From Constitutional Court reforms that make the judiciary less independent of political power to restrictions on journalists to suppressing of the opposition, Poland’s ruling Law and Justice (PiS) party is causing a commotion within the European Union (EU). European authorities consistently make their displeasure with the Polish government actions known, but there is very little they can do in practice. Moreover, it is unclear what the state of democracy is in Poland right now – the country can not be labeled authoritarian, but it seems less and less of a liberal democracy.
The Cipher Brief’s Kaitlin Lavinder spoke with Aleksander Smolar, President of the Stefan Batory Foundation in Warsaw, to get his thoughts on current Polish politics. Between 1971 and the end of Communist rule in 1989, Smolar was an active member of the Polish diaspora on behalf of the opposition.
The Cipher Brief: It seems like the recent political controversy in Poland started with the election of the Law and Justice (PiS) party in the autumn 2015 and the party’s attempted takeover of the Constitutional Court. Is this an accurate interpretation?
Aleksander Smolar: You could say so. After the election, the problem of the Constitutional Court became the first major issue and the source of conflict between the new authorities of PiS and the opposition parties, and also between Polish authorities and the European Union.
TCB: Can you explain that tension between Polish authorities and the European Union (EU)?
AS: The EU recognized that the way Polish authorities were dealing with the Constitutional Court was unconstitutional from the point of view of the Polish Constitution. The EU cannot apply norms to member countries other than the specific national norms of the member states. So the EU used a Council of Europe Venice Commission, composed of legal specialists from many democratic countries (including the U.S.), to look into what has been happening in Poland. The Venice Commission’s judgment was quite severe on the way Polish authorities were dealing with the Constitutional Court. As a consequence, the European Parliament is holding plenary sessions to discuss the Polish case.
TCB: The EU has stopped short of enacting sanctions against Poland, which would suspend Poland’s voting rights in EU bodies. Do you think sanctions could be imposed in the future?
AS: I don’t think so, because you must have a unanimous decision of all member states, and there is at least one member state – Viktor Orbán’s Hungary – which declared quite some time ago it would certainly vote against any sanctions against Poland. There is a sort of alliance between these two countries – Poland and Hungary – which are heading more or less in the same direction, which was named almost 20 years ago by (journalist) Fareed Zakaria as illiberal democracy.
TCB: So it seems like the EU doesn’t have much actual power over what’s going on in Poland’s internal politics – is that correct?
AS: That is correct, although we cannot say the EU is totally deprived of any possibility of influencing Poland. First of all, naming and shaming has a certain power, especially in a country like Poland, where the EU is still very popular. Poland is the country in Europe where the EU is probably the most popular, where the European Administration from Brussels is judged more credible than the Polish Administration (not only under the current Polish regime of Law and Justice, but this was the case previously as well).
Second of all, there are other means of indirectly punishing Poland. There are some budgetary privileges the EU could restrict. For example, Poland is the country that receives more important subsidies from the EU than any other European country.
Of course, the EU cannot directly punish Poland, but there are other and more severe ways to pass judgment on the Polish government. Poland used to be quite influential in the EU, for example. Today, the Polish position on topics is viewed as much weaker.
So those are all factors which cannot of course have a decisive role. The EU cannot impose anything on Poland, but still, we cannot say these indirect measures are without importance.
TCB: Public protests against the Polish government over the past few weeks have been intensifying. Do these protests have any effect on the ruling Law and Justice party?
AS: There is certainly an effect, but publically, the result has actually seemed quite the opposite of what the protestors desire. Recently, for example, there was a sort of declaration in a press conference by five key persons of Law and Justice: PiS Leader Jarosław Kaczyński, Prime Minister Beata Szydło, the two leaders from both chambers of Parliament, and the leader of the PiS parliamentary group. Those five people tried to show that they are very open, that there is nothing coercive in what they are saying, that they are ready to collaborate and work with the opposition. But at the same time, there was no any substantial promise of change whatsoever.
