Poland’s Illiberal Trajectory Continues to Challenge the European Union

Every year in Poland, Narodowe Święto Niepodległości, or the Polish Independence Day, is celebrated in Warsaw, commemorating the anniversary of the restoration of a sovereign Poland after over a century of invasion and domination by the German, Russian and Austrian empires.

In 2017, however, the tone of the festivities soured, making international headlines as it was dominated by the looming presence of a march of over 60,000 white supremacist and far-right activists, carrying xenophobic phrases and far-right symbols denouncing Jews, refugees, and communists. These demonstrations celebrated the right-wing Prawo i Sprawiedliwość Party coming to power in 2015, known internationally as the ‘PiS’ or ‘Law and Justice’ Party.

Since winning both an absolute majority in the Polish parliament and the Presidency in 2015, PiS has waged a campaign in open defiance of the law, constitution, and courts to take absolute partisan control over the judiciary. This includes but is not limited to amending the National Council of the Judiciary, the structure of the Supreme Court, refusing to publish and abide by Constitutional Tribunal rulings, and unconstitutional partisanship and nepotism in Tribunal appointments.

Until recently, Poland was a model state for post-communist success in European integration; the Economist in 2014 even branded the last 25 years in Poland as a “second Jagiellonian Age,” referring to the 16th-century era in which Poland was an immense economic power stretching from the Baltics to the Black Sea. Once stifled by the destitution of communism, Poland’s economy grew near threefold since 1989. Indeed, its economy was the only among all European Union nations to not fall into the effects of the recession in 2008, continuing steady growth. To those outside of Poland, therefore, the demonstrations in September of 2017 following the 2015 election came as a shock. Despite perceived stability, Poland has seemingly slipped further towards the realm of authoritarianism as its Law and Justice party maintains control through the tail end of 2018 and onto the New Year.

THE RISE TO POWER OF THE POLISH FAR RIGHT

In 1981, Poland rose up first among the Soviet satellites, aiming to achieve sovereignty peacefully from Gorbachev’s regime. The movement, ‘Solidarity,’ was wrought on the back of the labor unions of the Gdansk Shipyard, giving rise to a widespread peaceful anti-communist social movement contributing greatly to the fall of communism in Eastern Europe.

By 1989, Solidarity managed to dismantle the communist government in Poland, with semi-free elections appointing a Solidarity-led coalition and a president in 1990 into the Polish government. Following countless years of single-party oppression, Poland was seen as a model for how a Communist state could peacefully transform into a modern, multi-party democratic state.

Poland benefited from coalition governance for the following decade, under the Solidarity Electoral Action party coalition, named for the revolution providing Poland with democracy. Under this coalition, Poland entered NATO in 1999 and eventually ascended into the European Union in 2004. At this point, however, conflicts within the coalition fueled by Euroscepticism splintered the coalition into a more liberal faction, of the Civic Platform, which held the presidency until 2005, and the right-wing Law and Justice Party. PiS capitalized on the rising popularity of its leader, Lech Kaczynski as the Minister of Justice who held a hard line law and order platform, as well as vehemently disregarding the authority of the European Union, which Poland had joined in 2004. Kaczynski, as well as his twin brother, the party secretary Jaroslaw Kaczynski, eventually rose to positions high up in the administration, building upon the assertion that they were countering a shadowy post-communist system, serving a post-communist nomenklatura.

While the Kaczynskis remained vastly popular with the right in Poland, it wasn’t until 2015 that they succeeded in winning 37.6 percent of the vote and the majority in parliament. The twins and party benefited substantially from a common European trend at the time; the popular disillusionment with the status quo in international institutions. Externalities also contributed to the surprise win, as Lech had passed recently in a plane crash in Russia, making him a martyr for and leverage to accuse the Kremlin of foul play. Capitalizing on this incident allowed PiS to step forward as the leader in rhetoric promoting the idea that Poland was surrounded by enemies; the European Union, whom they scorned as treating them as a second class state, lying to the West, and the Russians, lying ominously to the East.

Poland’s troubled history of countless invasions and occupations leaves its population extremely vulnerable to demagoguery; without the sobering personality of Lech, Jaroslaw Kaczynski’s xenophobic and inwardly facing rhetoric has intensified the rightwards shift in Poland’s electorate. Kaczynski builds his political platform on vituperative criticism of any political opponents; it’s fairly regular for him to brand them as ‘reds’ and ‘communists,’ arguing that the liberal intellectuals leading Solidarity allowed communists to retain secret influence of liberal politicians in exchange for high ranking appointments. Additionally, he energizes the xenophobic tides in Europe when met with the challenge of middle eastern refugee crises, branding middle-eastern migrants as diseased and arguing that political opposition groups were anti-patriotic and challenging ‘Polishness.’

