PiSsed Off: Polish Democracy Under Strain as Constitutional Crisis Hurtles Toward Systemic Meltdown

By William Stroupe

Until recently, Poland had long been the unanticipated great post-Soviet success story. Though Hungary was the popular candidate for post-Soviet stardom, it was Poland that quickly transitioned into a market democracy. It has since been the golden child of the European project. The country is often cited as the best evidence that a totalitarian, centrally-planned, middle-income state can transform into a wealthy, liberal democracy. That reputation is now in question.

In 2015, the right-of-center Law and Justice (PiS) party won the Presidency and an absolute majority in both Sejm and Senate (the lower and upper houses of parliament respectively). The wave of popular support for right-leaning parties’ anti-immigrant, nativist stances came in the wake of a worsening refugee crisis which exacerbated frustration with EU gridlock. The first absolute majority in both houses of Parliament since Polish independence more than two decades ago was seen as a test of Poland’s young but vibrant democracy.

It is failing. Shortly after being elected, the PiS government legislated strict controls on the media and “reforms” to the Supreme Court of Poland. The Constitutional Court struck down those reforms on March 9. The most contentious measure raised the necessary number of judges needed to support a ruling from 9—a simple majority—to 13 of the 15-member court in certain cases which could result in the overturning of parliamentary legislation. In overturning the new law, the Supreme Court noted that Article 190 the Polish Constitution expressly requires only a simple majority.

Nevertheless, the PiS government has declared its intention both to ignore the ruling and to refuse to publish it. The ruling is not binding without publication, although the First President (chief judge) of the Court  declared the judgment binding upon publication to the courtroom. The government claims that the Supreme Court’s decision—which reflects a position also held by the Polish Bar Association (NRA)—was itself unconstitutional. This is because the Court did not follow the newly instituted rules. Yes, the ones under review for constitutionality: the ruling was a 12-3 decision.

As the crisis deepens, the European Union is increasingly likely to get involved. Article 7 of the Treaty on European Union allows for sanctions on countries that violate rule of law norms. Poland could be stripped of its voting representation in the Council, depriving it of a role in making the EU law to which it must conform. The Venice Commission, a body of legal experts under the Council of Europe and human rights watchdog, recently released a highly critical report on the Polish government’s actions. It will be relied upon heavily as the Council investigates the matter.

Poland is unlikely to be sanctioned. Article 7 sanctions require unanimity, and Hungary’s far-right President, Viktor Orban, has declared that his country will not support the measure. Orban has previously declared his intention for Hungary to become an “illiberal” state, and has been the subject of much criticism for his extreme nationalist party’s aggressive moves to undermine democracy and the free press. This closes off the only clear avenue for EU rule of law enforcement: due to Article 7’s vagueness, there is no clearly defined violation of EU law upon which to pursue financial sanctions against the Polish government in the ECJ.

The Polish people are justifiably proud of the success of their governmental system despite a widespread belief upon independence that Hungary had the best shot at developing into a stable, wealthy market democracy. Hungary had a longer history of agitation for independence, a subterranean political system less thoroughly dominated by the USSR, and a higher level of economic development. It did see halting improvements but became mired in hard-right nationalism and illiberal economic and political interventionism, and now has a lower per capita GDP than its previously much poorer neighbor. Meanwhile, through the 1989 Balcerowicz Plan and subsequent reforms, Poland successfully privatized most state-owned firms, rapidly liberalized its regulatory regime, and opened itself to foreign direct investment. It also developed a set of stable, democratic institutions that incorporated strong checks and balances and ensconced them in the 1997 Constitution. In 1999, Poland joined NATO—of which it has been an enthusiastically contributing member since—and the European Union in 2004. The country’s GDP has nearly quadrupled since 1990, its per capita GDP has more than doubled, and unemployment remains low by European standards. Indeed, it is one of the few European economies to have grown substantially since the financial crisis.

As the Soviet Union dissolved, it was once hoped that Hungary would show the way toward liberal democracy for other post-Soviet states like Poland. It was later hoped that Polish success would show the way for countries like Hungary. Now it seems both are intent on assisting the other to dismantle decades of progress on democracy, human rights, and growth. Polish independence leader, former President, and Nobel Laureate Lech Walesa recently declared that the government’s actions risk civil war. On March 12, over 50,000 marched in Warsaw to protest the government and to demand that it respect the ruling of the Supreme Court. There is still time for the government to change course and respect the constitution, the people, and hard-won democratic norms. In the meantime, the EU would do well to consider treaty change to expand its toolbox to prevent states from failing to live up to the EU’s most central principle: rule of law.