The motto of Fire of Europe is ‘ahead of the curve’. This means that it will provide you with key insights before they become news in the mainstream. If you have read last October’s article on the Polish judiciary you have been ahead of the curve on last week’s events. The European commission and the Polish government have reached a compromise that will hopefully safeguard the rule of law without suffocating the political system by shutting out all fresh democratic air. In the meantime, Polish prestige has increased tremendously, proving that premier Morawiecki and his conservative government were right to chart a independent course.
The problems started in 2015 when the newly elected Law and Justice Party (PiS) embarked on a reform of the judiciary. Before the PiS representatives could take up their seats in the parliament their rivals in Civic Platform (PO) decided to stack the constitutional court with loyalists. A last-ditch attempt to make PiS reforms impossible, hopefully making voters wary of the lack of progress, and returning to power in the next election.
But it was not to be, aware of the danger the new government used its power in the executive and legislation to enact controversial reforms: in the eyes of critics a direct assault on the independence of the judiciary. The reforms were the following:
- Lower the age of retirement for Supreme Court justices from 70 to 65, but allow the Polish president to grant a five-year extension to whomever they deemed worthy.
- In the general court system lowering the age of retirement for women to 60 and for men to 65, down from the current 67.
- Allow judges to be investigated and sanctioned for their court rulings by other judges selected by parliament.
- Allow judges to be appointed by parliament instead of by fellow judges as before.
The first two reforms appear to be a ham-fisted way to cull the court of incumbents faster than before. A proposal that does not address the core problem and also has a negative impact on government finances. The third proposal is the one that has drawn the most ire across Europe, and with good reason. It is a core tenet of the rule of law that judges have the right and duty to make their decisions independent of outside interference. Of course, in real life it does not always turn out that way, with many judges having a party affiliation or at the very least a personal opinion. To deal with this it is reasonable to enact reform number four to ensure that there is some influx of new people with new ideas in the judiciary branch.
In response to the reforms the European Court of Justice slapped Poland with a one million euro fine per day: the stuff of nightmares for the average consumer. It seems however that the Poles are unfazed by this parking meter from hell, as it continues to run to this very day. Of another order entirely however, is the blockade the European commission put on Poland’s cut of the pandemic recovery plan. Instead of the small change that the judges in Luxembourg get to play with, this package consists of €35.4 billion. Apparently six zeros are not enough to prod EU member states, but nine zeros do command a government’s attention.
Meanwhile the last six months have seen a dramatic reversal in Polish prestige. Last November Belarus president Lukashenko invited migrants from the middle east and directed them to the Polish border. Rather than letting them in and providing the migrants with food, water and shelter, the Poles decided to defend their border and refused to be blackmailed by the Lukashenko regime. Rather than thanking the Poles, who were de-facto also defending the German and French borders, the Western Europeans constantly berated Poland for human rights offences. In the realm of defense, the Poles were also taking decisions that seemed strange to a Western audience. In October the Polish government announced it would double the size of its army in response to a perceived military threat from Russia. The military plan also notably included an overhaul of its military equipment. Poland aims to replace its Russian tanks and airplanes left over from the communist era by NATO equipment, including the F35 Joint Strike Fighter.
Fast forward six months, and the other Europeans realized that Poland had been right. It’s talk of only taking in refugees coming from its own region turned out to be far more than just talk. Poland has already welcomed 3,5 million Ukrainians fleeing the war. While facilities in Western Europe are already overstretched by inflows of migrants from the middle East, Africa and elsewhere, Poland still has the capability to house refugees from their own region. It turns out that being strict allows Poland to be generous as well when it is needed. That same war drove home to the other Europeans that to be free and safe means having your defensive capabilities in order. In a period of six months Poland has transformed from a black sheep into a guiding light for the rest of Europe.
And thus, on the first of June a compromise was reached. Poland will get access to its pandemic recovery funds, but only if it meets certain milestones. Poland needs to get rid of the infamous disciplinary chamber and needs to review the cases of those judges already dismissed. A welcome compromise that should achieve the goals of the Polish reforms while smoothing some of the rough edges. And this is how the trias politica should work: a constant struggle between the different branches to find out where the middle ground is. Not a technocratic nightmare (or dream, depending on your position) in which each branch has to have the same opinion and is working tirelessly to prevent any political change. In an almost medieval fashion, the Polish opposition tried to get rid of its rival by an appeal to the European emperor. Although they did not succeed completely, they did get satisfaction on those points in which they were in the right. A certified happy end, it would seem.
But in politics there is neither end nor beginning. Although European Commission President Von der Leyen flew to Warsaw on the second of June to present the compromise, flanked by the Polish president and premier, trouble was brewing in Brussels. Five European commissioners dissented with the compromise, complaining that Poland was treated too leniently. In the European parliament and in the press the friends of PO were quick to denounce the latest developments as well. It also appears the governments of the Netherlands as well as those of the Scandinavians are unhappy with the proposal. The last word on this matter has not yet been spoken.
The main positive takeaway from this episode is that although the EU structure lacks formal democratic channels, the commission and other institutes are not impermeable to criticism. The big words used by Von der Leyen and her ilk are just that: words. When a member state makes the right decisions and sticks by them it is able to win in the end. It does not matter how vehemently the leadership states that Poland is ‘wrong’, because it will change its opinion if Poland turns out to be right. In the words of science fiction writer Philip Dick: ‘Reality is that which, when you stop believing in it, doesn’t go away.’ A hopeful message to anyone critical of the status quo.