Sunday

1st Aug 2021

Opinion

Polish rule of law crisis at point of no return

  • Polish president Andrzej Duda (r),amid mass domestic and international protests, this month signed into law a deeply-controversial set of new reforms seeking to prevent Polish judges from applying EU law under penalty of suspension, fines, salary cuts and (Photo: Ministry of Foreign Affairs of the Republic of Poland)

Following four-plus years of assault by the ruling Law and Justice (PiS) party, the embattled Polish judiciary may be on its last legs.

On 4 February, amid mass domestic and international protest, Polish president Andrzej Duda signed into law a deeply-controversial set of new reforms openly defying the authority of the EU's top court and seeking to prevent Polish judges from applying EU law under penalty of suspension, fines, salary cuts and dismissal.

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The power consolidation strategy pursued by the Law and Justice government since it came to power in 2015 has taken repeated aim at judicial restraints on the government's ability to act, and represents at its core an effort to dismantle the very checks and balances that characterise democratic forms of government.

Modelled in many respects on the same blueprint for democratic decline followed in Hungary by strongman Viktor Orbán and his ruling Fidesz party - which, within less than a decade, has managed to overturn the fundamental tenets of European constitutional order and supersede them with the political oxymoron dubbed 'illiberal democracy' - the government in Poland has sought to fuse the ruling party and the state.

As multiple sources point to what has been described as an unprecedented blow in an EU member state to the delicate balance of powers that holds together consolidated democracies founded on respect for the rule of law and human rights, the progressive and forcible subordination of the Polish judiciary to the whims of the ruling majority can only be compared to a Soviet-style, single-party system of executive control over the courts to date unknown to post-war Europe.

In the wake of these most recent reforms, Poland's Supreme Court, government and Constitutional Tribunal are now pitched in an open power struggle over the future of the Polish courts.

Barring urgent intervention, the Polish government will likely break the standoff by simply waiting for the expiration of the current Supreme Court president's term on 30 April and appointing a party loyalist to replace her, beyond which point serious prospects for reasserting judicial independence will by most accounts no longer be viable.

Not only does that independence now hang in the balance, but so does Poland's very integration in the EU legal order.

With the de-democratisation of Poland unfolding in full view - a country which in recent memory was seen as the paragon of successful European integration among the former communist bloc countries - the integrity of the Union's normative foundations may be facing its greatest challenge to date.

Not only is the rule of law, itself an essential precondition for robust and consolidated democracy, under direct threat, other EU principles, not least respect for human rights, are also trampled upon as individuals and civil society organisations are deprived of the possibility to seek justice before independent courts when their rights are violated.

No more 'softly, softly'

It is simply a misreading of the current state of play to believe, as some have recently suggested, that a softer or more conciliatory approach would be an effective strategy for the EU and fellow member states at this stage.

The stakes are too high and the timing is now urgent.

The EU and its member states must take decisive action. This must include both improving the use of existing mechanisms, such as the procedure laid down in Article 7 of the EU treaty, and developing new tools that would guarantee a more systematic, regular and accountable review of all member states' compliance with EU standards, accompanied by more effective means of enforcement.

To date, efforts by the Council to bring Poland - and Hungary - back into the fold, notably through the Article 7 TEU procedure, have faltered due to lack of sufficient political will, even as the crisis continues to deepen.

Faced with the hesitance of their peers in response to an ever greater defiance of EU values by their governments, both Poland and Hungary have instead continued dismantling the democratic foundations common to the member states, almost now to the point of no return.

The council must open its eyes to the magnitude of the crisis, and make full and immediate use of its powers to induce an urgent course correction before it is too late.

The time for waiting is over.

The European Institutions and the member states alike are the keepers of the common values of the Union, especially democracy, rule of law and human rights, and must now act decisively to preserve these principles before creeping authoritarianism metastasises and threatens to compromise the very future of the European project.

Author bio

Elena Crespi is head of the Western Europe desk for the International Federation for Human Rights (FIDH), where Joshua Ratliff also works.

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

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