The previous article published a few days ago describes the political developments in Poland during the last 12 months. This one is focussing on Poland’s future. However, in light of recent developments, it makes sense to remind ourselves of the contributions to democracy made by some great Europeans in the past.
European democracy and the ‘tyranny of the masses’
In the 17th century, John Locke wrote about how reasonable it is to limit the power a government holds. He and Montesquieu developed the notion of the separation of powers. Today, the Polish party which, ironically, calls itself Law and Justice (PiS) undermines the principles of separation of powers and rule of law. Passing various laws – as described in the previous article – they have essentially negated the separation of the judicial and the executive branch of power. Public service media, also referred to as a nation’s fourth branch of power, are about to become dependent from the government, too.
In his work “On Liberty”, John Stuart Mill described the importance of protecting and defending the civil and social freedom of individuals from the power of society. He referred to the ‘tyranny of the masses’. That term had been coined by Alexander de Tocqueville. In the 19th century, he had been asked by the French government to study the American legal system. From 1835 to 1840, Tocqueville published his magnum opus entitled “Democracy in America”. Before that, in 1829, Andrew Jackson had become President of the USA. After having been elected, he ensured that numerous of his supporters were appointed to public offices. Ever since, such tactics are called a spoils system – quoting a US senator who said “to the victor belong the spoils”. Finally, 50 years later, in 1883, the USA reacted by passing the Pendleton Act: A law which laid down that public officials in the Federal government were to be recruited based on merit and qualification in a transparent way instead of their political views. It does not require too much imagination to see similarities between the current situation in Poland and that era.
However, it is also important to see the differences: Almost half of all Polish people who would have been eligible to vote stayed at home in the elections in 2015. President Duda won the election very narrowly, in the second ballot only. PiS received 5.7 million votes in the general elections, i.e. less than 20% of all Polish people voted for them! Even though it led to majorities in both chambers of the Polish parliament, a really convincing democratic mandate is somewhat different. Moreover, prior to the election, PiS did not tell the Polish citizens about their intention to challenge the separation of powers in Poland and the rule of law in general.
The European Commission, on their part, merely referred to the disputes about the Polish constitutional court in their opinion. Looking at it positively, one might say the Commission tried to avoid a further escalation in this issue. Taking a sceptical look, however, this approach does not take the entire dimension of the crisis into account. In Poland, the fundamental values of the European Union are currently being threatened, and that goes beyond the issues concerning the constitutional court. The essential question is to which limitations the power of a party – and the public offices it legitimately seized in general elections – should be subject.
What is ahead?
The NATO summit in Warsaw at the beginning of July
In about one month, NATO will hold their periodic summit in Poland. In December, the Polish government had already caused irritations among its allies by raiding a future NATO training centre in the middle of the night. Certainly, the NATO summit is politically sensitive, especially against the background of Russian aggression in Ukraine and elsewhere and the domestic request by six former ministers of defence for the current Polish defence minister to step down. However, NATO not only defends the citizens and territories of its member nations, it also defends Western values. Western values are the pillars of both, the North Atlantic Treaty and NATO’s Strategic Concept 2010. They even explicitly mention the rule of law and democracy in member nations. The preface to the Treaty states that the NATO nations “are determined to safeguard the freedom, common heritage and civilisation of their peoples, founded on the principles of democracy, individual liberty and the rule of law.” Article 2 emphasises that the parties will strengthen their “free institutions”. It is safe to assume that the Polish constitutional court is a “free institution” within the meaning of the NATO Treaty. Thus, the behaviour of the Polish government undermines the NATO Treaty and, therefore, contributes to the undermining of the security of the Polish and that of the Baltic people and of Europe in general. Hence, NATO needs to be very clear in reminding the Polish government of the common values. NATO should demand that they present constructive solutions that work for the entire Polish nation, not only for a part of it, and that they make progress in respecting democracy and safeguarding the rule of law. In this respect, no place could be more suitable for hosting this year’s NATO summit than Warsaw. Only Budapest would be just as suitable. And Ankara might even be better…
The papal visit by Pope Francis at the end of July
At the end of July, Pope Francis will have “an appointment” with young people from all over the world in Poland. On 27 July, he will visit Krakow on the occasion of World Youth Day. Considering the influence which the Catholic church has on the Polish society, this visit can be of great importance for Poland, too.
