Brexits or More Europe?
To sum up: The slide towards authoritarian populism is strong in Eastern Europe, particularly in Poland and Hungary. But European institutions stand in the way of a complete collapse of democracy in those two countries. What we see now is the rise of “illiberal democracies” – they could hang on a long time, especially if an all-out fight with the EU Commission breaks out. To have outside enemies is always a boost to authoritarian leaders. But the PiS base is not that strong, and Polish opposition, with a determined effort, could weaken it enough so that we might see a healthy change of the guard in the palaces of power.
Could, under the worst-case scenario, Poland go so far as to leave the EU, Brexit-style, as some argue? The political base for it is weak, polls suggest that pro-Europe sentiment among the Poles is still running strong. EU structural funds are much appreciated and play a big role. And everyone across Europe, Poland included, is seeing how difficult it is for the UK to extricate itself from the EU, and how costly this is. Not a process Poles will face gladly.
The other two countries of the Visegrad Group, the Czech Republic and Slovakia, are not particularly keen to support the Kasczynski-Orban duo. This is important. If the Group can be prevented from working together, it would remove the “minority block” issue at the European Council. No doubt the EU is aware of it. Why else would Mr. Timmermans argue that the Hungarian case was “different” from Poland?
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Taking a long-term view, one could argue that Eastern European countries that resist EU rules and standards as Poland and Hungary are now doing, could dangerously overplay their hand. Their reluctance to play the EU game, their disregard for EU democratic standards, including environmental demands, their willingness to close their boundaries to migrants and leave fellow EU members like Greece and Italy in the lurch, is opening up the very real possibility for a two-speed Europe.
At the European Summit held in Rome in March 2017, Hungary and Poland, threatening “mini-summits” of their own with the Visegrad Group or the Bucharest Nine (the V-4 Group plus Bulgaria, Estonia, Latvia, Lithuania and Romania), scored a point. They obtained that the idea of a two-speed Europe be (momentarily) shelved. But it’s only momentary. If they misbehave, that idea could very well be revived.
What is to stop a “coalition of the willing” to build a stronger, more cohesive Europe?
