Poland has recently become the focus of much international attention, with questions about the direction the traditionalist Law and Justice government is taking the country, with evermore conservative policies adopted using increasingly authoritarian methods. Often perceived as one of Europe’s most ethnically homogeneous and culturally united societies, these same debates have also been dominating domestic political discourse. This article discusses how proposed judicial reforms are both emblematic and symptomatic of these wider issues in the country.

 

One of the defining images of the recent political events in Poland came on 24th July, as both the President, Andrzej Duda, and Prime Minister, Beata Szydło, addressed the nation on TV. Viewers of State TV (TVP) would have been forgiven for not realising the President’s live speech had been bypassed to show the Prime Minister’s recorded address first, only to then broadcast Duda’s message. This led to a bizarre situation where both addresses were broadcast simultaneously on rival TV networks with main rival news network TVN24 showing Duda’s speech live, while TVP broadcast the Prime Minister’s in its place first.

This peculiar turn of events can perhaps best be explained by the content of the two speeches. The President, who is technically apolitical in terms of party allegiance, set out his role, responsibility and argued he must act as the arbiter for all Poles. In contrast, Prime Minister Szydło focused on the role of the governing Law and Justice Party (PiS) and its conviction to have the best interests of the people at heart.

This paradox is emblematic of, not only the recent political disputes in Poland, but more generally for the nature of debate in Poland. It is also illustrative of the direction the country is heading and how PiS’s vision is interpreted by large parts of the nation, together with external observers.

The addresses came at the end of a period of political and popular dispute in the country, which saw mass protests, rallies, vigils and marches in over two hundred Polish villages, towns and cities, as well as in other major global cities with significant Polish communities; with turnouts ranging from a few dozen to the tens of thousands.

These events centred upon a set of proposed reforms to the judicial system which the government claimed were necessary to create a fairer system. These reforms have been widely condemned by opponents and critics, who fear such legislation would give the ruling party undue influence over judicial decisions. Ultimately, this resulted in two Presidential vetoes, which defied the ruling party’s wishes and led to the two televised addresses.

The Three Bills

The three bills at the centre of this controversy all focus on how judges are appointed. The first bill proposes the forced retirement of all Supreme Court justices except those retained by the President, selected from a list presented by the Justice Minister, Zbigniew Ziobro.

The second places parliamentary control over the body which selects judges and decides how courts are run, taking away such decisions from the legal profession itself.

The final bill changes the way the heads of lower local and appeal courts are appointed, giving the Justice Minister significant powers to replace the chief local judges. These judges have the responsibility of allocating judges to individual cases. This, it is claimed, will help to ‘tackle what the government argues were corrupt local practices’ left over from the Communist era. But opponents fear such a system will result in some being denied justice, as it allows PiS to make appointments based on what they believe to be the correct interpretation of the law.

It was during the ensuing protests that Lech Wałȩsa, former President and leader of Solidarity, reminded the crowd gathered outside the Lenin Shipyard in Gdansk – the site of his greatest triumph – that the tri-partite separation of powers was perhaps their greatest achievement and helped pave the way to freedom and democracy.

The Broader Socio-Political Context

Recent debate in Poland has not focused on whether reform is necessary, but simply whether these specific reforms are the right way to go. Significantly, the President only vetoed the first two bills described above. The third remains on course to be enacted into law as the government, and many Poles, perceive the judicial system as corrupt, self-serving and riddled with corruption. Indeed, the divisions in opinion triggered by Duda’s vetoes is illustrative of the current mood in Poland.

Not only did it force PiS into the hastily written speech by Szydło, but members of the ruling PiS party spoke out against his actions. Notably, the party chairman Jarosław Kaczynski, who holds no official government role, but who is widely seen as the most powerful man in Poland, expressed his disappointment at Duda’s actions. He followed this up by declaring that this internal rift ‘will be quickly forgotten and we will move forward with an important role for the president’. Kaczynski’s words served not only as a reminder that this debate is far from over, but of what some see as a more sinister agenda.

Whilst two of the bills have been vetoed, this may only be a temporary setback. In fact, they may well return to parliament with only minor alterations (perhaps even technicalities). Of greater concern is the insinuation that the non-partisan role of the President could be redefined in accordance with the wishes of those in power. Whilst some have praised Duda for his actions, insisting they show he has the good of Poland in mind and is aware of the power he wields, others have asked whether this was merely a cynical move to appease the centre ground when it comes to re-election.

Such a notion seems somewhat fantastical when one examines the backlash this intervention has created. Moreover, any notion Duda’s actions indicated a more liberal mindset are easily dismissed when examining his track record. Though nominally a-party-political, Duda’s candidacy was backed by PiS, he has supported all their major policies and, lest we forget, did not get in the way of attempted reforms of the Constitutional Court last year, a move which brought a rebuke from the European Union.

