The Institute’s new policy officer, William Shrubb, examines recent threats to the rule of law in Poland.

Poland has been making headlines around the world over recent controversial changes to its public broadcasters and its constitutional court, made by the new conservative Law and Justice (PiS) government.

Critics say the changes represent a real threat to the rule of law, and the European Commission has begun discussions with the country under its new Rule of Law Framework.

This comment will examine the changes in Poland, and explore the ways in which they may be undermining the rule of law.

EC Rule of Law Framework

The Rule of Law Framework, adopted by the European Commission in 2014, aims to prevent the emergence of systemic threats to the rule of law in an EU member country. The Framework process is designed as a 3-step process.

First, the Commission makes an assessment of the situation in the member country, collecting information and evaluating whether there is a systemic threat to the rule of law.

Second, if a systemic threat is found to exist, the Commission makes recommendations to the member country about how to resolve the issue.

Thirdly, the Commission monitors the response and follow-up of the member country to the Commission’s recommendations.

In response to the changes in Poland’s laws, the Commission has initiated the first step of the Framework process, and is now in the process of collecting information about the alleged threats to the rule of law in Poland. The Polish Government has been invited to participate in the process, and has indicated that it is willing to do so, participating in a debate before the Commission in mid-January.

Changes to public broadcasters

The controversy stems from a series of recent legal changes made by the new PiS government, since its election in October last year. However, international media attention has focused on two changes in particular: changes to the public broadcasters, and changes to the constitutional court.

In early January this year, the government passed changes to the laws regulating the public radio and television broadcasters. Where the senior figures in those broadcasters were previously appointed by the National Broadcasting Council, they will now be appointed by the treasury minister.

The new law also terminated the current managers’ and board members’ contracts with immediate effect, allowing the government to replace them.

The move has drawn sharp criticism from around the world, including from the European Broadcasting Union, Reporters Without Borders, and the French Minister for Culture, as well as domestic political opponents.

Critics say the law undermines the independence of the public broadcasters, and is a serious threat to the integrity of the Polish press.

Changes to the constitutional court

The government also made controversial amendments to the functioning of Poland’s constitutional court late last year, prompting widespread protests across the country.

The changes stemmed from conflict over five appointments made to the court by the previous centre-right Civic Platform (PO) government just weeks before a national election that it was projected to lose. However, those appointees ended up not being sworn in by the Polish president, and five new judges were appointed by the PiS government. It is worth setting out the timeline in detail.

On 8 October, the PO government made five appointments to the constitutional court, to replace judges whose constitutionally-mandated retirement was imminent. Had these five judges been sworn in, fourteen out of the fifteen constitutional court judges would have been appointed by the PO.

However, on 25 October, the PiS party won a sweeping victory at the parliamentary elections, as opinion polls had long shown that they might. Following post-election negotiations, the new PiS-led government took power on 16 November.

On 19 November, PiS introduced the first of its changes to the court, purporting to annul the PO appointments, and retrospectively shortening the term of the two most senior – and PO-appointed – judges on the court.

Over the next few weeks, the constitutional court heard challenges to both the appointment of the five judges by the outgoing PO government, and the legislative changes brought in by the new PiS government.

On 2 December, on the eve of the constitutional court’s decision on the constitutionality of the PO appointments, the PiS appointed five new judges to the court. Four of the five judges were then sworn in immediately by the president – a former PiS member himself – and rushed to the constitutional court building, in a bid to take part in the court’s imminent decision on the PO appointments.

They were not admitted into the building.

Instead, the constitutional court released its judgment that morning, 3 December, finding that only two of the five PO appointments were unconstitutional, and recommending that the three validly appointed judges be sworn in. However, the president refused, arguing that this would take membership of the constitutional court over the constitutionally mandated 15-member limit.

The court remained deadlocked until late December, when the PiS announced further changes to the operation of the court. The quorum for the 15-member court to make decisions has now risen from 9 to 13, and decisions must be made by a two-thirds majority, rather than the previous simple majority rule.

Diagram of Changes to Poland's Constitutional Court

Figure 1. Changes to the quorum and majority required to make decisions in Poland’s Constitutional Court

Critics say these changes undermine judicial independence, and were made so that PiS could secure its position on the court before the next election, scheduled for 2019.

Since the court must now have a quorum of 13, it will be forced to accept the PiS judges, critics say, in order to even be able to hear arguments on the constitutionality of the new laws, or on the constitutionality of the new judges themselves.

But with the five new judges, as well as the one remaining judge appointed by the PiS when it was last in government from 2005 to 2007, it may no longer be possible for the court to achieve the necessary two-thirds majority to quash the new laws. A 6-member PiS faction, combined with the new quorum and majority rules, would be enough to stymie the court.

Threats to the rule of law?

Both of these legal changes have drawn strong criticism from within Poland and around the world.

Nevertheless, they also merit closer investigation before being classed as threats to the rule of law in a country that, not so long ago, was being held up as an exemplar of vibrant post-Soviet democracy. What is actually going on in Poland?

