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EPA/Jakub Kaczmarczyk

Poland in peril: a legal expert on why democracy is threatened and what that means for Europe

Poland is on a collision course with the EU, facing unprecedented sanctions over the national government’s plan to effectively seize control of its courts and judges.

After three decades of steady progress away from commmunism and one-party rule, the governing Law and Justice party (PiS) is pushing for reforms to Poland’s judicial system which could seriously compromise the freedom of citizens. The measures could paralyse the courts, leaving constitutional rights open to abuse from the state.

The European Union has already started legal action against Poland for infringing EU law and is now making an even more serious threat. In a statement published on July 26, it warned that unless the Polish government backs down from its reform plans within a month, the European Commission “stands ready to immediately trigger the Article 7 procedure”. This is the mechanism through which a member state’s EU voting rights can be suspended on the grounds that it has failed to meet the shared values of the EU – in this case, respecting the rule of law. Triggering Article 7 against Poland would be an unprecedented move against a member state.

The dispute centres around three bills presented by the government to the national parliament which would significantly curtail the freedom of the nation’s judges. One of these, the judicial bill, gives the justice minister the power to fire every single judge on the Supreme Court and to decide which of them gets reappointed. The bill was passed by the senate, but, in a dramatic turn of events, president Andrzej Duda, stepped in at the last minute to veto it.

Frans Timmermans, first vice-president of the European Commission, warns Poland to back down. EPA

It’s not clear why Duda blocked the bill, particularly since he is generally close to the PiS, but his decision may reflect the growing public backlash. Citizens have been on the streets of Warsaw, Krakow and other major cities protesting the bills.

Nevertheless, the president has signed one of the three bills. This grants the government the power to appoint the presidents of the lower courts. The presidents of the courts decide upon the allocation of cases. If the government fills courts with politically malleable judges, then these cases can be filtered to specific courts in order to secure a favourable outcome.

Duda, a lawyer himself, has also sent the third bill back to parliament. This aims to enable the government to control who sits on the National Council of the Judiciary – the body that nominates judges. Under this bill, the minister of justice would also have the right to select and dismiss judges.

Sliding into authoritarianism

This is just the latest in a series of attacks on democratic processes in Poland. The first targeted the Polish Constitutional Tribunal – the body which assesses whether laws are compatible with the constitution. In 2015, the new PiS government refused to swear in judges nominated to this tribunal by its rival pro-European Civic Platform party, which had formed part of the outgoing government.

Since then, the PiS has moved to make the tribunal’s work increasingly difficult. It has refused to publish the tribunal’s rulings in the official gazette – a procedure needed to ensure those rulings are binding. It has also changed the rules so that the tribunal needs a two-thirds majority to make a ruling – and at least 13 of the 15 judges have to rule on every decision – making it incredibly difficult for the court to reach decisions on anything.

President Andrzej Duda announces his veto. EPA

This effectively leaves the government free to interpret the Polish constitution as it sees fit. It might therefore clamp down on the free press, allow its critics to be locked up, or restrict freedom of expression and freedom of assembly.

Brussels sanctions?

After the collapse of communism, many Central and East European countries managed a “return to Europe”. The renewed relationship was a victory for democracy and the rule of law over the old systems of governance.

While there are grounds for reforming the Polish judiciary, democracy is always a work in progress. The proposed changes have little to do with reform. They are more squarely aimed at incapacitating the courts – beginning with the Constitutional Tribunal and the Supreme Court.

The Polish government has accused the European Commission of interfering with its national sovereignty by threatening to suspend its voting rights – perhaps seeking to tap into the “take back control” rhetoric that proved so successful in the UK ahead of the Brexit vote. But the sovereignty argument is misleading and dishonest. Sovereignty should not be about destroying the very institutions that uphold the rule of law.

This doesn’t just matter in Poland. The fact that cracks are appearing in countries that were thought to have been moving towards the rule of law shows that liberal democracy remains fragile. Having made so much progress to reform the practices of its communist past, Poland seems to be sliding back to authoritarianism.

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