Poland Refuses to Read from the Eurocrats’ Script

By Michael Brendan Dougherty
Tuesday, January 02, 2018

Ryszard Legutko, a Polish political philosopher and member of the European Parliament, voiced his frustration with Brussels in late December as it gathered itself to start proceedings against his home country for undermining the rule of law. He complained of an “unprecedented obsession” with Poland among Eurocrats, even as the same turned a blind eye to what happened in Catalonia last year.

It is hard not to have some sympathy with him. Just before Christmas, the European Commission decided to go after the elected government of Poland, invoking Article Seven of the Lisbon Treaty, which if followed all the way through would strip Poland of its voting rights within the European Union. The EU has never done this before. Even when it complained about 2011 reforms in Hungary, to which the current reforms in Poland are often compared, it made no move to strip that country of its voting rights. It has taken no concrete action against EU candidate Turkey, despite the Erdogan regime’s much more worrisome descent into authoritarianism.

Europe’s leaders were supposedly invoking Article Seven for high-minded reasons, but during the session of European Parliament, Legutko found himself beating back rhetorical taunts that his post-Communist society was selfishly using the European Union as a “milk-cow” and disregarding the rules.

The Hungarian novelist Tibor Fischer, nobody’s idea of a right-winger or populist, is a keen observer of European politics. He recently wrote an essay about the newfound political assertiveness of the former members of the Habsburg Empire, and the baffled, offended reaction of Western Europe to that assertiveness. Throughout the Visegrád Four — Czechia, Hungary, Poland, and Slovakia — there is frustration with “double standards,” Fisher wrote. “If you’re a former Soviet Bloc country you are subjected to frequent cavity searches, while older members of the EU don’t even have to turn out their pockets.”

To see what he means, one need look no further than the issue of migration. One of the great points of recent contention is the EU’s insistence that Poland should accept an EU-imposed quota of refugees to ease the burden on Italy and other nations. Poland points out that by doing so, it would be breaking rules set by the EU itself. Angela Merkel’s great 2015 invitation to over a million migrants and refugees and the actions of several other European governments during the migration crisis violated the Dublin accords that member states had signed on to. Further, no Visegrád Four government could accept these quotas and remain long in office. A 2017 poll found that only 9 percent of Poles disagreed with the statement “All further migration from mainly Muslim countries should be stopped,” while over 70 percent agreed.

But the act that precipitated the EU’s Article Seven proceedings was the elected Polish government’s attempt to reform the country’s judiciary. Previously, the Polish judiciary was run like a medieval guild, with judges nominating their own successors. On occasion, the sons of existing judges would get preferential treatment over qualified law professors. Judges protected one another from lawsuits and pay freezes, like members of a self-governing union. Having run their campaign promising to do the unfinished work of the 1990s in reforming Poland’s judiciary, the ruling Law and Justice party (PiS) has been passing aggressive reforms that bring more democratic checks on the judiciary and retiring some judges, on the theory that the judiciary never went through a post-Communist lustration. “The judges will cleanse themselves” Adam Strzembosz, a famous Polish jurist, said after the fall of the Communist regime. Strzembosz, who opposes the current reforms, has admitted his prediction never came to pass.

Anne Applebaum, the eminent historian of Communism,  writes about the conflict between Europe and Poland over the reforms:

Two years ago, a democratically elected Polish government, led by a party that calls itself “Law and Justice,” began illegally dismantling its own constitution. The process began with illegal appointments to the Constitutional Tribunal, and has, according to a European Commission investigation, included the passage of 13 laws designed to undermine the independence of the judiciary. This week, the Polish government signed into law a broad judicial “reform” that will, among other things, require about half of senior judges to resign and give the current minister of justice, who is also the chief prosecutor, unprecedented personal power over the selection of new ones.

In the same column, Applebaum deploys the cliché used most often in articles about Poland’s recent turn: the idea the nation was until the last election “widely perceived as a model democracy.” It is with these words that Polish political history is given its own prelapsarian myth. Until 2015, all was well. Then PiS took a bite of the apple.

But what was the state of play before PiS came to power? Applebaum charges that PiS appointments to the Constitutional Tribunal were “illegal.” In fact, it was the previous government of Poland that committed the first overreach. Anticipating its coming electoral defeat, the Civic Platform party tried packing the Constitutional Tribunal with five new judges ahead of the elections. Several of its appointments were deemed illegal, and others certainly went against precedent.

Was Civic Platform a model of restraint when it came to the separation of powers? No. In fact, it was partly brought down in the Polish public’s esteem when its interior minister, Bartłomiej Sienkiewicz, was caught discussing with its central bank minister, Marek Belka, how Poland’s monetary policy could be manipulated to boost Civic Platform in the polls ahead of elections.

What about the media? Applebaum complains that the PiS government threatened to fine a television station for unflattering coverage. But when Wprost was revealing all the scandals, cronyism, and corruption of the previous government, the Civic Platform government had internal security raid the magazine’s offices and try to grab its computers, charged its employees with crimes, and accused them of working with a hostile foreign power to destabilize the government.

Where was the EU when the previous Polish government was packing the court, violating the separation of powers, rewarding cronies, and attacking the Polish press? Nowhere to be found, of course, because that Polish government was obsequious when it came to Brussels and Germany’s leadership of Europe in particular. Tusk was even welcomed as president of the European Commission after Poles kicked his government out of office. All the grotesqueries of the previous government received muted, even mournful, coverage internationally. There were no threats of discipline, nor was there any outrage.

But back to Applebaum. She comes to the heart of her case when she charges that the ruling parties in Hungary and Poland are “anti-pluralist,” which is an interesting euphemism. Much of the disgust at PiS is the predictable response to its genuine social conservatism and the perceived religiosity of its supporters. Voluntary demonstrations of religious faith in Poland are given condescending Gorillas in the Mist–style coverage in the international press. A little over a year ago the Washington Post checked in on Poland under PiS. Unsurprisingly, its reporter concluded that the country was returning to “the dark ages.”

Fears of religious extremism are more well-founded in Western Europe, of course. Look to the Saudi-funded mosques in Germany, where Syrian refugees report hearing the most radical form of political Islam they’ve ever encountered. Look to the attacks on Brussels and on the Bataclan and the offices of Charlie Hebdo. The anti-pluralism that is a danger to Europe exists not in Warsaw, but in Paris and Berlin.

The reforms instituted by PiS are aggressive, no doubt, but they are not the first step on the road from democracy to tyranny. Coming from Poland, a country where the EU remains popular, they are instead a sign that Europe’s democratic peoples won’t follow some script pre-written by the U.S. State Department or the European Parliament.