The first point to make is that being concerned about the changes made by the PiS is not the same thing as supporting the appointments made by the PO just weeks before an election. Any attempt by a government, staring down the barrel of unfavourable polls, to maintain influence through stacking the judiciary also undermines the rule of law, and harks back to the power maintained by old communist elites through their domination of the judiciary in the early years after the fall of the Soviet Union.

Secondly, manipulation of court membership by different sides of politics is hardly endemic to Poland, nor is it necessarily incompatible with the rule of law.

For instance, the 9-year term limits on appointments to the Polish constitutional court – limits that would be anathema to many rule of law supporters in Australia as an indefensible attack on judicial independence from political influence – grew out of Polish attempts to open the judiciary to non-communist judges after 1989. The whole point of the term limit was to make the judiciary more open to political influence; an understandable response to years of Communist domination of state institutions. Such a change is not, without more, evidence that the rule of law is being undermined.

Similarly, concerns over the changes to the public broadcasting laws may also be warranted. However, again, a closer look is also important.

While the new laws may increase political influence over public broadcasting in Poland – depending on how the powers of appointment are exercised – it is worth noting that public broadcasting, and the National Broadcasting Council in particular, have been criticised for serious political bias many times over the last few decades. Allegations have long been made that post-communist parties manipulated the appointment process to the Council to control the content of public broadcasts.

Moreover, in 2012, before the election of the current PiS government, the Council was the subject of a report by the Helsinki Foundation for Human Rights concerning its failure to provide clear selection criteria for the award of broadcasting licenses, leaving the process open to abuse. The report followed the Council’s 2011 decision not to grant a license to Poland’s only Catholic television station, which precipitated widespread protests.

Finally, we should hesitate to dispense advice to a country whose history and politics is so different in many important respects from Australia, without further consideration of Polish circumstances.

In particular, the importance of democracy and democratic control to a country that has spent so many years without it ought not to be ignored.

As a result of its history, Poland may consider that the power of the people ought to extend further than it does in Australia. This is not in itself a reason for concern. The democratic process in the United States, for example, extends to situations that might seem bizarre to Australian observers, like the election of judges and public prosecutors. Again, without more, this is not evidence that the rule of law is being undermined.

Concern is warranted

Nevertheless, both the changes to Poland’s public broadcasters and its constitutional court warrant concern.

In the famous words of Viscount Hewart, Lord Chief Justice of England before the Second World War, “not only must Justice be done; it must also be seen to be done.”

The changes to the membership and governance of the constitutional court have seriously undermined the appearance of independence and impartiality in the Polish judiciary. Public confidence in the legal process is fundamental to the rule of law, since convincing people that disputes brought before a court will be dealt with fairly and reasonably is a necessary step in convincing them to abandon other, less congenial, dispute-resolution options.

Similarly, changes to the public broadcasters are hard to justify. Arguments about previous political bias are unconvincing; bias is unlikely to remedied by undermining the independence of the broadcasters. The arguments in favour of opening judicial institutions to more political influence do not apply in the media environment – not everybody can set up their own court, but they can set up a newspaper. Indeed, TV, radio, and print media from across the political spectrum has been an encouraging feature of Poland since its independence.

In addition, concern is warranted not only because of the specifics of these changes, but also the manner in which they have been made. They have formed part of a general move to undermine dissent or opposition in Polish society, which has seemed to animate the PiS since its election.

As commentators have noted, the changes in Poland bear a worrying similarity to changes made in Hungary over the last few years.

There, in Viktor Orban’s self-described “illiberal democracy”, laws have been introduced criminalising ‘unbalanced media coverage’, non-Christian religious organisations were briefly stripped of tax-free status, the constitutional court has been packed with government loyalists, and human rights NGOs are regularly criticised as fifth columnists promoting foreign interests.

In the face these changes, the European Union found itself powerless to protect its values, unless it was prepared to exercise the so-called “nuclear option” of suspending Hungary under Article 7 of the EU Treaty. This experience was fundamental to the European Commission’s decision to formulate the 2014 Rule of Law Framework. No other country has yet been dragged before the Commission under the new Framework: Poland will be its first test.

Strengthening the rule of law

So although arguments may be marshaled in support of particular changes made by the new PiS government, the changes, when taken as a whole, appear to be part of a general move on the part of the government to stifle dissent and opposition in Polish society.

As a result, they raise concerns that the rule of law in that country may be being undermined.

The European Commission’s dialogue with Poland will be a real test of its capacity to deal with threats to the EU values set out in Article 2 of the EU Treaty.

While the PiS may trumpet its democratic mandate – which is indeed impressive in recent Polish electoral history – democratic control must be consistent with respect for key rule of law principles. These include respect for judicial independence, and fundamental rights like freedom of the press.

Further reading

Tomasz Tadeusz Koncewicz, ‘Polish Constitutional Drama’.

A.K. Duszczyk,‘Enforcing the Rule of Law: The Case of Poland’.

Wojciech Sadurski, ‘What Makes Kaczynski Tick?’.

 

Thanks to Rule of Law Institute governing committee member Professor Martin Krygier for his input on an earlier draft of this article. The views and opinions expressed in this article are those of the author.

 


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