Regarding the Polish government’s conflict with journalists, the latest conflict was provoked by the fact that Law and Justice tried to restrict the access of journalists to Parliament. This conflict is not resolved but rather postponed until the beginning of January. So in a way, the status quo ante is maintained, and the journalists have access to Parliament.
But as to a key issue decision of the Polish Parliament concerning the government’s budget – the most important decision of the Parliament – PiS refused to allow a re-vote, even though PiS would not run the risk of losing the re-vote because they have the majority. But PiS does not want to recognize that there were quite obvious irregularities in the parliamentary debate on the budget on December 16, in which parliamentarians from the opposition had no rights to pose any questions or any proposals and were practically not admitted into the room to vote. Then there was this high level of uncertainty as to whether there was really the necessary majority for the budget to pass and who in reality took part in the vote. It was really a mess. But PiS does not want to question its procedure or the results of this vote.
TCB: How much is Jarosław Kaczyński, the head of PiS, the leading force behind these actions (like the refusal to do a re-vote on the budget)?
AS: Mr. Kaczyński is a key person in Polish politics today. This is a power without formal responsibility, because he isn’t exercising any formal function – he’s simply a parliamentarian. But he is called by his own people the “chief,” and he really is the chief of Poland today. He is the chief of the President. He is the chief of the Prime Minister. He decides about everything, and nobody is even trying to create a different image. Everybody has recognized the reality.
TCB: You mentioned a little bit earlier Fareed Zakaria’s idea of illiberal democracy. In your opinion, what is the current state of democracy in Poland today?
AS: There are several changes that have already occurred which have limited the liberal character of democracy in Poland, with the objective being to get rid of a system of checks and balances, giving the ruling authorities power that is not limited by the law. The Constitutional Court issue is one example. Until the end of 2015 (when PiS gained parliamentary control), we had a real Constitutional Court, in the tradition of the U.S. Supreme Court – that is, independent from politics. The different judges could have different opinions, and quite often in the past, they were associated with different political parties. This could be finished. Fortunately, I cannot say that this is totally finished. There will be conflict that continues between PiS and the people who want to save the independence of the Court.
Another example – Poland used to have an independent persecution office, but it’s totally dependent on the ruling party now.
We used to have independence in naming people to office, not for political reasons, but only as a consequence of their competences and their capacity to exercise a function. We used to have several conditions to appoint these people, but these conditions are removed today, and anybody can be named from one day to the next—a political appointee or a party member, without competence and quite often without even elementary education. We have quite grotesque cases of people being named to important posts in the Administration without any qualifications.
We have new educational reforms, with the quite clear ideological objective to create a new “Pole:” one that is conservative, nationalist, and a devoted Christian.
Then there is public media, which was never perfect, this is true – the politicians always tried to impose their views on the media. But we have now total domination of media by the Law and Justice party. These radio and TV programs remind many Poles of what we had during Communist times. Of course, the message is different – it is now conservative and nationalistic – but it is selective like in the past and represents 100 percent the opinion of the ruling party.
So in many domains, the limitations imposed by the principal of liberal democracy – that is, the U.S.-style system of checks and balances – have been removed one after another, and we have total domination of the ruling party.
Now to the conclusion. I cannot say that we do not have democracy at all in Poland anymore. Of course we still have political pluralists and a quite strong opposition – although without any possible influence on the political process. We still have an independent and ordinary judiciary, but it will be changed, and everybody knows that PiS is preparing a total recomposition of the judicial system to make it more dependent on the political authorities. We still have pluralism of media. Fortunately, there is a private sector which is quite strong and which is independent of power (although even here the authorities are trying to exert their influence). Finally, Poland is an open country, so there are hundreds of thousands of people who travel to Poland, and who can see what Europe looks like with their own eyes. To create a new system and base it on pure lies is not that simple. So this is certainly not yet an authoritarian system, but Poland is more and more an illiberal democracy.
