Does the EU have the ability or initiative to do anything about Poland’s move to becoming more and more authoritarian? Have they so far?
For now, the matter remains internal: so long as they’re not doing something that breaks the treaties or the conditions to be a “member in good standing”, the EU can’t do anything. If and when they do, the available responses will depend on which specific line has been stepped on.
The EU isn’t a superstate, and it’s been carefully constructed to balance common commitments and national sovereignty, which limits its legal competence to intervene in domestic issues, just as NATO never intervened to prevent authoritarianism or promote democracy in Greece, Turkey, Portugal or Spain.
However, one of the commitments of EU membership is to fundamental constitutional rights and the EU Commission has the Polish government in its sights:
https://www.theguardian.com/world/2017/jul/19/poland-may-lose-eu-voting-rights-over-judicial-independence
That said, I think you could expect any action in this to be resisted by at least the Czech and Hungarian governments as well.
Also, individual breaches of human rights can be pursued through the separate organisational systems under the European Court of Human Rights.
And another case in point: EU takes Hungary to ECJ over crackdown ‘aimed at George Soros’
The other story I referenced relates to a possible political decision in the Council of Ministers (=the governments of member states) on the application of a fundamental requirement of the EU treaty, where this case is a question of the the Commission asking the Court of Justice to apply existing EU laws. I seem to remember decades ago President Kennedy answering a hostile question on some piece of civil rights/anti-discrimination legislation by saying that it would all depend on how the circumstances related to “inter-state commerce”, which I took to mean that was the limit of federal US competence, which seems comparable to the use of the ECJ.
The ECJshould not be confused with the European Court on Human Rights (which pre-dated the EU, and includes many more countries).
Pretty much.
Those folks in the US who believe in the “50 sovereign states loosely coupled” model argue that the vast majority of the growth of Federal power in the last 100ish years has come through overweening misapplication of the “commerce clause.”
It certainly is the crack into which the Feds put their wedge when they can’t come up with another more direct constitutional basis for some action.
Which is kind of a delicious circular irony.
Many of the rabid States’ Rights crew are the same people who believe that civil society is mostly a fiction and that “society” is simply a side effect of what really matters: an economy. If true, then the most important thing a government does is nurture & manage that economy. Which means the “commerce clause” rightly *is *the Prime Directive for Federal action. Which is the opposite of what these folks say they want it to mean.
The EU has the ability to do something about it, but is democracy really under threat in Poland? If you don’t mind, is there a cite on that?
Just follow any (well, non-Polish) European news outlet. The worries about Polish democracy are very much on people’s mind.
They’re also trying to weaken judicial independence.
The EU is worried about the advance of political control over the judiciary in Poland. It is an argument that has a been brewing for some time now and the EU has similar issues with Hungary and the Czech Republic. The countries tend have had little experience of immigration, unlike western Europe and are dominated by conservative patriotic parties that want changes to the constitutions of their countries that preserve their power. The EU is worried about this and there is the suspicion that Russia is trying to extend its influence in these countries by supporting nationalist, populist politicians who pursue anti-immigrant policies. The reaction of these East European countries during the Syrian refugee crisis was a wakeup call for the Western countries in the EU. The big lever the EU has is that they have been bankrolling the economic development of these countries since they joined the EU. Even the most rabid nationalists remain quite keen on being on the receiving end of this financial support.
There are plenty of articles about it, it is one of the political fracture lines that divide the EU.
I for one would like to hear the other side of the story as well. I don’t know what is going on in Poland exactly but it is possible, for example, that the previous political establishment should have impregnated the judiciary with loyal henchmen who exert political opposition disguised as acts of justice.
An important issue mentioned by critics is the appointment of the Constitutional Tribunal members. They say judges have done that so far in Poland. In my country, members of the so called Constitutional Tribunal are appointed by both the President and the Parliament. I am not sure whether there are other institutions involved. Who is appointing members of the Supreme Court in the USA? Is it strictly judges?
The discussion is pretty technical and I wouldn’t rush to conclusion.
Correct me if I am wrong, but I believe it one of the privileges of the President to appoint Supreme court judges, when a vacancy exists. US Presidents like to leave their mark on the US by appointing supreme court judges that reflect their politics. But they are somewhat restrained by the fact that that it is a job for life. That way they are usually there far longer than any President and the political influence is less.
A similar system exists in Poland, with a lot more judges, but there have been attempts to change the way judges are appointed to bring them under political control of one party.
Last time this happened, the EU threatened to suspend Polands voting right in the EU on the grounds that there has been a breach of the fundamental rights to which all EU members must agree.
Looks like judges are forced to retire at 65 unless the President allows it, which makes about 40% of them are over that age and then appointments are made by a committee loaded with supporters of the ruling party.
Poland is becoming quite a big fish in the EU because of its growing economy. More so now that the UK is leaving. The current administration is the kind that Trump approves of.
