Anna Elena Maria Ferrari 

There is a country in the European Union where it is feared that an ongoing attack to democracy and the rule of law is now in place, by undermining the Constitutional Tribunal and by putting under control of the Government the public tv an radio. Is it George Orwell’s 1984? No, it’s Poland 2016.

Recent events have casted doubts and worries, both internally and on the international level, after that the new majority party, Law and Justice (PiS), won the elections last October 2015 and made controversial changes that seemed to favor an unlawful increase of power for the PiS.

The political scene

Until last October, the party at the Government was Civic Platform (Platforma Obywatelska, PO). Civic Platform ruled for eight years, from 2007 to November 2015.

On 25 October 2015, the conservative party Law and Justice (PiS) won the general elections for the Sejm, the lower chamber of the Polish Parliament. Many said that, among the reasons for its victory, there was the strong dissatisfaction that many Polish people felt towards the previous ruling party.

The Constitutional Court issue

The first controversial issue deals with the nomination of five new constitutional judges and the rules on its functioning.

The new legislature began on 12 November, but before that date, on 8 October, the previous legislature appointed five new judges. They elected three judges for the seats vacated during the mandate of the outgoing legislature, plus two judges for the seats vacated after the beginning of the mandate of the incoming legislature.

The problem opened on the different vacating terms of the last two judges and the new government did not appreciate this action by the expiring legislature.

In response to that, the recently installed legislature amended, in a rushed way, the Law on the Constitutional Tribunal and, instead of limiting itself to re-nominate the last two judges, it annulled all the previous five nominations and nominated five entirely new judges.

It also adopted rules to shorten the terms of office of the President and Vice-President of the Constitutional Court. Moreover, the Amendments introduced the right for the President of Poland and the Minister of Justice to launch disciplinary proceedings against a judge of the Tribunal.

Shortly after, the Constitutional Court ruled for the constitutionality of the first three judges, while for the unconstitutionality of the last two judges appointed by the previous legislature.

The Constitutional Tribunal also declared invalid the shortening of the terms for President and Vice-President.

The President Andrzej Duda, however, took in the meantime the oath of all five judges nominated by the new legislature.

On 12 January, the President of the Constitutional Tribunal admitted to the bench the two judges elected in December 2015, replacing the judges outgoing in December.

Moreover, on 28 December the new legislature adopted new rules on the functioning of the Constitutional Tribunal. The Polish Constitutional Tribunal is made up of fifteen judges.

Now, In general, hearings of the Tribunal will require a full bench with the presence of thirteen out of fifteen judges, instead of nine judges needed previously. The full configuration decisions shall be adopted by a majority of two-thirds of the votes, instead of by simple majority required under the former rules.

According to the European Commission and other observers, these rules, requiring higher standards for the Constitutional Tribunal to judge, render more difficult the possibility for the Constitutional Tribunal to review the constitutionality of newly passed laws.

The fear is that the co-existing presence of the new elements in the Polish Constitutional Tribunal might result in the paralysis of the decision-making process of the Tribunal.

On 9 March the Polish Constitutional Court ruled that the Amendments on the functioning of the Court itself are unconstitutional, because a change that introduces a higher judicial majority by ordinary legislation (as the Sejm did) is contrary to the principle of the rule of law.

The Polish Government, anyway, refused to publish the ruling, which practically means to prevent it to become applicable.

This last breach might be seen as the most serious one in the whole Polish institutional crisis so far.

A new media law for the public service broadcasters

On 31 December, the Polish Senate adopted a new media law, that puts now the appointment of the Management and Supervisory Boards of the polish public tv and radio under the control of the Treasury Minister. Therefore, the public service broadcasters are no more an independent body. As a consequence, the previous Management and Supervisory boards were dismissed (and apparently replaced with people close to the Law and Justice party).

On the one hand, this law was harshly criticized abroad, also by European and international journalistic associations, such as the European Federation of Journalists (EFJ), the European Centre for  Press and Media Freedom (ECPMF) and the International Press Institute (IPI). It eventually raised the concerns of The Council of Europe and the European Commission. On the other hand, the Polish Journalists Association (SDP) seemed to approve the new law, stating that: “in the past there was no pluralism in the public media and this law represents a first move towards a fair public debate”.

The reaction of the European Union and the Council of Europe

Already in December, the Eu, worried for the state of democracy in Poland, started a dialogue.

