QUO VADIS, POLAND?

11/10/2019
Press release

An interview with Polskie Towarzystwo Prawa Antydyskryminacyjnego (the Polish Society for Antidiscrimination Law), ahead of the 13 October general elections in Poland, on the illiberal turn in Polish politics

The state of Polish politics is at a critical turning point, and the results of the general elections taking place this Sunday, 13 October, stand to either renew the mandate of the governing party, Prawo i Sprawiedliwość (Law and Justice), which has pursued an ultra-conservative programme of reform over the past four years, or to challenge that mandate and, along with it, Law and Justice’s vision for the future of Poland. Europe more broadly has seen a shifting political tide in recent years in which the basic tenets of European liberal democracy are undergoing renewed contestation. The rise of nativist and populist movements across the continent have sought to challenge well-established principles from the separation and balance of powers to the rule of law itself, fueling fragmentation of the political spectrum, splintering traditional centrist blocs, and fostering the ascent and acceptance of far-right parties across all of Europe. In Poland, this trend has found strong and persistent expression, with the Law and Justice party challenging fundamental democratic principles, appealing to shared kinship and atavistic loyalties to territory, and translating a divisive “us vs. them” rhetoric into repeated electoral successes. Following a series of controversial reforms by the Polish government to the judiciary and media, the European Commission initiated action against Poland in early 2016, ultimately triggering Art. 7 of the Treaty on European Union (TEU) in late 2017, on account of a clear risk of a serious breach by the Polish government of the principles upon which the Union is founded. However, this has not prevented the Polish authorities from continuing to trample on democratic principles and the rule of law, and from violating human rights across the board. In this context, and ahead of the October 13 elections, FIDH has reached out to its member organisation in Poland, the Polish Society for Antidiscrimination Law, to get a first-hand account of how the situation in Poland is currently developing and to share their views on what is to be expected, at the national and the EU level, as a result of the elections.

The political situation in Poland has transformed a great deal in recent years, with a sharp rise in expressions of nationalism, social and religious conservatism, and euroscepticism. A new populist politics have emerged out of this and appear to be fueling a particularly divisive and pointed public discourse aimed at establishing a dominant and univocal narrative on key social issues. What is driving these new social/political forces and are we now beginning to see in Poland a reversal of the liberalization achieved in these areas?

Poland remains a country of vast inequalities. As highlighted in the latest report by the World Inequality Database, the yearly income of the country’s richest 1% amounts to the overall yearly income of the poorest 32%. Any and all analysis of the continuing success of the populist parties in recent years should be conducted with that mind. Political entities with concerningly strong and authoritarian-style leadership, such as the Law and Justice (Poland’s governing party), are quite keen on coming across as supporters of traditional family values as contrasted with the hostile “westernized” ideals which supposedly pose a threat to Polish children and youth. At the same time, social aid has been used as a means to prove how much worse off Polish families were with “liberals in power.” All of this is carried out with a strong “us vs. them” mentality. Such actions contribute to a feeling of being surrounded and embattled, and feed into a fear that sometimes prompts aggression. Nationalism, social, religious conservatism and euroscepticism (although the Polish society remains one of the most pro-EU member states) are often depicted as a last stand for the traditional lifestyle, which is still very important to a large part of Polish society. They further provide a false promise of stability in an ever-changing world and give easy answers to very difficult questions. It must be mentioned that due to a visible lack of quality civics, antidiscrimination, and human rights education in the years leading up to the recent political changes, it is no surprise how terrifyingly simple it is to create scapegoats, enemies of the state, against whom the entire nation purports to be under an obligation to protect itself. In 2015 that enemy was envisaged in the immigrant (even though Poland opposed the migrant relocation schemes proposed at the EU level and continues to be one of the most homogenous societies on the European continent). Next, there were the judges and legal professionals – accused of having ties to the socialist past (even though it was the Law and Justice party that chose a former communist prosecutor to lead the Human Rights Commission in the lower chamber of parliament...). And today, right before the elections, it is the LGBTI+ community along with its allies that, in the eyes of the government, work to undermine the stability and safety of the state and of the Polish nation. It is difficult, close to impossible, to reason with those who are convinced that they are at war: at war with fellow Poles, besieged by foreign and treacherous ‘values’. Propaganda spread by the public media (controlled by the government) delivers as needed – be it a mention of how bad it was before; how strong support remains for Law and Justice now; or how foreign funds reach NGOs working in the country. This is clearly in line with the thinking presented by Orban’s Hungary: where there are foreign (especially Western) funds, it is believed that a secret foreign agenda is conspiring to undermine the nation’s sovereignty. The role of the Church should also not go unmentioned. Recently, a well-recognized bishop chose to name the LGBTI+ community a “rainbow disease”, which links directly to the traditional-values-first campaign the governing party has been leading. In a country where 87% self-identify as practicing Catholics, words spoken by Church officials are highly respected and viewed by many as irreproachable. For hundreds of years the Church remained a safe haven for the opposition and those fighting for Poland’s independence - this fact helps explain its stature and important influence in Polish society today.

