With the president who is not willing to perform his duties as the guardian of the Constitution, it seems that it is thanks to the EU membership that there is still a kind of a safety net for Poland. Joining the EU back in 2004 now, in the light of the government that has set out to question the basic principles of European democracy, may prove a real lifesaver.
Let’s not forget that apart from the Constitution, the rule of law in Poland is safeguarded also by the Treaty on European Union. Moreover, Donald Tusk holding a prominent position in Brussels is yet another perk. Public media will probably not be saved, but it seems that there is a good chance of saving at least the independence of the Constitutional Tribunal.
To understand what is at stake in the case of the Tribunal is of vital importance in order to grasp the reasoning behind the intervention of the European Commission. If Law and Justice had not declared a war with the Tribunal, the entire row might not have been taken on the international level. Undermining the principle of separation of powers and not implementing the decisions of the constitutional court in an attempt to paralyze this independent body are the actions designed to overstep the boundaries of what is acceptable in Europe. And this and not the controversial interference in the public media is was prompted the European Commission to take interest in Poland and to launch – for the first time in history – a rule-of-law probe. Formally, probably not much will follow – as the Polish government has already secured a veto from Hungary to any plausible sanctions that the EU miht intend to introduce. Nevertheless, there are still three possible consequences of this step:
Detrimental effect on the image of the Polish government abroad and in Poland. International intervention ‘disables’ the argument that Law and Justice persists in using: that the Constitutional Tribunal is defended in Poland only by “communists and thieves”, terrified of being deprived of their priviledges. I know that the members of the Committee for the Defence of Democracy (Komitet Obrony Demokracji, KOD) were laughing at the idea of such allegations when protesting on the streets but now they may actually laugh even harder. European Union has acknowledged the fact that the thousands of people who took to the streets is not a manipulation of any sort but a proof that the things in Poland are not well and the recent developments may actually pose a threat to democracy.
The need to defend actions of the government that can not be defended in any way will finally arise. I personally can’t wait to see how Law and Justice intends to explain in Brussels the delay in taking an oath from the three judges of the Constitutional Tribunal. How will they explain the passed act that paralyzes the Tribunal? Those actions have no legal basis whatsoever and even in the Polish debate Law and Justice does not use any legal argumentation to support their actions. It claims that “this is what the nation wants” and hopes that “the dim people will buy it” – to quote the credo of the new head of TVP (Polish state-owned tv broadcaster), Jacek Kurski. But the dialogue with the EU will already require a balanced discussion based on sensible argumanetation. This will not only be inconvenient for the government but may actually discredit it if the government persists in repeating the utter nonsense in the debate on the international level.
Donald Tusk is back in the game. Those who were envisioning the end of the “Tusk age” in Polsish politics will soon be disappointed: his long-time battle with Jarosław Kaczyński, the leader of Law and Justice, is not over yet. I have no doubts that Tusk, who now presides the European Council, was the first one to put the matter before the politicians in Brussels when they wanted to gain an insight into why media show thousands of people protesting in Poland (not an ordinary affair, after all!). Undoubtedly, Tusk didn’t defend “the good change” so widely advertised by Law and Justice when he was discussing it with Mr Juncker, but rather leveraged the situation for pulitical purpose. After all, no one will believe that the unprecedented speed at which the European Commission has launched the procedure against Poland was emabrked on without the influence of Donal Tusk. He acts according to his personality, jugling the hot potatos using the hands of others while not being keen on commenting on the current situation in Poland on his own – when he does, his utterances are rather balanced and cautious. Someone who doesn’t kow him at all might think that in this situation he says what he really thinks.
What will come of all that? I think that the real effect of the pressure from Brussels might be carrying out the decision of the Constitutional Tribunal and taking an oath from the three judges appointed by the previous parliament. This would give the government a strong argument that could be used in the talks with the Commission and may be a condition under which the dispute with Poland might be calmed down. Taking the public media from under the dircect influence of the government will probably not happen as even if it is not a European standard, it is also not an ostentacious breaching of law as in the case of the Constitutional Tribunal. Thus the Commission will probably have a very small legal and political leeway for any action.
Finally, I expect that those who have welcomed the news of Brussels’ intervention with enthusiasm will probably face populist allegations as traitors of Poland. We will probably hear that it is simply unacceptable to air our dirty laundry abroad, that we are in collaboration with the Germans, that we foul our own nest. I have just one thing to say to that: as Stefan Kisielewski once wrote when he contributed in the (fortunately long gone) times to the Tygodnik Powszechny weekly magazine: “in the wrong is not the bird that wants its own nest to faul, but the one that to faul it does not allow”.
Translated by: Olga Łabendowicz
The article was originally published in Polish at liberte.pl