Prologue. Living in dual and captured state
Oh no, Poland again, you might think … and yet despite massive press coverage, important lessons and themes seem to get lost in the daily narration.
In August 2021 it almost feels like Poland has become a dual state with two different worlds, with parallel sets of institutions, legal acts and their competing interpretations of the legality, and more broadly, with two diametrically opposing loyalties (for a more condensed version of the arguments presented here see my interview for “Die Zeit”). There are lawyers who continue to believe in a liberal state ruled by law and in the value of the constrained political power and, most importantly, in the Constitution as the supreme law of the land. But there are also those for whom the Constitution is a fig leaf, for whom it is legitimate that the political majority redraws and oversteps at will the red lines set down by the rule of law, instrumentalizes the law, oppresses the majorities, stigmatizes those who are different etc. etc. I have been arguing for years about the specter of the capture that has been engulfing Poland. By now, there are no independent institutions, the Constitutional Court has discredited itself by becoming the most loyal supporter of the political majority, the public prosecutor is at the beck and call of the Ministry of Justice, free and independent media face the ultimate debacle and descent into the voracious laps of the political masters of the day. Of course, one can argue that there are still individual judges brave enough to stand up to the government. However, these few vocal judges are part of a judiciary that has been captured … Their dramatic voice as important as it is in symbolic terms, corroborates the sad truth that the entire system of checks and balances has been wiped out. The law no longer plays a civilizing and constraining role to harness the flimsy majoritarian politics. Rather it is the law, most tragically, bowing down to the political power and adapting (or rather being forcefully bent to adapt) to the politics of the day. The law is used to oppress, not to protect. As we speak, the process of capture in the heart of Europe is now almost complete and with this the promise and dream of the European integration put on the line …
Explaining all this requires taking on the biggest failure of the Polish transformation post 1989. This is where us lawyers have also failed and must perform some difficult soul-searching. After the collapse of the Eastern bloc, there was this grand narrative of building the rule of law top-down, creating new institutions, erecting new procedures etc. But we never asked a more fundamental question: How to translate the rule of law into daily life and make it a civic mainstay? What does it mean for an average citizen to have a right to a court? What does it mean for the Constitution to enjoy a social life and grow in the hearts of a citizen? In other words, the rule of law as a living experience never had a chance to take root. This discrepancy between the narrative of the ground rule of law reform and the daily lives of Poles kept growing bigger and bigger, up to the point where Kaczynski came to power. And he fed into this growing resentment by adroitly speaking on behalf of those left behind and employing the disgraceful “enemy narrative” (“The EU is plotting against you” and that deceitful migrants are everywhere). The liberal state of the rule of law with the elegant narrative of human rights and legal constraints had no chance against no-holds-barred relentless majoritarian politics. The institutions stood weak and defenseless and died in silence …
How then to make sense of the steady stream of news, announcements, judgments, quasi-judicial decisions, threats of non-compliance, bluff-calling, denials etc. etc.?
Takeaway One: Calling things as they are
First, it is important to call things as they are and avoid the trap of creating the appearances of legality. The institution once known as “the Polish Constitutional Court” has been disarmed and emasculated. It is not rocket science to point out that its present incarnation does not even comply with the requirement of “the tribunal established by law” (art. 6 of the European Convention of Human Rights) which was recently acknowledged by the European Court of Human Rights in Strasbourg. It serves the political majority and simply rubber-stamps the political agenda. I can only hope (although I am not optimistic) that the Commission has been planning and knows what lies next beyond the deadline. If not, and if it will just keep sending letters of concern to Warsaw, extending an olive branch once more, instead of bringing infringement action with requests for biting interim measures, then we would be reliving the mistakes of the past all over again. I do not think much of the current political situation, either. The dirty politics in Warsaw change nothing really. The captured state remains in place. Despite the reshuffling of personnel here and there, what matters long term is that the forces that have changed the constitutional profile of Poland beyond recognition since 2015 are still very much alive and well. The real work to be done is and will be on the ground. This is the most difficult of challenges, though, and only then will the politics in Warsaw be affected and change.
Takeaway Two: Understanding the stakes of the unconstitutional abuse
The Commission took infringement action over the verdict of the German Constitutional Court. And in the process, they let the so-called Polish constitutional court wreak havoc with the European integration for the past weeks without doing anything. If there is a body that does not share the common understandings of law with the ECJ and indeed the broader legal community in Europe, it is that operating in Warsaw, not in Karlsruhe. Whatever you might think of the German Constitutional Court, it plays the game in good faith, even if occasionally it might give bad decisions or miscalculate its legal influence in Europe. However, it has never strayed away from the principle of Euro-friendliness in general terms. Rather, it simply wants to have some voice in how things are done in Luxembourg, which is not a bad thing at all. This is how European politics have been played for over 60 years now: respectful deferral and never-ending search for a reasonable compromise between the diversity and uniformity, all this while knowing that in this world there are no perfect black-or-white solutions. The constitutional courts in Europe might send all the warning signs and set down red lines, but at the end of the line what counts is not simply what they say but rather how they say it and what they do. And these courts have been overwhelming supporters of European integration and never stopped talking to the ECJ. The dialogue and the pressure from national courts might have even pushed the ECJ towards new directions to embrace different ideas and be more receptive.