In addition to the political and social transformations we’ve been seeing, there has also been extensive reporting on the current administration’s attempts to reshape institutional relationships, particularly as to the courts, and force the passage of constitutional and legal reforms aimed at centralizing authority with the national government. This, among other reasons, has created tension between the government and the judiciary, with judges being subjected to public criticism and disciplinary actions of questionable justification. Is the independence of the judiciary under threat in Poland?

The short answer is yes. The longer one consists of the numerous reports researched, composed, and submitted on the topic to international institutions and the public by entities such as the Stefan Batory Foundation, the Helsinki Foundation for Human Rights, Amnesty International, as well as judges’ organisations themselves. Their outcry was recognized globally, but not by the governing party and those in power. Starting with the refusal to publish judgments of the Constitutional Tribunal (as required by law) and ending with attempts at overtaking the Supreme Court and the successful political recreation of the body once recognized as the National Council of the Judiciary (responsible, according to its legal basis, for safeguarding, e.g., the independence of the judiciary), what has happened in Poland over the last four years is not only worrying in and of itself, but should serve as a wake-up call for other European states. Poland was once the golden child of the post-communist block and a dark horse in the race toward full European integration. Today, the independence of the judiciary along with the preservation of democratic checks and balances rest only on the shoulders of the judges themselves, judges who are victims of astounding smear campaigns, often financially supported by individuals with political ties, and broadcasted by the politically controlled public media. The Prosecutor’s office no longer fulfills its purpose; it has been welded with the office of the Minister of Justice, who remains a politician of the governing party, thus obliterating any guarantee of independence, besides that which rests on the integrity of the officeholder. Disciplinary proceedings are launched against those judges who protest the newly adopted laws and/or refer to the Court of Justice of the European Union for an interpretation of the law which would be consistent with the EU acquis. Personal files are somehow leaked to online troll accounts. In over four years no judge, no lawyer in the country, no one going against the tide, can honestly say that they do not fear the instability which may cost them both professionally and personally, particularly in view of the fact that the hate speech and smear campaigns are often aimed at the personal lives of judges and lawyers.

The Law and Justice government has sought to control the media as part of a broader push to gain control over public political discourse and to silence independent and critical/dissenting voices. By encroaching on the media’s independence and restricting media pluralism, the government has fueled a deepening polarization within Poland. In the context of the current elections, how have these changes in the media affected the ability of candidates to campaign on an equal footing as well as the public’s ability to make informed decisions at the ballot box?

It is no exaggeration to say that the public media’s current sole aim is to create a positive image of the governing party. Only public media outlets (apart from TV Trwam, a Catholic media outlet, and various deeply conservative newspapers) have any chance of securing interviews with the leader of the governing party, Kaczyński (thereby ensuring that he and the Law and Justice party are always covered in a favorable light or, at the very least, are not subjected to difficult questioning). Some opposition members have decided to boycott any involvement with public television, which has in turn made it all the easier for Polish Television to highlight only one side of the story. Attempts to reverse this now, ahead of the elections, have failed. Those who choose to engage with the public media are very often not provided enough time or space to articulate their positions; instead, public media journalists pose rhetorical and bad faith questions, putting opposition members more on an “accused stand” rather than in the position of an interviewee. For four years, any dissenting voices appeared on privately owned channels – which in turn led some of the public to believe those voices were carrying out the secret agenda of foreign powers (a narrative often used by those in power). Who controls the media, controls minds. This explains the numerous government proposals to introduce obstacles for private entities both in regards to entering the media marketplace and to the content that can be published (several attempts have been made in recent years to seek judicial orders that would ban publications from covering certain topics adverse to the government position). Authoritarian-style leadership confronts independence in any way, shape or form. It is cause for great worry to think about how the numerous years of propaganda have cultivated a misshapen view of reality for many Polish citizens. Will there be as many informed as uninformed decisions at the ballot box? We can only hope for fewer of the uninformed.

