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A Surprise Victory for Democracy in Poland
This is what a constitutional separation of power looks like: Poland’s President Andrzej Duda surprised observers across Europe by vetoing two bills that had been rushed through parliament and would have given his own populist government sweeping powers over the nation's courts. It comes as a surprise because President Duda hails from the same political party, right-wing Law and Justice Party, which controls both houses of the legislature.
On Friday, the Polish Senate had approved a law passed earlier in the week by the lower house of parliament, the Sejm, that would effectively eliminate judicial independence in what had been one of the most promising and successful post-communist democracies in Europe. The ruling Law and Justice party, effectively led by Jarosław Kaczyński, had appeared unmoved by the growing number of critics, inside the country and across Europe.
As professor, Maciej Kisilowski of Central European University wrote last week, "In stunning defiance of the Venice Commission — the Council of Europe’s constitutional watchdog — and a host of other European institutions, PiS [the governing party] has methodically taken over the Constitutional Tribunal, the public prosecution authority, and the public broadcasters."
He continued, "The one check on its consolidation of power has been the Polish judiciary. Now, in a series of dramatic moves, brazen in their contempt for basic European values, PiS is moving to place the judiciary under its control.”
Tens of thousand of Poles across the country have been demonstrating against the move – using the hashtag #wolnesądy or "free courts" on social media. Many of the older demonstrators once marched with the free trade movement Solidarność (“Solidarity”) against Communist repression in the 1980s, as Poland led central Europe’s peaceful, negotiated transformation into free market democracies.
Later, Poland was among the first of the former Soviet bloc nations to join NATO (in 1999) and the European Union (in 2004), and the country has come to play a significant role in European affairs. Indeed, the current President of the EU’s governing Commission, Donald Tusk, is a former prime minister of Poland. Tusk had warned against enactment of these laws, saying last week that the PiS moves on the courts went "against European standards and values", harmed Poland's reputation and risked marginalizing the country.
And, popular support for the EU is higher in Poland than in any other member country, with more than 75 percent supporting participation. Small wonder, as the EU provides substantial subsidies to its less wealthy members and Poland is the largest beneficiary of its neighbors’ largesse. Moreover, Poles may travel and find jobs and go to universities in 27 other member states – and many young people in particular have taken advantage of these opportunities.
The authoritarian turn by Poland’s current government, however, risks all this. The Commission’s first vice president, Frans Timmermans, had put Poland on notice this past week that the EU would seek, for the first time, to utilize an “Article 7” procedure to suspend Poland’s voting rights in EU deliberations. Other European leaders are also talking about ending the massive subsidies to Poland.
This month’s hasty move to control the judiciary was not the first measure to indicate that Poland has been backsliding in terms of democratic consolidation. As previous measures to turn public media into state propaganda and to curtail independent civic watchdogs have contributed to a sharp decline in democracy scores, according to independent analysts.
Having failed to thwart Hungary’s moves systematically to eliminate checks and balances, mount public campaigns against independent voices in the media and universities, and fall out of the ranks of the most democratic nations, European leaders have responded more forcefully to Poland’s wayward turn. This concern has echoed the voices of many Poles – a people who are proud of the fact that theirs was the first country in Europe to adopt a democratic constitution — on May 3, 1791, even before revolutionary France. The ruling Law and Justice party has, however, been scornful of expressions of concern from Brussels and several European governments – and from leading judges in the neighboring Czech Republic. It is counting on the government of Hungary, which has moved even more briskly since coming to power in 2010 to deconstruct its new democracy, to veto EU actions against Poland’s assault on the judiciary.
Among those to praise President Duda was Lech Wałęsa, the former president of Poland, who as a shipyard electrician became leader of the Polish trade union Solidarność, which helped bring down communism across Europe. Mr. Wałęsa called President Duda’s decision “difficult and courageous,” saying it showed that President Duda is living up to the responsibilities of his office. Yet, he also urged Poles to continue their protests to force President Duda to also reject a third bill that will enable the national government to appoint the heads of local courts.
It is not clear that these vetoes have resolved the crisis, or simply moved it to another stage, as legislators will now have to consider their options for revising the proposals or setting them aside. The stunning setback for Mr. Kaczynski may well lead to more confrontation. But, for the moment, Poland has witnessed a reaffirmation of the value of peaceful protest and international support for democratic structures and values.
Read Thomas Melia's interview in Voice of America about Georgian democracy.
As a fellow with the Human Freedom Initiative, Thomas O. Melia is helping lead an effort to reaffirm core values of freedom, free markets, and liberal democracy. One of the goals of the Human Freedom Initiative is to foster a new bipartisan consensus that it is in the American interest to advance these principles at home and around the world.
Mr. Melia recently served in two senior positions in the Administration of President Barack Obama. As Deputy Assistant Secretary of State for Human Rights, Democracy and Labor from 2010 to 2015, he was responsible for the bureau’s work in Europe, South and Central Asia, and the Middle East. From December 2015 to January 2017, he served as Assistant Administrator of the U.S. Agency for International Development.
Mr. Melia has written for numerous publications, including the Washington Post, The New Republic, Journal of Democracy and The American Interest. He is co-editor of Today’s American: How Free? – a comprehensive assessment of the state of civil liberties and political democracy in the United States.
Earlier in his career, Mr. Melia was Deputy Executive Director of Freedom House; Vice President for Programs at the National Democratic Institute for International Affairs; and a legislative assistant to Senator Daniel Patrick Moynihan (D-NY). He has taught in the graduate programs at Georgetown University and The Johns Hopkins University School of Advanced International Studies.
Mr. Melia lives in Chevy Chase, Maryland with his spouse, Amy S. Conroy, and their son, Tomás.Full Bio