Whatever we call the institution in Warsaw, its perspective and language are diametrically different from its constitutional counterparts in Europe: for Warsaw, integration is a threat, the ECJ plays dirty, our values are distinct from European values and the Constitution is used as an antagonizing trump card. There is simply no place for dialogue or concessions. The escalation and confrontation are names of the game and this belligerent (to put it mildly) and disloyal behavior strikes at the very heart of European integration and the not-at-all-easy reconciliation among shared ideals and values. Everyone must give in at some point for the whole to operate. Therefore, the chantage and hostage-taking à la Polonaise must have no place in the EU and must be called out as a direct threat to the operation of the EU legal order. The diplomacy of indignation by the European Commission should have stopped many years ago and the Commission might as well come around to realize it now. If not now, then when? The extent to which the EU fundamentals have been undermined by the developments of last few weeks, leaves one premise of European Law (binding nature of the decisions of the Court of Justice) teetering on the brink.
Takeaway Three: Seeing through the machinations
The so-called constitutional tribunal is set to rule on the primacy of European law. Yet, its “decision” is being postponed. Why? Understanding the calculations and thought processes of the people behind the unconstitutional maneuvers organ is a mission impossible. There is no rhyme nor reason in all their actions. Who knows, maybe they might actually be starting to realize how far things really went or what the actual consequences might be? The abortion ruling should have been a painful lesson … However, that would require introspection and reflection and these judicial virtues have been hard to come by in Warsaw these past 5 years. Or they might have no clue what to decide and are trying to find a way out that would save them face while at the same time, of course, sending (yet another) strong message to the right-wing electorate that, “yes, we are defending Polish sovereignty against the faceless and undemocratic Union”.
A body dressed in autocratic legalism poses an existential threat to the EU and to the Polish rule of law. It has never spoken on behalf of the Constitution. It was the Polish people that has accepted by an overwhelming majority Poland’s accession to the EU in 2004. And yet 15 men and women (three of whom should never sit as they were elected unconstitutionally) under the constitutionally doubtful President of the court, sit on the case(s) that might undo the very decision of millions of Poles, almost as if it has never happened. This is the gist of a constitutional tragedy (and a historical paradox of sorts) happening in plain sight …
Takeaway Four: Talking about paintings, while the house has been burnt …
The talk of the town now is that the oppressive and illegal Disciplinary Chamber of the Supreme Court will be abolished to make room for a newly created chamber, this time in full compliance with constitutional and European standards. After 6 years of incessant constitutional debacle and the resultant change in the constitutional profile of the state, these announcements and hopes pinned on them, must be approached with the utmost caution and skepticism. The discourse about the new Supreme Court chamber(s?) smacks of futile redecoration efforts by changing the place of paintings on the walls in an apartment that has been already burnt to the ground. Such a redecoration, and performed by the hands of the arsonist himself, will not make the apartment look nicer because the walls have crumbled a long, long time ago. The honest effort of rebuilding calls for three cumulative, non-negotiable conditions binding on all those actors who are willing to start the rebuild: i). professing an unconditional fidelity to the Constitution of 1997 as the supreme law of the land and concomitant acknowledgment of the constitutional standards; ii). good faith and iii). respect for EU law. None of these are present and thus the rebuild must stop before it even starts.
Takeaway Five: Message for Europe (Part I)
The first lesson from the Hungarian tragedy must have been that you have to act preemptively and decisively. Time is a most precious asset. The more time you give, the less likely it is that the adverse effects will be ever rolled back. In other words, you have to strike first. And I would like to make it absolutely clear for the benefit of the Western audience here: “My dear European elites, you have lost six precious years of extending time limits, engaging in a so-called ‘fruitful dialogue’ while Kaczynski was scheming on the ground and completing the capture step by step. You were playing with the arsonist while he was setting the house on fire. The house has almost been burnt now”. It didn’t have to be that way. The Commission has been busy looking for legalistic excuses not to act for years now, masquerading as the guardian of the Treaties and making a mockery of this once-noble characterization. And yet, being a guardian is not something that is given but must be rather earned, justified, and protected. And the Commission has done everything possible to lose this ennobling mantle. The real tragedy however would be today to see the Commission keep falling again for the legal trickery fabricated by the Polish government. I have even argued elsewhere that we are dealing with the E(U)Exit by which I understand the process of whittling away the element of the community of law, always at the heart of integration, by those who (the Commission/the Council/the European Parliament) should be first in line to stand for it. Harsh words but the time for niceties has long passed.