How have these developments collectively impacted the respect for the rule of law, as well as human rights protections, and the enjoyment of fundamental freedoms more broadly in Poland?

Law and Justice politicians often mention past polls, in which respondents supported the idea of reforming the judiciary. This, of course, aims to justify what has been done to the courts, the Constitutional Tribunal and the National Council of the Judiciary. It is an appalling attempt to twist the reality of a politically charged takeover of key state institutions into a “simple reform of the judicial branch.” The same has been done to other areas of public life – those protecting the rule of law by appealing to international standards were deemed traitors. Human rights got redefined – when women walked out of Sunday masses as part of the Black Protest, freedom of religion or belief was cynically invoked as an argument to initiate criminal proceedings against some of them (by claiming their actions disturbed those praying). A troubling judgment of the now politically captured Constitutional Tribunal was issued, which amounted to a justification of the limitation of the freedom of assembly (in order to accommodate a novelization of the Law on Assembly Act). Freedom of economic activity was used as a legal basis for removing a provision in the misdemeanors code allowing for sanctions against those who discriminate when providing goods and services. Eliminating this law leaves LGBTI+ persons, who under Polish law are not protected against discrimination in this area (and in all other areas but employment), even more vulnerable (but this perhaps will fail to shock in a country where crimes against the LGBTI+ community are not recognized as hate crimes). All this and more – along with the mass production of pro-government NGOs who serve the ruling party’s interests, and orchestrated smear campaigns against independent human rights NGOs – has pushed Polish society to be wary and skeptical in response to calls for the need to protect democracy, its mechanisms, institutions and standards.

Finally, in response to these developments, what role has Polish civil society played, and what are the calls for action that it is currently making. Based on your reading of the broader state of play, what expectations do you have that Poland will course-correct and ultimately vindicate the resilience of European democracy, and that action at the EU level will be effective in prompting it to do so?

Over the past four years, numerous open letters, calls to action, reports and analyses have been produced, presented and shared at the international, and particularly, EU level. Some were created by national NGOs, some came from fact-finding missions and analysis of international, governmental and non-governmental organisations and bodies. Responses were also issued – many reached the Polish government, but to no avail. At the EU level, the launch of infringement proceedings, and especially of the procedure laid down in Article 7 of the Treaty on European Union (TEU) were a welcome step towards holding the Polish government accountable for violating EU principles. What is equally important to bear in mind is that a clear need exists to include violations of all the principles enshrined in Article 2 TEU (not only the rule of law) in applying scrutiny under Art. 7 TEU. Maintaining international and regional pressure, including peer pressure, in dealing with governments like those in Poland and Hungary is crucial, as public action leading to the deterioration of democratic mechanisms and standards should never be normalized. Poland will not course-correct on its own, without the EU and member states taking a firm stand against the dismemberment of European and democratic principles. Member states should view any process directed at verifying whether the so-called ‘Copenhagen criteria’ (including respect for democracy, the rule of law and human rights), which candidate countries are requested to conform to when acceding to the EU, are being followed and respected by their peers, without shying away from confrontation. Initiatives such as the one currently under discussion, aimed at linking respect for those principles to the disbursement of EU funds, should also be given due consideration. What remains a fear is the fact that when foreign views are mentioned, the independence and sovereignty sword is drawn, which cuts the discussion short. Without directly reaching the Polish nation at the same time, a battle with the Polish government is a battle lost. For it is not Poland that is in the spotlight due to the recent changes in power. It is those ruling it. The country and its people are only paying the price. Hence, any foreign intervention should be carried out tactfully and in a way that actually supports national civil society, and should not be framed in terms of “foreign aid.” This would allow for the disarmament of arguments that appeal to the protection of the Polish nation against destructive ‘Western values’.

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