June 12, 2016
For the first time in its history, the European Union formally instituted a rule-of-law proceeding against one of its member states on 1 June, 2016. It concerns Poland.
How did this come to pass?
The Polish elections in 2015
About one year ago, on 24 May, 2015, the Polish citizens elected Andrzej Duda to become their new president. He was the presidential candidate of the party which calls itself Law and Justice (PiS). A second ballot was required for him to be elected. The turnout among about 30 million Polish people who were eligible to vote was only 55%. Andrzej Duda narrowly won by 520,000 of 17 million cast votes (51.6%). On 6 August, 2015, Andrzej Duda was inaugurated. The lawyer declared that he wanted people to see him as the president of all Polish citizens five years later.
Five months later, on 25 October, 2015, PiS also won the general election for the Polish Sejm and Senate. Again, only about half of those eligible to vote in Poland cast their ballots, 50.9% to be more precise. The first inaugural meeting of the new Sejm took place on 12 November, 2015. A few days later the Polish president swore in Beata Szydlo as Poland’s new Prime Minister. The chairman of the PiS, Jaroslav Kaczynski, had suggested her earlier in June to be appointed as Prime Minister in case of an election victory. Since she was sworn in, she has run the Polish government.
Which steps has the Polish government taken since having taken office?
Since they came to power, the Polish government, the parliament and President Duda have decided on and introduced a range of very fundamental changes in the Polish democracy.
First, President Duda refused to appoint five judges to the constitutional court who had previously been elected by the old Sejm. Then, without further ado, the new Sejm, i.e., the majority held by PiS, elected five new judges in November; the constitutional court, however, has acknowledged the election of only two of them to be legitimate. According to the constitutional court, electing the other three judges would still have been the right of the previous Sejm. What’s more, the Polish Sejm, using the votes of PiS, decided on a range of new procedural rules applicable to the constitutional court. Their bottom line is that the constitutional court can no longer function properly and can, de facto, no longer fulfil its role as watchdog on the Polish constitution. Therefore, the constitutional court, in turn, declared these decisions made by Sejm unconstitutional in its ruling dated 9 March, 2016. The Polish government has refused to publish the rulings in the Polish Official Journal ever since, thereby preventing them from becoming formally legally binding. This is at the core of what has lately been referred to as the Polish constitutional crisis. In fact, however, this crisis has much larger dimensions.
With the votes of PiS, the Polish Sejm and the senate have passed a range of additional grave legal amendments:
All public prosecutor’s offices are now under the direct control of the Polish Ministry of Justice and the Polish Minister of Justice was appointed as Prosecutor General. So, de facto, he can directly intervene in any investigation in Poland.
Moreover, a new law has given Polish intelligence agencies and the police constant access to telecommunication and internet meta data. The approval by the providers is no longer necessary and the law does not provide for a requirement of authorization by a judge. Polish doctors, lawyers and journalists in particular as well as many ordinary citizens are fearing now that their data is no longer safe from the access of the government and their secret services. Their concerns do seem legitimate and have a certain background in Poland: In 2014, the publication of secret recordings of conspiratorial talks held by public figures in restaurants in Warsaw caused a scandal throughout Poland. In 2015, a blogger published files of the enquiry and this led to the dismissal of three ministers of the old government as well as to the dismissal of several top-ranking officials who were involved in the scandal. This happened only four months before the general elections in Poland.
In addition, the heads of four Polish secret services were replaced after the Paris attacks of last November. What’s more is that the newly appointed secret service coordinator of the new Polish government was quickly pardoned by President Duda. Because of illegal investigation methods during his term of office as head of the Anti-Corruption Bureau, a court of first instance had sentenced him to three years of imprisonment and a 10-year ban from taking public offices. His appeal was still pending when President Duda already pardoned him.
Then, after the Brussels bombings at the end of March, Minister President Szydlo revoked the commitment made by the previous government to contribute to the relocation of refugees in the European Union. Since then, she is rejecting the reception of 7,000 refugees in a country of 38 million people.