This illiberal turn is not unfamiliar to European politics; however, the conditions unique to Poland bestow Kaczynski with a certain sway not easily achieved outside of Eastern Europe. In examining the fallout left behind by the disintegration of Solidarity, PiS is able to leverage the sentimentality and nostalgia of the revolutionary struggle to their advantage. According to an article, published in the Guardian in February of 2016, photographs from the event were propagandized in a publication sympathetic to PiS, representing the Law and Justice President Duda, as well as the at the time middle-ranking Kaczynski brothers as the heir apparent of Polish sovereignty, and opponents as those betraying the true meaning of revolution.

POLAND’S ROLE IN THE EUROPEAN UNION

Poland, like many other formerly Communist nations, joined the European Union in the enlargement of 2004 per the terms of the of the Treaty of Accession in 2003. This followed over a decade of diplomacy, including the instrumentation of the drafting of the Partnership for Peace programme on Poland’s part with intent to join the EU and NATO. Subsequent to the color revolutions in the late 1980s, and the fall of the Soviet Union in 1991, the European Council was faced with the mounting question of how to achieve successful integration of the Central and Eastern European states now free of Soviet influence. At its Copenhagen summit in June of 1993, it was determined that the appropriate conditions for membership would be:

  1. That candidate countries achieve stable institutions that guarantee democracy, legality, human rights and respect for and protection of minorities.
  2. That candidate countries have a working market economy, capable of competing effectively on EU markets.
  3. That candidate countries are capable of accepting all the membership responsibilities, political, economic and monetary.

Known henceforth as the Copenhagen criteria, these terms underlined the five-year negotiations between Poland, along with the Czech Republic, Hungary, Slovenia, and Estonia, with the EU to deliberate on accession terms. Poland finished the negotiations in December of 2002, and, along with 9 other countries, entered in 2004.

There is no understating the economic upheaval that followed Poland’s entry into the Western world, and while this was largely explicable by the transition from a command economy to an integrated liberal one, offering Poles the opportunity to blame the historical enemies of Poland, which consequently malign the European Union with association with the heirs to the Nazis, Soviets, Kaiser, or Tsarist Russians. According to a Reuters Special Report published in October of 2018, the popular memory of Germans and Russians razing the Polish land without successful aid from the Western allies dwells abundantly in the rural memory. The consensus of who is the enemy to Poland is not quite so clear, as long as the rhetoric feeds into the narrative of victimhood allowing PiS to justify its stances and actions as righteous.

Thus, through exploiting sentiments of Polish martyrdom, PiS laid the bedrock for increasing disillusion with the EU, and with Western Liberalism as a whole. Despite benefiting substantially from EU support, of which Poland has received more than any other member (upwards of 100 billion Euros), many Poles voice discontent with the foreign influence in internal affairs. Additionally, akin to worldwide sentiments, there is a pervasive mood that while Europe’s liberal aid may have made the nation richer, it is concentrated within the urban areas, and did little to improve the security of the state during economic and refugee crises.

PiS MOVES TOWARD OPEN DEFIANCE OF THE COPENHAGEN CONSENSUS

Coinciding with its collective malaise towards pan-Europeanism, the PiS begin a hostile takeover of the judiciary.

Beginning in November of 2015, Kaczynski and his party have instituted a relentless effort to infringe upon the independence of Poland’s Constitutional Tribunal. The Tribunal is the highest court in Poland arbitrating on the constitutionality of both international and domestic law, much like the Supreme Court of the United States.

PiS argues that changes are needed to balance the court politically and increase its efficiency. International critics contend that it destroys the checks and balances of Poland’s democracy. By doing so, it openly rebels against the European Union. As listed above, institutions such as an independent judiciary are critical to ensuring the stability of democracy, according to the EU requirements. Courts must be impartial to maintain the Rule of Law, in order to prevent backsliding into authoritarianism.

Additionally, the PiS party initiated reforms providing parliament with control of the National Council of the Judiciary, which controls appointments in courts. As PiS holds the parliamentary majority, the party now enjoys the right to nominate the majority of replacements to the Judiciary, while terminating the term of most existing members.

As of May 2018, PiS is set to take control of the Supreme Court. Law and Justice President Duda asserted control over the Court by granting himself considerable powers over its functioning, including the right to appoint its president, as well as a mechanism of “extraordinary appeal,” which allows the reopening of judgments at the purview of the presidency.

Holding the absolute majority parliament, the presidency, and these judicial bodies set Poland up for one-party rule. Whatever the legislative outcome of these procedures, the consequence of PiS’s refusal to abide by the rule of law means it’s arrangements are incompatible with Europe’s democratic values. Kaczynski himself has explicitly stated that not even the courts should have the ability to challenge the authority of the executive, thus effectively checking the party’s power. Polish intellectuals have referred to this systematic process as “a constitutional coup d’etat.”

