By John Lloyd
The demonstrators are out on Polish city streets, singing the national anthem and chanting “konstytucja” (constitution). They believe that their country’s constitution is being violated, and that the ruling right-wing Law and Justice Party is degrading the law and dispensing with justice by sealing off the institutions which can hold a ruling party to account.
Their protests are directed at the government’s attempts to purge Poland’s Supreme Court. The administration has already passed measures narrowing the court’s remit and increasing governmental control over the judiciary. It is now trying to enforce legislation lowering the retirement age of Supreme Court judges from 70 to 65, with the effect of forcing at least a third of them into retirement. This includes the court’s president, 65-year-old Malgorzata Gersdorf, who nevertheless turned up for work at the court’s imposing Warsaw headquarters on the day after the law came into effect.
Her resistance makes Poland emblematic of the populist attacks on institutions which hold governing power to account, privileging “the will of the people” over all else. Increasingly, the institutions that liberal democracy relies on are under sustained attack.
The government argues that Gersdorf and her fellows are communist holdovers who have not come to terms with the new Poland. Jaroslaw Kaczynski, head of the Law and Justice Party and Poland’s de facto ruler, told the pro-government weekly Gazeta Polska that Gersdorf and her allies were “doomed to fail miserably” in their protests.
Gersdorf, the court’s chief justice, is not, on the face of it, a likely communist stooge. A member of the anti-communist movement Solidarity in the 1980s, she was appointed after the collapse of Warsaw’s communist government to a commission that helped put political prisoners back to work. She has resisted the pressure on the courts consistently, calling on her fellow judges last year to “fight for every inch of justice.”
That fight has met, so far, an adamantine refusal to compromise from the government. When Prime Minister Mateusz Morawiecki took the battle to the European Parliament, he told the members that Poland, as a sovereign state, had every right to pass its own laws – adding that when Europeans “feel that they’re losing influence on the future of Europe and the world, then they’re going to oppose what’s happening. You can call that populism,” Morawiecki continued, “but at the end of the day, we are going to have to ask questions asked by citizens and their expectations.”
The EU, conscious of the Polish government’s touchiness about its rights, has long been cautious of confronting it on the judicial issue. However, Brussels has now reached a limit of its tolerance and launched an Article 7 process, giving Warsaw three months to back down or face sanctions, including possible loss of voting rights, for a serious breach of the Union’s values.
I spoke earlier this week to Radek Sikorski, a former foreign minister of Poland. Sikorski was educated partly in the UK, studying at Oxford University before becoming a war correspondent whose work included a perilous posting in Afghanistan during the mujahideen’s war against the Soviet Union. Now in the Polish opposition, he is no automatic liberal; he thinks that liberal governments in Europe are in part to blame for the rise of the national-populists since “they ignored or downplayed the problem of immigration on the EU’s southern borders.”
Sikorski believes that “Italy, Austria and Hungary took measures to protect their borders because we collectively failed to protect Europe’s external perimeter. We need to take back control.” His concern is that the EU, and the Schengen area of free movement, be protected – and that this should be the main mission of the liberal parties. Though he sees similarities among the nationalists of Europe, he thinks that an agreement on greatly restricting the flow of immigrants is possible, and that will draw much of the sting out of populists’ appeal.
Yet while believing the nationalist-populist parties to be essentially democratic, at least in their moves to stem immigration, he makes an exception of his own country, seeing the Law and Justice Party government as one which has repeatedly broken Poland’s constitution, and viewing its measures against the Supreme Court as a political purge, designed to abolish the separation of powers.
For Sikorski, as for the demonstrators, a basic issue underlying the government’s measures on the judiciary is that of accountability. Governments in liberal democracies accept – indeed, at times encourage – a range of institutions which hold them to various kinds of account. These include national parliaments and senates, the judiciary, the news media and in differing ways the civil service, academic institutions, trade unions, business organizations and NGOs.
Watchdog institutions annoy elected governments by delaying them, by exaggerating the downsides of their legislation, by ignoring the pressures and difficulties of governing and by making mistakes which they rarely admit. Their saving grace, their democratic imperative, is that they force leaders to justify and debate their policies, while providing competing narratives of their own on the nature of efficiency of their governance.
Throughout the former communist states of Central Europe, a civil society which nourishes and develops these account-holding institutions is thin and often hesitant. The opposition is often cowed or idle, the news media controlled by government or oligarchs with their own business agendas, the courts struggling to gain authority. A pall of corruption hangs over several countries, seemingly impossible to diminish. Wojciech Przybylski, the editor of Visegrad Insight, which covers Central Europe, told me that, especially in Poland, “the aim is not so much to build new institutions as to subordinate the existing ones to the government’s control.”
“Holding to account” has been the motto and the pride of civil society institutions, since liberal democracy became widespread in the 20th century, especially after World War Two. Post-communist societies would, it was believed, quickly adopt these institutions, and invest them with power. It is taking longer than was thought. And even in countries with centuries of democracy – such as the United States – it can seem fragile.