Since coming to power in 2015, PiS has been at the centre of a number of controversial moves. After winning the elections with 37.6% of the vote on a 51% turnout, they have sought to impose their distinct ideology on the entire country. At the same time, PiS have also embarked upon wide ranging and generous social reforms, in particular their flagship 500+ benefit scheme. In addition the government has overseen a period of greater prosperity and economic growth in the country with wages, investment and living standards all on the increase.  However,  the party does not hold a majority which allows it to make the proposed judicial changes by ordinary legislation. Such changes therefore require parliamentary approval to be passed. Opponents fear that the President and the ruling party are attempting to modify the constitution to allow these changes, rather than implementing changes within existing constitutional norms. Over the last eighteen months, they have attempted to take greater control of the media, have openly defied the EU and UNESCO with the logging of the Białowieza National Forest, begun educational reforms focusing on a more patriotic teaching of history, refused EU refugee quotas, pollution levels, and, most famously, the ‘Black’ women’s rights marches against the imposition of strict abortion laws. This last example drew the largest backlash (before the recent judicial reforms) and perhaps best encapsulates both PiS’s agenda and the objections to it.

Such interpretation of ideology indicates a very rigid, singular understanding of Polish identity and what a Polish citizen should be. In contrast, the subsequent controversy and wide-ranging protests against such a law suggests that PiS’s interpretation is not reflective of actual Polish society. It is here, then, that recent events can be best understood. Judicial reforms are seen as dangerous in their own right, but also as a proxy for what many see as PiS’s specific agenda and growing authoritarianism, which will be better facilitated with a judiciary more aligned to party policies.

The Politics of Protest in Poland

Poland prides itself on its revolutionary spirit and the fact its people are fighters (a self-anointed epithet), yet civil action has worked in Poland before, most famously, with the Solidarity movement, which helped to topple the Communist regime in the 1980s. Its people know how to mobilise, as has again been evident in the past few weeks throughout the country.

Although polling shows Poles remain deeply divided on the issue of judicial reform, at least the proposed version, academics believe the protests had a direct impact on the President’s decision to veto. Indeed, some observers postulate that the broad demographic spectrum of the protests, including many traditional PiS voters, demonstrated that these were more than ordinary civil protests. Professor Jan Kubik of the School of Slavonic and East European Studies and University College London states that the recent protests were one of the most incredible events he has witnessed in recent years. He highlights the fact that for at least fifty thousand people in over two hundred places to organise themselves is a rare feat, which, if ignored by the government, could easily lead to greater decent further down the line. There were two distinct characteristics of the protests which are worth examining. As Professor Kubik notes, the protestors co-opted national/patriotic symbols and slogans more commonly associated with right-wing groups, including singing the national anthem, to demonstrate their stance is a national one, albeit diametrically opposed to the one put forward by the government.

Commentators suggest the effectiveness of the protests was increased by the fact that they were not affiliated to any political party or movement, although opposition MPs have lent their support to the dissent. Indeed, many of these protests have been characterised by spontaneous events and held together by small grassroots movements. This has led some critics to ask exactly how they are being funded, by whom, and what ultimately their agenda may be? Whilst a lot of focus has rightly fallen on the scale of popular protest in Poland, one must question the extent to which this civil action is due to the lack of any real political opposition, and whether this has deflected from the problems facing the opposition parties.

Since coming to power, PiS has found itself faced by a weak, ineffectual and dysfunctional opposition which is merely reactive and offers few real solutions. The opposition parties have often been accused of generating publicity rather than policies and have made mistakes which undermine their authority; for example, when the leader of the centrist-liberal opposition Modern (Nowoczesna) party, Ryszard Petru, was photographed going on holiday after he had promised to lead his party’s protest against the government’s media reforms.

Professor Kubik points out that this level of dysfunction has been an issue since the run-up to the 2015 elections. He describes how the then government of Civic Platform (PO) led a disjointed and moribund campaign, devoid of any ideas, which has continued into their time in opposition. Kubik even described the opposition as ‘the Walking Dead’. Casual observers, new to the novelties of Polish political discourse, would likely have been horrified at the style and level of debate in Poland. It has been characterised by name calling, slurs and gerrymandered debates, where those opposed to the government have accused it of using Communist tactics ranging from manipulation of the media, to stacking political debates so that opposition views are thrown out.

PiS’s ability to do this, however, comes from both the success of their socio-economic reforms and the opposition’s, particularly PO’s, inability to form a cohesive counterargument. Ultimately, all this helps PiS to retain credibility and, to a point, voter trust. Indeed, despite recent events, they have maintained their support base and are widely seen as the only real guarantors of stability in Poland. One recent Kantar poll places them at 45 per cent, in contrast to main opposition PO’s do not even make 20 per cent.

