Situation report: Poland’s political crisis

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Just 15 months into its term, Poland’s ruling Prawo i Sprawiedliwość (PiS) party is facing the largest political crisis the country has seen in years.

The Sejm, the lower house of the Polish parliament, held its first session of 2017 on 11 January, but only after a seven-hour delay during which political leaders met to try and end a major crisis that has raged since December 2016. Hundreds of protesters gathered outside, as the talks went on and eventually broke down without a resolution.

The last straw came in December 2016, when the PiS-led government pushed through legislation limiting media access to parliament buildings, saying that journalists were disrupting parliamentary work. The political opposition – the centre-right Platforma Obywatelska (P.O.) and liberal Nowoczesna – and the media reacted angrily, saying the government was attempting to curtail press freedom. Protests outside the Sejm spread, with thousands of people gathering to demonstrate against the law. Inside, opposition lawmakers occupied the main chamber and blocked the podium, preventing a vote.

This tactic failed, however, when the PiS simply decamped to another room and not only passed the law on media access but also the state budget, by a simple show of hands. Opposition lawmakers were not in the room when the vote passed, and said it was illegal, since there was no proof of the required number of votes. Prime Minister Beata Szydło and the leader of PiS, Jarosław Kaczyński, were evacuated from the building under the nose of thousands of protesters early the next morning.

Inching towards illiberal democracy

It is not the first crisis that the right-wing, deeply Catholic PiS has experienced since its victory in the legislative elections in October 2015. Many opposition figures have compared Poland’s government to Prime Minister Viktor Orbán in Hungary, who has publicly stated he wants to create an ‘illiberal democracy’.

The first major sign that PiS was restricting democratic freedoms came as soon as Beata Szydło was sworn into office in November 2015. The government immediately began to appoint judges sympathetic to the party to the constitutional court, arguing that the previous government, led by the centre-right P.O., had made unconstitutional appointments to the court before the election.

In December 2015, the government amended the decision-making power of the court by mandating that it needed a two-thirds majority vote and the participation of at least 13 of 15 judges. The opposition and the constitutional court itself challenged the amendments, arguing that it was unconstitutional. At least 40,000 protesters rallied in the capital Warsaw to protest the changes.

Eventually, in July 2016, the European Commission—one of the two executive bodies of the E.U.—issued a recommendation saying that there was a ‘systemic threat to the rule of law in Poland’, giving the wayward member state three months to address the crisis surrounding the tribunal. Three months passed before the Polish government rejected the recommendations, saying they were ‘groundless’ and ‘based on incorrect assumptions’. The E.U. institutions were unimpressed, calling Szydło into the European Parliament to be questioned by MEPs, but to no avail. Szydło insisted that Polish democracy was not under threat.

Donald Tusk, the president of the Council of the E.U. and a former Polish prime minister from the P.O., called on the PiS to consider the country’s ‘constitutional morals’ after the crisis began in December. The Polish foreign minister Witold Waszczykowski responded by threatening to withdraw his government’s support for Tusk’s presidency of the Council of the E.U.

After the constitutional court, the new government turned its attention to increasing control over the state broadcaster, giving the treasury minister the right to hire and fire the heads of public radio and television. In January 2016, defence minister Antoni Macierewicz announced the creation of a territorial defence force to ‘restore…patriotic education’ and fight against hybrid warfare in the event of Russian military aggression. Katarzyna Lubnauer, deputy leader of Nowoczesna, accused Macierewicz – a close ally of Kaczyński – of creating his own private army, as the new force will report directly to the ministry of defence, bypassing the normal military chain of command.

Attempts to pass a near-total ban on abortion attracted the ire of women across the world and forced the government to compromise somewhat, although the rules on terminations will likely be further tightened. The PiS is also aiming to overhaul the early education system, which has been in place for 18 years.

Composition of the Sejm following elections in October 2015

The (un)popularity of PiS

The party has only a slim majority, with just four seats more than the 230 necessary to govern. Nonetheless, despite a deep distrust of Kaczyński, the party leader, and the faltering popularity of the rest of the party among voters, the fact that PiS won a majority in the October 2015 elections is unprecedented in the post-communist period. Outside of the major cities, it remains popular with the rural, older, and more Catholic segments of society.