There may be trouble ahead…
I’ve made the effort to grasp Poland’s situation a little better, but I’m not sure I understand it well.
This is the first source I read: Polish MPs pass judicial bills amid accusations of threat to democracy | Poland | The Guardian
After reading it, my feeling is everybody should understand that the current judicial reform in Poland is being carried out with a large support of the electorate. People have voted the current conservative president and parliament majority partly because they had had enough of the way the previous political establishment had dealt with the judiciary.
From what I understand, the Polish were dissatisfied by the fact that trials were delayed indefinitely while prosecutors and judges were never accountable for these delays.
Here’s a quote from the source above: “The government describes the plans as a necessary means to speed up the process of issuing judgments and to break what it describes as the grip of a privileged caste of lawyers and judges.”
Here’s what this other source (International watchdog: Polish court reforms pose ‘serious risk’ - Radio Poland :: News from Poland) has to say: “Supporters of the conservative Law and Justice (PiS) party, which was elected in late 2015, have criticised Polish courts for taking too long to hear cases, and have accused judges of being an elite, sometimes-corrupt self-serving clique often out of touch with the problems of ordinary citizens.”
And here’s another cite (http://www.topix.com/world/poland): “Supporters in the conservative Law and Justice party said the changes would make Poland’s courts more efficient and more accountable to regular citizens by giving elected representatives a role in choosing judges.”
I don’t know about the US, but in Eastern Europe there are two basic problems with the judicial power (in my opinion): (1) its members can easily form an elite with special privileges and virtually no accountability for their activity and decisions, and (2) judicial officials in key positions are appointed with political support and they are likely to illicitly support their original patrons against the public or the law due to their de facto unaccountability.
The article in The Guardian shows the opposition to the government’s plan: “But a coalition of civil society groups has warned that Poland will definitely cease to be a democratic state of law once he legislation is approved by the senate and the president and becomes law.”
One should be aware of the following aspects regarding these ‘civil society groups’: (1) they represent the views of a minority of Polish people because most of the electorate is supporting the conservative president and parliamentary majority, and (2) they are typically financed by foreign entities, which seems to be regarded by a lot of the Poles as an illicit attempt to distort Poland’s political life because these NGO’s are partisans of the opposition disguised as non-politically engaged groups while, in fact, assisting opposition parties in their struggle to maintain their old influence and possibly win the political power again.
I’m not sure if the West is familiar with the manner in which an obedient judiciary can serve the political establishment, but this is what I’ve seen in Eastern Europe: Corrupt politicians are de facto unaccountable with the help of the judiciary, who prolongs their trials indefinitely until they can no longer be charged with anything because the Penal Code includes various deadlines when each crime becomes too old to be prosecuted. In addition, when the political establishment gets ousted by the electorate, their loyal henchmen in key positions of the judiciary can prevent the new political establishment from implementing its reforms by declaring the new laws unconstitutional and by prolonging the process of prosecuting and trying certain people.
As I have already stated, I don’t know exactly what the situation in Warsaw is, but I can see the most major fallacy Western critics are making when trying to asses what is going on in Poland: they are ignoring the fact that key officials in the judiciary are not politically impartial because they were promoted and appointed by those who wrote and implemented the new Constitution in 1997. As I see it, the real threat is not that the judiciary will lose its independence, because at its highest level there is no such thing. The real “threat” is that the judiciary will no longer be able to support the politicians who have been removed from power by the electorate.
The conservative forces in power are trying to create a breach by appointed their own loyal henchmen in key positions (The Guardian): “The Supreme Court legislation will force all Supreme Court justices over the age of 65 to retire, unless their terms are extended with presidential approval.” I wonder whether they serve for life in the Supreme Court (or Constitutional Tribunal). “At the moment all members of the KRS, a body tasked with safeguarding the independence of courts, are selected by other judges.” (International watchdog: Polish court reforms pose ‘serious risk’ - Radio Poland :: News from Poland)
In my country, Supreme Court members serve for only 9 (or so) years, and every time a member is released (because of reaching the term, being appointed in a different position, such as an international court, or even passing away) the President and Parliament take turns in appointing new people. I find the way things happen in my country more balanced.
But at the same time, the conservatives seem to be trying to put an end of some of the abuses that may have happened so far. Here is what this other source (The Warsaw Voice) says: “President Andrzej Duda and ruling party Law and Justice (PiS) leader Jaroslaw Kaczynski reached a final agreement on the shape of the judiciary reform, daily Dziennik Gazeta Prawna writes citing own sources.
Most importantly, the two politicians agreed that prosecutors will not be able to nominate candidates for National Judiciary Council members, according to the newspaper.” This decision makes me think that prosecutors may have had a disproportionate power within the judiciary. I believe the National Judiciary Council should include judges only, but I’m no expert and I could be wrong.
