EUROPEUM Institute for European Policy

Since October 2015 when the Law and Justice party (PiS, Prawo i Sprawiedliwość) seized power in Poland, many controversial reforms has been enforced, which has provoked international criticism expressed mainly by the EU.

In spite of the radical steps beeing made by the government which disrupt the rule of law, public support of the party is still stable and as strong as ever.

The Law and Justice won the 2015 parlamentairy elections after the long eight-year rule of the coalition of the strongest opposition party Civic Platform (PO, Platforma Obywatelska) and the Polish People’s Party (Polskie Stronnictwo Ludowe). PiS was able to take advantage of massive dissatisfaction of Poles by offering them effective state governence and social improvement. The previous government was criticized for, amongst other things, with mismanagement of the poorer parts of the country and with the impoverished social conditions for young people. In spite of the fact that the Civic Platform had a positive image abroad, the voters wanted a change.

According to the de-facto leader of the party – Jaroslaw Kaczinksy – it is necessary to concentrate sufficient political power to get rid of all remains of communism which the liberals in the nineties has not suffieciently dealt with, in order to achieve the above-stated improvements.The argument of so called ,,decommunization” of Polish courts and society as such is often used to support the reforms. However, considering that the average age of the Polish judges is 38 years old, it is a strawman to accuse the judges of being „communized.“ By extrapolation, if the judges are „communized“, it would imply systemic corruption, which wouldn’t change with a change in the composition of judges. Thus, it looks like the ruling party is striving to put the judges under the political control. The Polish judiciary system definitely needs changes which would lead to removal of the endemic corruption, but is the political undermining of the courts really the right way?

The Supreme Court Bill proposed by PiS in July 2017 should have allowed the Minister of Justice to pension off the current judges and to appoint new ones, an unprecedent infringement upon independence of the judiciary, which has been widely criticized not only by the Poles themselves but also internationally. The European Comission has already expressed concerns about the changes in the Constitunional Court from December 2015 by sending a delegation to Warsaw and gave two recommendations to the Polish government which, however, haven’t been taken into account. The recommendations were based on the Venice Comission report, which was paradoxically asked for by the PiS itself. Poland reacted with rejection stating that it is not compulsary to listen to the suggestions. But what could the European Union or the other international actors do when Poland neglects or even backtracks on its fundamental obligations as members of the European Union?

In response to the measures affecting judiciary the European Commission launched an infringement procedure against Poland July 2017. This proceeding is a normal response by the European Union in cases where European law is violated or the EU directives are not implemented. The main reason to intervene in this instance is that the excessive authority of the Minister of Justice could undermine the independence of the Polish courts, which is a violation against the rule of law, one of the core values of the EU. Following an unsatisfactory answer to the letter of formal notice from the Polish side, the reasoned opinion was sent to Poland in September, which means the second step in the infringement process. If there are no changes Poland can be refered by the European Commision to the European Court of Justice.

The EU is still mentioning the possibility of triggering the Article 7 which has never been used so far. Nevertheless it would have to be approved by all EU-member states which does not seem realistic, since the Hungarian Prime Minister, Viktor Orban, expressed unbounded support for Poland several times. However, there is a fear of disunity among the EU-members as well, that could even worsen the unstable situation caused by Brexit.

The resolve to tackling the problem through dialogue is very strong because no one is interested in using the Article 7 and therefore the deadlines for the Polish governemtnt to fullfil the recomendations are still beeing shifted.

However, the Polish infringement upon the independence of its national institutions goes beyond the judiciary. It also reaches the educational system. In January 2017 President Andrzej Duda signed a law on the abolition of gymnasiums in spite of many protests orginized by parents and teachers. The reform had been already introduced last year and the government justifies it by trying to improve the schooling system, since gymnasiums are no longer efficient. Additionally, changes have been enforced in school curricula too. The emphasis should henceforth be placed on Polish language and history at the expense of matematics and foreign languages. This effort may be attributed to the ideology of the party that is to a large extent formed by conservative national elements. Sexual education concerning vital knowledge about contraception etc. will be abolished completely. All of this was enforced without any discussion with experts within the respective fields.

Another crucial reform regarding the public TV and radio broadcasting was introduced which is related to the appointment of their directors. The government supports its radical actions by saying that the media only promoted one opinion, namely the opposition’s, according the PiS. Paradoxically, according to PiS, this justifies infringing upon the independence of the media. The results are already visible: PiS has recently fined a Polish TV-channel covering an anti-government protest, thus acting more like an authoritarian regime than a democratic one by exposing their double-standards of what free media entails. According to the law amandement the directors should be selected by the Minister of State Treasury and on top of that the public media are now to become state companies. The leadership of these media outlets have resigned in protest. As an expression of resistence and protest, the radio broadcasts the Polish hymn and the unofficial anthem of the European Union once every hour.

We often hear that the reason for the reforms is to improve the efficiency of the state. However, the interventions in the media and education sphere should not be carried out under the pretext of greater efficicency. So far the undertaken steps give cause for concern, that the PiS is trying hard to maximize its control over the state.

We can see similarities among the CEE region. Even though much time has passed since the fall of communism, local democracies seem fragile and the countries still prone to authoritarian proclivities and leadership. Attempts to interfere with the media which act as one of the most important watchdogs of democracy are seen not only in Poland but also in Hungary and the Czech Republic for instance. However, under the pressure of the European Union, the Hungarian controversial media law restricting the freedom of speech had to be reworked. The tendencies to restrict the inconvenient media in many ways – by limitation their acces to press conferences, funding or by defamation, can be seen across the region, most recently in the Czech elections. The result of the 2017 Czech parliamentary election means that one man will probably concentrate power in both, the media and the political sphere, and we should not overlook this conflict of interests.

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