The new Polish government’s illiberalism: What the EU should do about it

by Roland Freudenstein & Konrad Niklewicz

Let’s be clear: This is not about ‘punishing Poland’. This is about proving that we are a Union built on values, that among those is liberal democracy (based on separation of powers, checks and balances and iron-clad guarantees for minorities), and that no member state government, however democratically elected, can flout its basic principles. And it is about reaching out to the many Poles who actually like the EU and are now worried about their country’s role in it.

Poland’s new government is losing no time: In its first couple of weeks, it has brought the intelligence services under the control of a politician earlier convicted for abuse of power, severely weakened the Constitutional Court (declaring it a politically biased institution) and undertaken rather strange shenanigans against a Polish-Slovak NATO Centre for Counterintelligence. Now it is about to bring public radio and television under the direct control of the government.

Next may be the Public Prosecutor and the rest of the judiciary, and then the Constitution itself. Law and Justice (PiS) is legitimising these steps by two main arguments: That all of this is necessary to ‘cure Poland of some illnesses’ and that the predecessor government by the Civic Platform (PO) did the same.  And protests from Brussels meet with indignation in Warsaw, and when they are made by Germans, with open historical resentment.

Let’s tackle these arguments and then ask what precisely the EU institutions and Poland’s partners should do now. As to the Constitutional Court’s fifteen judges, it is true that PO had nominated two too many in summer (when the risk of losing the elections was already clear), but when the Court declared PO’s move unconstitutional, PO took the blame and apologised.

Over the past eight years, the Court had annulled several of PO’s legislative projects. PiS’ actions, however, are of a completely different magnitude, such as: Having the PiS-supported President refuse to swear in any of the five, then nominating its own five judges overruling the Court’s protest, and finally the law severely hampering the Court (f.e. introducing a two thirds majority). When a right wing MP declared: ‘The interests of the people are above the law. When the law doesn’t serve the people, it becomes injustice!’ he received standing ovations from PiS – and summed up an ideology which rings ominously familiar to anyone who remembers Communist rhetoric before 1989.

The attack against the NATO facility may be just a bizarre episode but it has already enraged the Slovak government. Nothing of the sort ever happened under PO. But more importantly, the media law goes far beyond anything PO did. Four major international journalists’ associations[1] have already officially complained to the Council of Europe. The OSCE sees the ‘independence, objectivity and impartiality of public service broadcasters’ in danger. Surely, in Central Europe in general, parties winning elections often put their people in high positions in media and administration. The PO majority in Polish media supervisory bodies also gradually put people friendlier to the government into key posts. But it left a larger margin for pluralism: 3 months after the 2007 elections, a PiS-appointed functionary was still at the helm of public TV. And PO never thought about passing a law that would put the government directly in charge of media personnel decisions.

Hence, for all its sins in terms of arrogance and sloppiness, PO tried to follow the path of liberal democracy, navigating most of the time through the fallout of the global crisis. More importantly, it immensely increased Poland’s standing and influence in Europe. PiS, however, is making no false pretence: it wants the illiberal detour. Jarosław Kaczyński might be a very intelligent and well-educated leader, some even say: an erudite – but he’s no friend of Montesquieu’s trias politica. Toutes proportions gardées, he’s more into Machiavelli’s ‘The Prince’. And we all remember: That old Italian recipe had a lot of ingredients, but checks and balances were not among them.

Let’s spell it out: what PiS is doing, comes dangerously close to violating the Copenhagen criteria which are conditions for membership, which Poland signed up to and which clearly postulate the rule of law with stable institutions, minority rights etc. When Viktor Orbán’s government in 2010/11 made moves that were not in accordance with media freedom and an independent judiciary, the Commission raised its voice, and some laws were altered. At the very least, one should expect the same now. Consequently, Commission Vice President Timmermans[2] sent two requests for clarification to Warsaw.

The Commission is discussing PiS’ moves on 13 January, and the European Parliament on 19 January. There istalk about starting the Rule of Law mechanism created in 2014 which might, theoretically and after many intermediate steps, lead to a Council procedure to curb a member state’s rights, including voting rights, according to Article 7 of the EU Treaty. That’s what is called the ‘nuclear option’ in Brussels, and it would, in its last phase, require unanimity among all 27 remaining member states: Improbable, looking at the newsympathy between Viktor Orbán and Jarosław Kaczyński.

But the main purpose of clear words from Commission and Parliament in the upcoming weeks would be a different one: Demonstrating to Poles how quickly their government is dismantling the pole position in the EU that its predecessors had built up, and encouraging Polish civil society which is stronger than PiS expected, and which is criticising its government without restraint. For the EU’s popularity in Poland is one of the highest in the EU: Year by year, Eurobarometer polls show that the Poles’ image of the EU and its institutions is one third higher than the EU average.

Many in PiS will claim that such criticism, published abroad, amounts to high treason, as the dirty laundry should be a family’s best kept secret. We strongly disagree. Poland has been a member of the European Union for more than ten years. It has grown into the community the same way the community has grown into Poland. Poland has become a part of a common political, social and economic endeavour, its citizens are at the same time ‘Polish’ and ‘European’. What happens in Europe, influences Poland, and vice versa.

Moreover, Poland is not Hungary. After eight years of PO, its economy is in very good shape for a Central European country – so there is a lot of room for deterioration by PiS, whether we like it or not. There are now two opposition parties, PO and Nowoczesna, which are well organised. Polish Civil Society has responded forcefully to PiS within days. Opinion polls, for the moment, indicate that PiS has only a minority of voters on its side. Especially in Central Europe, governments can unravel if they don’t deliver. In this situation, the EU has a role to play.

And one last point: No one is happier about Central European governments’ illiberal drift than Vladimir Putin, for two reasons: First, because the rise in Euroscepticism weakens the EU and therefore the West, and second, because the weakening of checks and balances in EU member states gravely undermines our posture when we complain about Russian authoritarianism.

So, please, Brussels institutions, show some cojones and stand up for the values that our united Europe is built upon! But do it smartly. Germans, particularly, must be aware of historical sensitivities, but they should not stay silent just because of their nationality. Let Poland’s partners and friends have their say!

• This article first appeared on Martenscentre