The Polish Government requested a legal opinion from the Venice Commission (i.e. the European Commission for Democracy through Law, Council of Europe’s advisory body on Constitutional matters), as recommended by First Vice-President of the European Commission Frans Timmermans. In the meantime, it proceeded with the conclusion of the legislative process.

On 19 January 2016, the Polish Prime Minister Beata Szydlo was invited to take part to the plenary session of the European Parliament in Strasbourg.

She denied any breach of the rule of law or of human rights in Poland and therefore she did not see any need of EU monitoring. In her words, Poland wants to be part of the European Union, but does not appreciate external intromissions in internal affairs, which in her opinion should be solved only in the Polish Parliament.

On the other hand, many members of the EP recognized to Szydlo’s party, as the winning majority, the right to govern and to change laws in Poland, but not the right to change values, among which there is the rule of law, nor to use democratic tools to endanger pluralism.

Last developments: a solution still far

On 11 March, the Venice Commission published its opinion. It confirmed the rightness of the rulings of the Polish Constitutional Court.

The document deprecated the behavior of President Duda and of the Polish Government because European and international standards require the respect of the decision of the Constitutional Court. The composition of the Tribunal is important to let the Constitutional Tribunal act as the rule of law’s safeguard. Constitutional judges can never represent a particular political party and they should remain independent and loyal only to the Constitution.

So far, the President of Poland has not accepted the oath of any of the elected first three judges, nor the Government has accepted the unconstitutionality of the changes on the functioning of the Constitutional Tribunal. Thus, the current composition of the Tribunal remains disputed between the institutions of the State.

Some considerations on Poland

Poland is a member State of the Council of Europe since 1991 and of the European Union since 1 May 2004. By signing the Treaties and by ratifying them through the National Parliament, has given up part of its sovereignty to sovranational level, like any other EU member State.

In the EU Treaties, every member State agrees to respect fundamental values of the EU, among which there is the rule of law, as stated in art. 2 of the Treaty on European Union (TEU).

It also agrees on allowing the European institutions, namely the European Court of Justice, the European Commission and the European Parliament, as well as other EU member States, to judge how it maintains this obligation. In case of risk of serious breach of the values referred to in art. 2 TEU, caused by a Member State, a procedure of suspension of that Member State could start according to art. 7 TEU (so far, however, never used).

Therefore, using the argument of national sovereignty does not seem fitting well because Poland agreed that these issues can be discussed at European level. Moreover, the rule of law, the separation of powers (judiciary, executive, legislative) and the checks and balances system are all connected. Constitutional justice is a key component of checks and balances in a constitutional democracy.

Both the EU Commission and the Venice Commission stressed that democracy, respect of human rights and rule of law are the three co-existing elements that should always be in place. It is not possible to use democracy as an argument against the rule of law.

In this institutional crisis, both the previous and the present majorities in Poland took unconstitutional actions. Both are the result of a view that (simple) parliamentary majority can change the legal situation in its favor, also disregarding constitutional limits. Democracy, as stated in the Venice Commission’s opinion, is not the rule of the majority. The majority can not do whatever it wants, but it “is limited by the Constitution and by the law, primarily in order to safeguard the interests of minorities”.

Double standards and Euroscepticism

In this debate, some voices raised to underline that the action of the EU Commission seems justified in this case, but also to denounce the application of double standards in the activations of such EU procedures. For example, why Poland and not Hungary, whose recent behavior also casted many doubts? Or why is the EU acting in Poland now and not before, when the previous government also took doubtful decisions to empower itself? Some have called for an EU wide mechanism, based on transparent and objective criteria to assess all the member States, as well as the EU. The actions of the European Union would otherwise be perceived as unfair by many people in their own country, thus obtaining the opposite effect of boosting Euroscepticism.

The evolution seen in Poland, with the recent election of a party with strong nationalistic and conservative features, can be framed in the wider spectrum of rising nationalist parties across the whole Europe. Indeed, even if Poland is not the only country adopting controversial measures, what is happening over there is quite worrisome. The crisis seems far from being solved. It remains to see whether the Polish Government will follow the opinion of the Venice Commission and how the EU Commission will proceed.

Anna Elena Maria Ferrari

Read this article on The New Federalist.

The contents of this article are the sole responsibility of the author, and can under no circumstances be regarded as reflecting the position of ALDA and the European Union.