Another cause of dissatisfaction for critics is that there is a possibility that certain cases should be tried again: “It includes a new mechanism of “extraordinary appeal”, whereby almost any case adjudicated since Poland’s present constitution was adopted in 1997 can be reopened if doing so has the support of the prosecutor-general, who is also the justice minister.” The mechanism of ‘extraordinary appeal’ already exists in my country’s legislation and it is used to re-try certain tricky cases. I’m not satisfied with this extraordinary appeal, but it’s been devised so that certain Gordian knots could be dealt with legally.
My opinion is that we should allow Poland’s president and ruling party to implement their reform and see whether real abuses will occur after its implementation. On the one hand, I’m sure the electorate will react if they see new abuses. On the other, I would really like to hear the specifics of what caused the conservatives to initiate the judicial reform and the electorate to massively support them. In the absence of these details, we’re only guessing.
If the politicians decide that the judges are a corrupt and self serving elite, then it is better better for the politicians to watch over them?
I guess that argument would work if the politicians themselves were not also a corrupt and self serving elite.
Who guards the guardians?
I don’t doubt these countries with fairly recent post-Soviet constitutions need some tweeks to make them work better, but it is a dangerous business. Pretty soon they will end up with a single party state and some wise uncle take control for everyone benefit. Just like in the old days.
A very large number of Poles live in other parts of the EU. There are many here in London. Their politics are very different from the old folks who live back home.
:dubious:
So far the media has covered both the protests and the demonstrations for support and in both situations I saw people of all ages marching in the street.
The idea that the conservative majority would like to reinstate dictatorship in Poland is preposterous. It is the loudest political voice in Poland fighting the influence of former Communists and secret police members. The name of their party is Law and Justice and its present popularity stems from people’s dissatisfaction with the corruption of the judiciary and the former political establishment.
Another preposterous idea is that Law and Justice would support Russia’s influence in Europe. Even though it opposes the creation of a European superstate, Law and Justice supports the country’s alliance with the EU and the United States. While being an anti-communist party, Law and Justice does not cooperate with the far-right or nationalists either. Law and Justice has constantly fought the influence of Russia in various affairs and is dissatisfied with the strong economic ties (as they seem to see them) between Germany and Russia.
If we talk about democracy, shouldn’t it be the electorate?
The electorate only vote once every few years, plenty of time for a government to go out of control. What keeps them in check is the judiciary and the constitutional law.
A constitution modified to allow a political party or leader to dominate and pass laws that are unchallenged because the judges are their political appointees? Very dangerous.
Suppose for a moment that the current law and order party is full of very noble statesmen in which the electorate can have complete confidence. What about the next government or the one after that? What if a party and leader come along who are intent on extending their political control so that they will never be out of power?You don’t have to go far to find examples of that in Eastern Europe. Modifying the constitution may have unintended consequences that Poland will have to live with for generations.
The EU is right to be concerned about this or it may end up with members who have democracies that have more in common with way things are done in Russia.
In the USA, Supreme Court justices are appointed by the President and the Congress (the Senate, more specifically), which makes them political appointees. This is considered a democratic mechanism.
If Supreme Court justices become political appointees in Poland, it is considered a non-democratic mechanism. This is the type of double standard that can fuel the growth of the anti-EU spirit.
Quite true. At the same time the US experience is instructive. We’ve had no change in our institutions on paper in couple hundred years.
But the groundswell of aggressive partisanship of the last 20 years means that the exact same words on paper end up with rather different consequences on the ground. And with waning patience on the part of some of the electorate for those changes.
Democracy, both at the populace level and at the elected/appointed official level, requires as a very deep and fundamental foundation that everyone’s respect for the process, the institutions, the opposition, and for righteousness in general greatly exceed the desire for power or any particular outcome.
Absent that, real quickly you get the “democracy” of Mugabe. All form and *much *less than zero substance.
All the former Eastern Bloc countries, including your own Romania, are struggling to develop a polity and a political and business elite which are anything other than self-serving. We in the traditional West, from Greece to the US and many in between, are struggling with the natural tendency of power elites to form and entrench themselves first by fair means and later by foul.
Where is Poland today on that spectrum? And more importantly, which way are they going? I’m behind on my current events so I won’t hazard an opinion.
But the mere fact that the current lot is removing a corrupt and self-serving elite is not *necessarily *an improvement; we need to look at who/what they intend to replace it with. Brazil is currently struggling with the aftermath of discovering that no matter how many times they clean the stables or who does it, the current broom wielders are about as dirty as the last set, just in a slightly different direction.
Both major parties in Poland are opposed to Russia, to a much greater degree than elsewhere in eastern Europe. (Understandably so, because Russian imperialism in Poland dates back to 1772, not just to 1945). Civic Platform is pro-EU and anti-Russia, Law and Justice is anti-both.
It’s also mistake to refer to Law and Justice as “the conservative” party, it’s fairer to say both parties in Poland are conservative and consider themselves broadly on the right. Law and Justice is more conservative on cultural issues and less right wing on economics, Civic Platform is the opposite.
It’s the unlimited interpretation of the commerce clause that people have an issue with.