DOMESTIC CHALLENGERS TO PiS

Despite the dilemma facing the international community, internal opposition may ultimately be the key to rescuing democracy in Poland. As of the 25th of February, five Polish opposition parties joined forces into an election coalition, releasing a statement promising to protect a democratic, law-abiding Poland. Fearing a Pol-exit, particularly in growing European alarm at Brexit, this ‘European Coalition’ maintains a strong platform advocating that the European Union is the guarantor of Polish safety, prosperity, and development. The opposition coalition is composed primarily of the Civic Platform (PO), as well as the Polish People’s Party, Democratic Left Alliance, Modern Party, and Greens. The Civic Platform is headed by the former Polish Prime Minister Donald Tusk, a noted critic of PiS and the current President of the European Council.

Despite building the pro-European coalition, POLITICO predicts that the alliance will win only 34 percent of the vote in the upcoming European Parliamentary election, compared to 40 percent predicted to go to PiS. The European Coalition would, therefore, consist of roughly 17 seats in the European Parliament, compared to 25 going to PiS.  Given this continued imbalance in EP, it does appear unlikely that PiS’s resolve to undermine EU institutions will wane. The predicted victory will arm PiS with continued opportunity to shift domestic politics into an illiberal system.

EUROPEAN REACTIONS LEAVE POLAND WITH A PRECARIOUS FUTURE IN THE EU  

Beginning in December of 2017, the EU has enacted Article VII of its EU treaty for posing threats to the rule of law within its domestic borders. Article VII is a procedure which suspends the rights of a member state of the European Union, however, there is no mechanism for expulsion. However, successful application of this check on Poland has proved challenging due to unwavering support from the sympathetic and also rightward leaning Hungarian regime. Identifying a breach of founding values of the EU requires unanimity excluding the state concerned, meaning that while the EU can sanction Poland, it is unlikely to be able to suspend Poland’s economic benefits from being a member. A failure to impose punitive measures on Poland poses a major dilemma for the Union, as it allows Poland to act per its authoritarian whims, with little threat of removal of the benefits provided by being a member of the EU.

That said, in September of 2018, the European Network of Councils for the Judiciary suspended Poland. According to the Human Rights Watch 2019 report, this was matched by many other smaller EU institutions acting against Poland during the year, including a ruling in July by the EU Court of Justice that Irish courts could block the extradition of Polish nationals to Poland if there were grounds to believe they would risk an unfair trial.

As the Union approaches the European Parliament election in May, the European Commission has proposed that the EU’s executive arm could be allowed to withhold funding from countries like Poland accused of violating the rule of law. This move is unprecedented and would break up the current stalemate threatening the foundational values of the institution. Thus far, sanctions have proved an empty threat, only strengthening Polish and Hungarian resolve to support each other in vetoing suspension of their respective rights.

This proposal, according to Bloomberg, would allow punitive action against corrupt regimes, placing power in the hands of the Commission itself and veto power in the hands of a qualified majority. Critically, providing the EU with the power to assess a country’s adherence to the rule of law may likely further nationalistic sentiments that Eu membership challenges the sovereignty of Poland. Nevertheless, in January, the proposal was met with overwhelming support in a vote notably by larger countries such as Germany, France, and the Netherlands. At this point, to put the proposal into law, member states must agree on its wording, which faces a tight time constraint, given the upcoming elections.

Unsurprisingly, as reported by Politico, in the week following the vote, Eurosceptic MEPs accused the Commission of creating the proposal for the purpose of intervening in domestic politics. The vote was notably split in an East-West divide across political affiliations, with Eastern nations, such as Croatia, Slovenia, Romania, and Bulgaria voting against the proposal.

Poland has pushed the EU to take unprecedented steps against a member of its own for the first time in its short history. The gravity of the situation cannot be understated; as an institution already losing popularity as met with the wrath of worldwide demagoguery and increasing isolationism, the Polish crisis threatens the existence of a fundamental guarantor of democracy in Europe.

It is unclear at this point how the Poles will react to the Commission’s heavy-handed approach; one can predict however given the deeper roots of Polish discontent, it may only feed the collective psyche of victimhood and of Poland as the trampling grounds for more powerful European states. The enemies of Poland are seemingly eternal, and the authoritarian logic of protecting the martyred fatherland against subservience to its neighbors, with all odds stacked against them, may be the fuel for the flames what spearheads PiS into maintaining control of Poland for an indefinite and uncertain future.

 

Featured Image Source: Wikimedia Commons