Takeaway Six: What’s next?
Poland is facing the existential questions of what it is and where its place is.
The most important aspect of European integration has been to always make sure that every political power is limited by independent institutions and that a democratic process will be anchored in the respect for the rule of law, human rights and the rights of the majorities. This was so because we believe that there is a hard core commonality that defines us as Europeans and only through collaboration and mutual learning, a peaceful and more just Europe for all might be secured. And we Poles must accept that there are certain costs on our part as well.
POLEXIT is already happening right before our eyes, step by step … Which is why the EU must step in. It would be as much for the sake of the European community, as it would be for Poland’s continuing participation in this community. Having said that, we must face the hard truth, that in the end, the EU will not save Poland from itself … Yes, we do need Europe on our side, but the real change must come from within, by rebuilding the system from the ground up. There is no going back to what was before 2015 when PiS came to power. And to be honest, I don’t know how we will do it, because the system has been changed so deeply and comprehensively that just dissolving the Disciplinary Chamber of the Supreme Court will not do the trick. Rather it might be again used by the government as a bargaining strategy to send the EU (yet again) on fool’s errand. The challenge is and will be to think in terms of civic participation and building social legitimacy of institutions that must be rebuilt from scratch. After all, it is the social legitimacy enjoyed by the institutions and built strenuously over the years that will serve as the most effective insurance against any attempt by authoritarian-minded politicians to capture these institutions. But building habits of heart takes much more and takes longer than creating yet another set of institutions. As a result, a massive constitutional and civic challenge is right in front of us … No shortcuts, no easy ways out this time.
Takeaway Seven: Message for Europe: building and defending a European Narrative (Part II)
We often hear that escalating now would further drive the Poles away from Brussels. This is a dangerous myth which maintains the comfort of the European institutions. It is a convenient excuse to … do nothing. There is a great majority of Poles who expect more of the EU. The promise of European integration – and this was something that many, especially in my parents’ generation, dreamt of – was to have a supranational community that would protect you against your own state, one that would make your domestic rule of law more robust and subject to external constraints and standards. Therefore, we have joined the EU which has always been looked at as the beacon of normalcy and an insurance against “things going bad at home”. Many still remember how easily a nation state succumbs to the allure of oppression and glorified uniqueness, all with tragic consequences … With our membership in the European Union, we thought that we would have an extra layer of protection against this kind of abuses of state power. For Central and East European citizenry, “Europe that protects” has been more than a slick metaphor. So, stepping back or calculating by the EU (“intervene or not?”) is short-sighted. In the long run it will only make the frustration among Poles grow bigger and raise some uneasy questions (“do judgments of the ECJ have any authority?”) and as a result harm the EU’s legitimacy and its popular image. When so asked by an average citizen I would find it difficult to come up with a credible explanation.
My hope is that those past five years have worked like a catalyst and a wake-up call. We are learning the hard way how to live in a liberal democracy just now. Whereas for the last twenty-five years, Polish citizens have been busy learning about how markets work, now slowly, slowly, people start to take notice of what is happening in Warsaw. I think the boiling point came with the abortion ruling a few months ago, when people realized that “oh, my God, we are living in a state where a group of irresponsible and illegitimate ‘judges’ can decide what my life will look like or what the good life should be”. Just like that! With one stroke of a pen … Civic passivism and disengagement have their price, and we are paying for it right now. I can only hope that we can rebound and look back on these last six years as an invaluable experience in civic education and mobilization … Hope, however, is all that is left as we speak …
Epilogue or … a new Prologue?
The European institutions must be able to protect the European narrative in Poland because this is what we, most Poles expect of the EU. And with each passing day, the frustration and the discouragement set in because people see and read about the ECJ decisions and see nothing tangible happen. And then they ask the most dramatic of questions: What does Europe mean for us? This is a critical and dramatic juncture because Europe must not afford losing the support of Polish citizenry. Therefore, Brussels must stop considering the Polish case as a mere problem of bad governance of yet another recalcitrant member state. It would serve European leaders well to finally recognize the constitutional stakes involved and enforce all these in the name of Europe and its citizens.
And yet despite all the critique, doubts and pessimism expressed here, I want to make one thing crystal clear: Liberal Poland, or rather whatever is left of it, needs Europe like fresh air. I still believe that the EU continues to wield important constraining power in line with its founding motto: the political process at the domestic level must be supervised by the independent supranational mechanisms and institutions. That has always been a true founding First Principle of European integration. After all, the EU was supposed to operate as the bulwark against arbitrariness and authoritarianism.
Will Europe listen and pay attention this time? I simply do not know. This uncertainty and feeling of creeping hopelessness are the ultimate proof of the tragedy that is staring right into our – Polish and European – eyes …