Only a week after Trump’s visit to Warsaw, PiS wants to change the law regarding the Supreme Court in order to help Kaczynski to undermine the European order
The notion of a Budapest-Warsaw express train used to explain mechanisms of democratic transition, in which the same positive socio-political and economic trends were copied from one country to another – read Peter Kreko’s article on this topic; now one could argue it is a conduit for experimental and dangerous illiberal policies
A new bill on the Supreme Court that has been proposed this week in the Polish Parliament is following this same road. If accepted, the law will stop the current term of the panel of judges including the President of the court, who happens to be very vocal in her criticism of the recent reforms to the judiciary system in Poland. This, in turn, would embolden the government to introduce even more systemic changes deficient of democratic legitimacy (lacking a constitutional majority in the Parliament) and based solely on the political will and autocratic ambition of Jarosław Kaczyński.
This seems to be a page from Hungary’s playbook. In order to remove the President of the Hungarian Supreme Court, Andras Baka, who was critical of government’s purge in the judiciary system, Fides extinguished his mandate along with several other changes included in the new Fundamental Law in 2011. The case, Baka vs Hungary, was brought to the European Court of Human Rights (ECtHR) in Strasbourg which ruled 3 years later that the changes were unlawful and violated the applicant’s rights to access the court. Also, the Court reiterated that Mr. Baka had a duty as President to express his opinion on legislative reforms affecting the judiciary. Hungary appealed the decision to the Grand Chamber of the ECtHR, but in June 2016 the verdict was upheld.
It took five long years to have a legally-binding ruling against Hungary’s unlawful action. During that time, new personnel had already settled in, and it was impossible to enforce a replacement without damaging the legal order of the country.
Kaczyński seems to be following in exactly the same footsteps as Orban in making sure he expels a powerful and authoritative critic before he moves any further. His next steps may include: purges in public administration, the diplomatic core, and the judiciary (which also took place in Hungary), changes to the electoral law limiting the role of the opposition and making sure elections are confirmed by the newly appointed President of the Constitutional Court and ultimately limiting the options of appealing decisions by parties that lost their cases in lower instances of the Polish court system.
The only difference is that he does not have a constitutional majority and is attempting to enforce an act that is clearly in violation of the Fundamental Law (article 183.3 gives a 6-year term to the President of the Supreme Court, no exceptions).
But in fact, if the political will triumphs over the Consitution he can double the trick of Orban by introducing several other policies irreversible unless stopped quickly.
As we already pointed out in an article for the Foreign Policy, univocal support from US President after his visit to Poland has only encouraged this government to make a move against the European political culture and the foundations of the parliamentary democracy. Today, Poland is ready to follow Hungary footsteps and go even further in rejecting European order in full. Such developments, experienced previously in the EU’s neighborhood, are potentially contagious as any revolutionary moment known in history. If not stopped, they may become a pattern for many other countries on the continent and jeopardize the EU.
Wojciech Przybylski is Editor-in-chief of Visegrad Insight