As if the tensions in domestic policies were not enough, the Polish church currently seems to contribute to further tensions in the Polish society. How so? Poland has one of the strictest abortion laws of the entire European Union: Terminations are currently allowed only in case of one of the following exceptions: If the woman’s health is in danger, in case of rape or if the foetus was irreversibly severely damaged. But this is not enough for the Polish anti-abortion camp. The have launched a citizens’ initiative, collecting signatures. The latter have to be submitted to the Polish Sejm by 6 July. Allegedly, 100,000 signatures have already been collected. The bishops of the Polish Catholic church have indirectly advocated the citizens’ initiative. At the beginning of April, they had a pastoral letter read out during church service, promoting a ban on abortion while rejecting the punishment of women who had an abortion. Ever since, unsettling videos have been shared on social media, showing numerous women leaving church service while the pastoral is read out. The question of whether to abort the growth of a foetus in the womb of a woman is certainly one of the most difficult matters of conscience on which a woman might have to ponder – even more so if that life was created by an act of violence against her. In general, it would probably be more helpful if the Catholic church turns to the women concerned with mercy and help bridge the divides that already exist in the Polish society and mend them instead of potentially widening them. Jesus Christ turned to the people with mercy, not with a rule book. The looming criminalization of numerous women by toughening up the compromise on abortion which was tediously negotiated by the Polish society in 1993 does not seem to be helpful at all. Looking back in legal history, we can see of how little use such bans have been. It is said that, even today, a large number of Polish women take already advantage of the possibility of having abortions abroad – if they can afford it at all. A further criminalization of women who decide on the matter of individual conscience of an abortion and of the doctors who lend their support to these women in a responsible manner will not help. It would only increase the health risks for these women. And so, the UN Human Rights Committee (CCPR) has recently issued its findings saying that the similarly strict termination laws in Ireland violate the human rights of women.
What was has recently also been very disturbing in Poland were the appearances by a Catholic priest in Bialystok at the end of April: During his appearance in the cathedral, Chaplain Jacek Miedlar said that nothing was as detrimental to the church as its soft stance and the church needed to have zero tolerance for Jewish cowardice, according to media reports. He had already arisen suspicion in November during an event on the occasion of Poland’s Independence Day when he stirred up hatred against Islam. A video of that appearance exists. You can find it here. Take a look at some scenes. You do not need to understand Polish to be able to grasp the unsettling mood during this appearance. Briefly after Jacek Miedlar’s appearance in Bialystok, the diocese apologised. Miedlar was allegedly banned from appearing in public by his superiors. One can only hope that he will reflect upon his behaviour and repent.
Without doubt, all this news is especially sad in a year which was proclaimed as an Extraordinary Jubilee of Mercy by Pope Francis. Therefore, the visit to Poland by the Holy Father might be much appreciated. A voice of mercy seems to be much needed in Poland these days.
Review of the EU’s Multiannual Financial Framework and recommendation of the 2021-2027 Financial Framework
In the second half of 2016, the review of the EU’s Multiannual Financial Framework will be conducted. Additionally, the European Commission will have to present a recommendation for the 2021-2027 Multiannual Financial Framework by the end of 2017.
Currently, Poland receives ten to 15 billion euros from the European Union each and every year. This accounts for almost 3% of the Polish gross national product. All citizens of the Euro zone are well familiar with that magical figure. Hence, Poland is the major net recipient in absolute terms in the European Union by far. And this amount is larger than the total British net contributions. To exaggerate, one might say that the money from British taxpayers is currently not going to Brussels but to Poland on balance. In view of their deep roots in the rule of law, pluralism and limitation of the power of governments, it is all the more striking how little British politicians and the British public have had to say about the developments in Poland so far. Even more so as British net contributions play such an important role in the discussions on a potential Brexit. It seems as if people on the British islands were too concerned with their own relation to the European Union. However, a potential British withdrawal from the European Union would certainly have profound effects on the amounts of EU allocations for Poland. All the more so if the Polish government do not feel able to make a contribution to mastering the refugee crisis and millions of young people are still unemployed in the South of Europe. Therefore, the European Union needs to accurately revise which part of European taxpayers’ money benefits the entire Polish population and which part only benefits a government which does not respect the fundamental values of the European Union as much as they deserve. It is known that PiS was also elected because of numerous promises regarding spending on social policies, some of which they have already implemented. Hence, the recommendations by the European Commission on the 2021-2027 Multiannual Financial Framework in 2017 might also take into account the revisions of the current Financial Framework.
