Poland's legal mess

WARSAW — Next door to Ukraine, where people are being killed every day for wanting to join the European Union, Polish leaders are waging what they have called a war on two fronts, against both Russia and the EU. As a result of this “war”, the country’s populist government, led by the right-wing Law and Justice (PiS) party, has failed to unlock the 160 billion euros ($170 billion) that was allocated to Poland under the EU’s pandemic recovery fund. While the government has negotiated a programme with the European Commission to release the funds, which requires merely clearing the low bar of not brazenly undermining the rule of law, getting the reforms approved by the Sejm (parliament) has proven to be difficult.

Poland cannot afford to forego such money. Few other European countries need economic support as much as Poland does. The country’s GDP growth is among the weakest in the EU, and, thanks to the country’s notoriously incompetent central-bank president, Adam Glapinski, a close friend of PiS chairman Jarosław Kaczynski, inflation is running at almost 20 per cent. Making matters worse, in October 2021, the European Court of Justice fined Poland 1 million euros per day for ignoring an EU ruling ordering it to suspend a judicial disciplinary chamber created to punish judges who do not toe the PiS line. Those daily fines now total close to a half-billion euros.

This all comes at a time when Poland urgently needs to increase its defence spending. The government has plans to purchase 250 Abrams tanks, 32 F-35 aircraft, and 500 HIMARS from the United States, as well as 180 K-2 tanks and 48 FA-50 fighters from South Korea. Moreover, the Polish army is expected to grow to 300,000 soldiers, making it the strongest and best-armed military in the EU.

A common misconception is that an intransigent European Commission is blocking the EU funds. In fact, politicians in Brussels, Paris, and Berlin have been bending over backward to create a pretext for allowing the funds to be released. The programme the Commission negotiated with the Polish government in December represents the bare minimum of enforcement of the Union’s rule-of-law standards.

For example, EU authorities effectively gave up on ensuring that the negotiated revisions to Polish legislation would actually restore the rule of law to EU levels. Instead, they will merely seek to move the ball in the right direction: returning suspended judges to the bench, transferring the power to discipline judges to the Supreme Administrative Court (though this is not permitted by the Polish constitution), and introducing a credibility test for the “neo-judges” who were elected in violation of the law. These changes are a far cry from what the EU initially wanted: namely, a reversal of the reforms that allowed PiS to take over the Constitutional Court and the National Council of the Judiciary (which appoints judges).

Nor is the Polish opposition, which has been helping the government on patriotic grounds, responsible for the funds remaining blocked. The problem lies within the ruling coalition. The compromise agreement with the EU has not been approved because Minister of Justice Zbigniew Ziobro and his mini-party, which commands the support of just 0.7 per cent of Poles, and President Andrzej Duda have thrown sand in the gears.

First, Ziobro did not want to agree to any deal because he had taken an openly anti-EU position and previously decried any compromise as a national betrayal. At the same time, Kaczynski did not want to throw Ziobro out of the government, because he needed to maintain unity within his coalition ahead of the upcoming general election. It was only thanks to the opposition that PiS managed to garner enough parliamentary support to pass the relevant laws.

But now Duda has rebelled. Having become attached to his unwarranted power to select judges, he refused to sign the bill and instead referred it to the constitutional court, and immediately turned the situation into a political mess, because the very court that will rule on the constitutionality of the proposed changes is itself unconstitutional. It is as if the decision on what to have for Christmas dinner were left to the turkey.

Nor does the absurdity end there. The judges on the constitutional court have been quarreling among themselves. At issue is the presidency of the court, currently occupied by Julia Przyłebska. While some on the court say that her term expired in 2022, she claims that it ends in 2024, and current law does not allow for a straightforward resolution to the dispute. Poland’s leaders have become lost in their own morass of illegality. With thousands of judges having been elected improperly, there are now several million verdicts that stand to be challenged.

Given the legal chaos into which Poland’s government has plunged the country, there will be no EU recovery funds before the election this fall, which should give the opposition a big advantage. The election could become a plebiscite on whether Poland should receive 160 billion euros. So far, the issue has not affected voter preferences. The huge sum, like the constant changes in the law, may be too abstract to motivate ordinary citizens. In that case, we can expect PiS to keep changing everything so that everything stays the same.

Sławomir Sierakowski, founder of the Krytyka Polityczna movement, is a senior fellow at the German Council on Foreign Relations. Copyright: Project Syndicate, 2023. 

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