PiS’s popularity lies in its staunch application of Catholic values, combined with left-wing welfare policies that, although untenable in the long term, have secured it political support in the short term. And while PiS appears unpopular now, the opposition parties in Poland are unable to capitalise on popular discontent.

The Kaczyński dimension

Though Szydło is nominally prime minister, it is hard to conceal the fact that Jarosław Kaczyński is the driving force behind the government. A veteran dissident during the communist period, he and his twin brother Lech were prime minister and president, respectively, a decade ago. Together, they launched a ‘moral revolution’ in an attempt to return Poland to its Catholic, conservative ‘roots’, with a notably Eurosceptic tone.

Ten years later Kaczyński is once again one of the most powerful figures in Poland – indeed, one poll found that 60 per cent of Poles believed he was behind all the decisions made by President Andrzej Duda, who is affiliated with the PiS. However, the wave of unrest is spreading to backbenchers within PiS, who are beginning to refuse to toe the party line on minor issues. A prominent lawmaker from the party resigned in protest at PiS’s recent actions, warning that the party had put state institutions ‘under the threat of the most severe crisis since 1989’, the fall of Polish Communism.

Lech Kaczyński, then the president, was killed in an aircraft crash along with many of the country’s foremost military, civilian and religious figures in 2010, when they were on their way to commemorate the 70th anniversary of the massacre of Poles by Soviet secret police. The crash prompted nationwide mourning and rumours that the crash was in fact an assassination by Russians. While subsequent investigations found no evidence to support this, in November 2016 Jarosław Kaczyński ordered the exhumation of the remains of his brother and other passengers to re-investigate the possibility that they had been deliberately killed.

This provoked anger, not just among the relatives of other deceased passengers, but also among the general population, who felt that Kaczyński was fuelling nationalist paranoia about Russia. Despite the opposition, Kaczyński went ahead. Investigators yet again found no evidence supporting the conspiracy theory. Importantly, it showed Kaczyński’s willingness to go against public opinion to push through his own agenda.

Outlook

Kaczyński has proposed new regulations to limit mayors and municipal leaders to two terms in office, but opposition parties claim the law is designed to strengthen PiS’s grip on all levels of government ahead of local elections in 2018. Antagonism between PiS and its opponents will only grow, and further blockades of the Sejm will likely occur, probably with escalating consequences.

In 2017, PiS has promised to continue its programme of judicial change. First, the government aims to introduce a mandatory retirement age of 65 for all judges. It also plans to massively reduce the power of one tier of the four-tier judicial system by dismantling most regional and appellate courts. Then, the government will attempt to increase its disciplinary powers by putting the minister of justice in charge of disciplining judges. This will further concentrate power in the hands of PiS by allowing the government to appoint and oversee judges, politicising the judiciary.

Crucially, the proposals would also complete Kaczyński’s ‘moral revolution’ by sweeping away the last judges from the communist era. After the fall of communism, Poland’s government decided not to prosecute judges for collaborating with the communist dictatorship as, at the time, it was not a crime: this is the concept of nullum crimen sine lege, no crime without law. The latest steps by PiS appear to backtrack on this principle.

In December 2016, the European Commission gave Poland a further two months to solve the crisis surrounding the constitutional court. Its recommendations included allowing the judges nominated by the previous O.P. government to take office and to implement the rulings passed down by the court. The Commission threatened to invoke Article 7 of the founding E.U. legislation, the Treaty on European Union, which allows for the suspension of E.U. voting rights, if its recommendations were not answered. However, such a move would require the unanimous assent of the other E.U. member states in the Council of the E.U. Poland’s staunch ally Hungary, which has also been threatened with Article 7 recently, has vowed to veto any such punishment.

This will prove to be an embarrassment for the European Commission. Having issued two ultimatums, the Commission will almost certainly have to ask the Council to vote on Article 7 at the end of February, in the knowledge that Hungary and possibly the U.K. will exercise their vetoes. In the end, the Commission is likely to publish another statement criticising the Polish government’s lack of respect for the national constitution, but risks opening a major rift between older, western member states on one side and central and eastern European countries on the other. The U.K.’s impending exit from the bloc will only exacerbate the divide; it has long acted as a mediator between the two camps.

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