VISEGRAD: Powerless in Poland

VISEGRAD: Powerless in Poland
Law and Justice leader Jaroslaw Kaczynski and Prime Minister Beata Szydło paint Brussels as an authoritarian liberal elite.
By Wojciech Kosc in Warsaw March 14, 2016

Street protests erupted again in Poland over the weekend of March 12-13 after the ruling Law and Justice (PiS) party dug in its heels and refused to acknowledge mounting domestic and international criticism of its attempts to neuter the country’s constitutional court. Despite the clamour, however, there's little sign of the kind of pressure that might push it to change its tune.

An estimated 50,000 took to the streets in Warsaw on March 12, with similar events held in major cities across the country. A march was held in Gdansk the following day. All events were organised by the Committee for Protection of Democracy, a Facebook group-turned-opposition movement which is supported by Poland's main opposition parties.

The protests come as Poland slides deeper into a constitutional crisis that has been brewing since December. The direct fight is over the constitutional court, but illustrates wider forces rending Poland, as beneficiaries of the country's escape from communism and EU accession face off with those left behind.

Both groups display mixed demographics, although the protest marches overwhelmingly draw the educated, urban population, mostly over 40: the main group to have benefited from transition. The younger generation, struggling on a labour market rife now with zero-hour contracts and low wages, has been more likely to join PiS' core electorate, which is more rural and faithful to Catholic conservative values.

The effective paralysation of the Constitutional Tribunal (TK), a vital element in the country’s checks and balances system, came under heavy criticism from the Venice Commission, an advisory body to the Council of Europe, on March 11. The report's dim view of PiS' efforts to rapidly consolidate its power over the country's institutions had already been leaked, but the publication has only added to the furore over the court.

The Venice Commission - the Council of Europe’s advisory body - called on the Polish government to respect the constitution and adhere to TK’s ruling from March 9, which said that PiS’ recent changes to the bill governing TK’s rules of procedure were unconstitutional. In order for the TK ruling to become binding, it must be published in the government’s official gazette; PiS has refused.

The Venice Commission’s opinion offers support for the European Commission in its ongoing probe into the state of the rule of law in Poland. The probe could - in theory - end with stripping the country of its voting rights in the bloc. However, the "nuclear option" is by its very nature not going to be used. That's especially true right now, given the forces pulling the EU apart.

PiS began tampering with the TK late in 2015, having first sworn in five loyal TK judges, while refusing to swear in judges elected by the previous parliament, when PiS was in opposition. The governing party insists it was merely rebalancing a court made biased against it by its predecessor.

In December, the party voted a number of amendments to the TK bill that demands it meet certain criteria for sittings and rulings. Critics say the rules would effectively prevent the tribunal from fulfilling its task of making sure Poland’s laws are in line with the constitution.

“The effects of the [December] amendments ... endanger not only the rule of law, but also the functioning of the democratic system,” the Venice Commission wrote in its report. "Human rights would be endangered since the right to a fair trial before an independent court – the Constitutional Tribunal – is compromised as well as the tribunal’s ability to ensure that national legislation respects human rights."

Populist flair

PiS, however, remains unmoved, as it has in the face of all criticism of its policies since coming to power in November. With typical populist flair, the government accuses domestic opponents of a lack of patriotism, while painting Brussels as an authoritarian liberal elite.

The recent tribunal ruling is just another opinion on the issue, government officials insist. In an impressive piece of Kafkaesque logic, PiS says the ruling is unconstitutional because the TK arrived at its decsion at a sitting that did not respect the disputed amendments.

The fight has opened a deep rift between the TK and opposition on the one hand and the government on the other. The TK said it could not proceed in line with a law that was unconstitutional. It insists it will keep working with disregard for the PiS amendments.

PiS has responded by stating it will not consider TK’s rulings constitutionally binding. There is now a danger that dual competing legal systems could emerge in Poland, some analysts warn. That blueprint would mean TK rulings could be considered binding by courts but ignored by the civil service, which is dependent on the government.

The resolve of PiS appears to stem from the fact that there's little palpable pressure on Warsaw to make the government compromise. Polls consistently show the ruling party is more popular with voters than two biggest opposition parties - Civic Platform (PO) and Nowoczesna (Modern) - combined. Once the party's flagship programme of child benefit kicks in next month, that support is only likely to grow stronger.

The programme could help the economy, Erste notes. “[The programme] could exert a multitude of positive inflows, for example increased consumer spending to the benefit of retail companies, investment in mutual funds units to the benefit of market flows, better credit standing, which could benefit banks, debt collectors and real estate developers. In our view, the programme is a powerful tool and could contribute to a better EPS [earnings per share] outlook of WSE listed companies,“ the analysts wrote recently.

The markets appear to becoming used to batting away the political noise also. Investors turned their backs on Poland early this year over worries connected to fiscal management, but the fear looks to be receding. Following Standard & Poor’s downgrade of Polish rating in mid-July, which mauled the zloty and bond yields, those indicators have been returning to their former levels.

The pressure from the EU clearly annoys Warsaw, but despite the hints coming from the commission that its probe could end with invoking Article 7 of the Lisbon Treaty, the "nuclear option" could open a split between old and new member states, with Poland's allies such as Hungary exercising their veto. A cut or suspension of EU funds might be more realistic, but funds under the 2014-2020 window have been approved and are already being spent.

More immediate, and perhaps more sobering for the eurosceptic but strongly Atlanticist PiS would be pressure from the US. Officials from Washington have reportedly been busy talking to Polish peers on how the constitutional standoff could contribute to a worsening of relations.

Direct pressure could come via Poland's scheduled hosting of a Nato summit in July, during which it plans to try to secure the permanent presence of troops and equipment from the military alliance in the country in order to counter what it claims are Russian imperialistic ambitions in the region. US officials say in connection with that hope that Washington is watching developments “closely", The Wall Street Journal reported in early March.

“Any democracy needs strong systems of checks and balances, needs judicial independence. These are critical, crucial elements of a constitutional democracy and establishing rule of law,” State Department spokesman Mark Toner said recently.