Poland’s rule-of-law proceedings
Should the Polish government not come to their senses in time, the rule-of-law process might progress. As of today, it is pretty safe to assume that the Polish government is trying to win more time. (You can find an overview of different scenarios by Dr. Starski from the Max Planck Institute for Comparative Public Law and International Law here). The terms of several judges to the constitutional court will end soon, i.e. their positions will need to be filled with new judges. The term of office of the Polish Chief Justice Andrzej Rzeplinski who has been so brave up to now will end in December this year. PiS probably assumes that they will then be able to have a more accommodating candidate elected to become Chief Justice, hoping this will resolve the constitutional crisis – which is not a crisis in their opinion at all – without any further fuss. What is more likely, however, is that this will only exacerbate the tensions among Polish citizens and cause more damage to Poland’s international reputation. It would indeed also cause the European Union to institute the Article 7 TEU procedure. Accordingly, the Council, acting by a majority of four fifth, i.e. 22 of 28 member states, would first determine that there is a serious breach of the values referred to in Article 2 TEU. (In case of a Brexit, four fifth would mean 21.6 member states, so the determination would probably still require the vote of the ministers of at least 22 member states). If, in the course of the procedure, Hungary, in the person of Viktor Orban, was to refuse to determine a serious and persistent breach of these values in accordance with Article 7.2, this would just be another reason to finally institute a separate rule-of-law procedure for Hungary. It is simply unacceptable that the government of a member state which violates fundamental values of the European Union has a Council vote on matters concerning all citizens of the European Union.
Meanwhile, the lack in public displays of solidarity with their Polish colleagues by numerous constitutional judges and the professional associations of tens of thousands of judges in the European Union is particularly depressing. Their ear-piercing silence is an embarrassment – for them in particular and for the rule of law in the European Union in general. It shows how much the European civil society still needs to grow. Only very few really seem to act. One of them is Professor Bogdandy from the Max Plank Institute for Comparative Public Law and International Law. He has impressively explained why the Polish constitutional crisis concerns the entire European Union. Click here to read his article.
New elections in 2019
A new Polish Sejm and senate will be elected in 2019. It would certainly be positive for all Polish citizens if they were then able to elect their next parliament from a range of powerful alternatives of political leaders and parties with integrity. To achieve this, it seems necessary for the parties that formed the previous government to be self-critical and take a look at their own responsibility for the current situation. From the outside, a comprehensive renewal of the political class in Poland and a change in their behaviour towards each other seems required. Then, we can still hope that in the future, half of all Polish citizens will not stay at home on election day and that the majorities in the Polish parliament will therefore have a more convincing political mandate during the next term of office than today.
Why Europe should not abandon Poland now
In the 1980s, Polish citizens played an essential role in wrestling down Communism. Today, Poland seems to need Europe to help stabilise its democracy.
A constitutional court which is not influenced by a political party and the rulings of which are respected is vital to a functioning Polish state under the rule of law. A strict separation of the executive and judicial branch is the precondition for avoiding the abuse of power. The freedom of public service media is necessary for the pluralism of opinions in the Polish population to be adequately mirrored. Only then are citizens able to form their own, balanced, opinion. Filling key positions of the Polish state according to performance and merit – instead of adherence to party line – is essential for the general performance of the Polish state and its acceptance by its citizens.
Peace and inner solidarity in the Polish society, respecting the fundamental values of the European Union and the Polish constitution as well as solutions which are acceptable for the large majority of the Polish people are in the interest of all citizens of the European Union. But first and foremost, they seem to be in the interest of the Polish people themselves. And in the end, this is the only way of promoting freedom, security and prosperity in Europe.Oliver H. Schmidt