Regarding the Polish media, the Polish parliament passed a new law at the end of December. The directors of public service broadcasters will now be appointed directly by a government minister, the Polish Minister of Treasury, and not as before by the National Broadcasting Council. Current directors may be dismissed at any time without any reasons having to be stated. A few days after the law was passed, four directors at the Polish TV station TVP resigned from their offices and so pre-empted their dismissals.
But this is not the end of it: Three additional laws essentially restructuring “national media” in Poland were scheduled to be passed and come into effect by 1 July. Public service broadcasting and the Polish news agency are to be transformed to become government institutions. They are to operate under an explicitly conservative mission which will promote “national traditions, patriotic and human values”. Single Directors are to head “national media”. Employment contracts with Senior managers are scheduled to expire by 30 September, with the exception of those that are extended before that date. Two experts of the Council of Europe have recently criticized the bill in comprehensive and detailed form, stating that it substantially contravenes European standards. You can find their opinion here. Just a few days ago, the Polish government has stated that it will postpone the new laws and will only implement parts of it with a bridge law.
In the end, the chairman of PiS, Jaroslav Kaczynski, announced at the beginning of May that a new constitution will be devised. The occasion was the 20th anniversary of the currently applicable Polish constitution. PiS has presented a draft for a new constitution before. Their draft from 2010 provided for a change of the parliamentary system in Poland in favour of a presidential system…
Which consequences did the actions of the Polish government have?
At the end of April, three former Polish presidents, one former prime minister and two former foreign ministers and others initiated a common appeal, warning of the circumstance that Poland was on its way to becoming an autocracy and isolated from the world.
Tens of thousands of Polish citizens have taken to the street again and again. In December, the Committee for the Defence of Democracy (KOD) was founded. What began as a grassroots initiative of a few people on Facebook, turned within a few months into a Polish mass movement. Its largest demonstration to date took place on 7 May. The figures vary from 40,000 to 240,000 Polish protesters who took part on that day. It is considered the largest demonstration Poland has seen since the fall of Communism.
In the middle of May, six (!) former ministers of defence who were in office over the past 20 years, asked the current holder of the office to step down because of various statements undermining Poland’s position in the European Union and Transatlantic structures and, hence, Polish security.
According to the Polish Journalists Association, more than 140 journalists have been dismissed, pressured into resignation or transferred to lower positions since the election of last autumn. In the 2016 World Press Freedom Index Poland fell 29 places and is ranked now 47th out of 180 countries.
According to the European Digital Rights Organisation, a number of about 2 million requests for telecommunication data by secret services and the police was registered in 2015. The number of requests for internet data quadrupled in 2015. However, it is not clear how many of these requests came from the old government and how many from the new one. Moreover, a comparison to other countries is missing.
The actions of the Polish government have caused great concern, not only among the Polish society, but on an international scale, too. As mentioned above, the European Union has formally instituted the rule-of-law process on 1 June. Previously, the opinion of the Venice Commission of the Council of Europe dated 11 March, 2016 had declared that the rule of law and democracy were in danger in Poland. As early as on 10 February, three senators from the US had written an open letter expressing their concern that the actions of the Polish government posed a threat to the independence of the Polish media and the Polish constitutional court.
The political stance of Poland’s new government has also already had severe economic consequences for the Polish people: The zloty has weakened by 10% vis-à-vis the euro over the past 12 months. Rating agencies have downgraded Poland or publish negative forecasts now, in spite of a private sector which has been relatively robust up to now. The Polish share price index has fallen by 20%. 13 of the 14 CEOs of government-owned companies that are part of Warsaw’s WIG30 index have been dismissed and replaced.
Taken as a whole, the steps taken by PiS have already had very severe consequences up to now. They have strongly contributed to a divide of the Polish society. And they have caused Poland’s reputation to suffer severe damage in the minds of many people in the European Union and in the world.
What is ahead?
Another article about Poland will reflect on European democracy and discuss the NATO summit, the papal visit to Poland and further developments. It will be published in a few days.Oliver H. Schmidt