The Role of the European Union

Inevitably, attention has focused on what stance the EU will take against these latest developments. As mentioned above, the judicial reforms are but one of a number of areas where the Polish government have been reprimanded by the European Union. Opinions vary on what stance and action should be taken, with some protesters asking for the issue to be tackled head on, while others believe any intervention could cause more harm than good.

On 26th July, the EU issued a statement announcing that separate Supreme Court changes would lead to Article 7 of the Lisbon Treaty being triggered. Article 7 sets out disciplinary procedures the EU can take against a member who is transgressing obligations to the Union and of the upholding of democracy. Direct EU action has been discussed since at least 2015, earlier in the case of Hungary, but it seems that only now is this being seriously considered. Hungary is another problem for the EU altogether, however Hungarian Prime Minister, Victor Orbán has been described as subtler than Kaczynski (PiS chairman) in achieving his aims. Indeed, Whilst Hungary and Poland are seen as natural allies, Orbán has not supported Poland at every step, most famously at the re-election of Donald Tusk to the Presidency of the European Council. Furthermore, only Poland has directly ignored a direct EU demand handed down by the European Court of Justice (ECJ) to cease logging in Białowieza Forest. In a statement in early August, Tusk made clear how Poland is perceived to be standing apart from the rest of the EU, stating:

‘There are several issues where the behavior of the Polish government appears to be very controversial. This is how the whole EU sees it and that sometimes even includes Budapest’. Tusk added ‘It smells like an introduction to an announcement that Poland does not need the European Union and that Poland is not needed for the EU’.

Any EU sanctions would hit Poland hard, but applying them is a different issue. Some Poles are already wary of outside influence, even claiming recent protests are the work of foreign funded provocateurs (so called ‘astroturfing’) such as the Hungarian philanthropist, George Soros who is also a vocal critic of Orbán’s Hungarian regime. Whilst these accusations are farfetched, PiS have laid out their position against EU interference, citing only they know what is right for Poland, and that the role of Tusk within the EU means his personal vendetta against Kaczynski and PiS, dating back to when Tusk led the country, cloud these actions. On 28th August, Poland formally rejected the EU’s concerns over its proposed judicial reforms, opening up further divisions between the country and Brussels.

EU membership has done wonders for the country. Poland is the largest recipient of development funds, and, as many will testify, has changed immeasurably since accession to the EU in 2004. Living standards have improved, as have infrastructure and, most notably, the economy, resulting in Poles being among the most pro-EU of European citizens. That is why many feel it is dangerous for Poland to be flirting with EU sanctions and, ultimately, to risk the reputation of the party. The language employed by Tusk can be read as pure politicking from the EU, in the knowledge that Poland would surely not risk its EU status. Up until recently, reactions in Poland have suggested that the government is confident they will not incur sanctions and will therefore continue on their current course, provoking the EU further.

However, such an approach seems evermore precarious as, whilst expulsion from the EU is not a serious option, Poland’s constant disputes with Union and with individual member states – such as France and Germany – are being weaponised by the government without any real recourse to follow them through. All this is seeing the country pushed further to the periphery of the main decision makers and is fast becoming a pariah in the bloc, with some in the Union now seriously considering official action. Such self-imposed isolationism cannot ultimately be good for a country of Poland’s stature. Indeed, on 12th September, a statement from the European Commission announced that proceedings against Poland were being progressed. The statement says that under the proposed changes, Poland’s Minister of Justice would be able to exert undue influence over the judiciary, reading:

‘the discretionary power to dismiss and appoint Court Presidents allows the Minister of Justice to exert influence over these judges when they are adjudicating cases involving the application of EU law’.

Consequently, the European Commission has issued Poland with an ultimatum: The country has one month to rectify these concerns itself or face possible action, including referral to the European Court of Justice, though no specific sanctions are mentioned at this stage.

Debates about Poland’s future will continue

Poland sees itself as a proud, historically distinct and homogenous nation which is also deeply tied to Europe. Scratch beneath the surface, and what this actually means for Polish identity and the future of the nation is a polarising topic. It is difficult to say what will happen next, or where the next fissure or divisive debate will arise. It must be remembered that President Duda’s vetoes still allow for major changes, and the form in which the two vetoed bills will return has yet to be seen.

Suffice it to say, perhaps the veracity of events in Poland are indicative that reform and change within the nation’s legal and democratic systems is necessary. Ultimately, this is a Polish issue and one which needs resolving through its own means. It speaks of how Poland sees itself and its place in the world.


Chris McBride

Chris holds an MA in history from the School of Slavonic & East European Studies at UCL. His focus is on Polish politics, culture and identity.

Twitter: @McChris85

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