Living and researching in the captured state (Poland): Perspective of an Italian student Par Gabriele Maria Morrone
L’objectif de cet article est d’esquisser un portrait de la Pologne tel qu’elle apparaît aux yeux d’un étudiant italien qui a vécu et mené des recherches dans ce pays pendant un mois et demi et, en outre, de décrire les échecs et les stratégies les plus efficaces pour contrer le recul de l’État de droit polonais. A long terme, l’amélioration des relations entre le peuple et les pouvoirs constitutionnels, tels que le pouvoir judiciaire, est l’arme la plus efficace contre le populisme en Pologne et dans l’UE.
The purpose of this article is to give a portrait of how Poland appears at the eyes of an Italian student who lived and researched in the country for a month and a half and, additionally, describing the biggest failures and the most successful strategies implemented in countering Polish Rule of Law Backsliding. In the following lines it is argued that -for the long term- improving the relationship between the people and the constitutional powers, such as the judiciary, is the most effective weapon against populism in Poland and EU.
Par Gabriele Maria Morrone, étudiant à l’Université de Bologne
“To create a Constitutional Democracy we need lawyers, to destroy it is sufficient to have alumnus of law faculties”. These are the words that judge Wyrzykowski pronounced during an interview at the end of last January, perfectly describing the feelings that I have experienced since the beginning of my research on EU-NGOs responses to Polish democratic backsliding. As a matter of fact, on several occasions, PiS actions aimed at tackling the Rule of Law appeared clumsy as well as illiberal. One of the best examples is the tragicomic scene of four newly appointed Constitutional judges running to the presidential palace in order to swear in before President Duda in December 2015.
This article does not provide a description of the reforms implemented by PiS and the consequent EU law evolution to counter them. Much more authoritative scholars have analysed the issue. The aim of the following lines, instead, is to give a portrait of how Poland appears at the eyes of an Italian student who lived in the country for a month and a half. First of all, the objective of the research was to assess the defence capacity of a European liberal democracy in the face of a populist drift. Additionally, warning the European institutions about the possibility that what is happening in Warsaw could be repeated throughout Europe. Ultimately, denying the idea, widely spread in western Europe, that Poland is not doomed to be democratic in reason of socio-political causes rooted in its history.
My work was supervised by Professor Tomasz Tadeusz Koncewicz, who gave me the opportunity to access a huge quantity of literature on the issue. During my permanence in Poland, I carried out some interviews with representatives of the NGOs dealing with the topic, members of the Ombudsman office and the OSCE Rule of Law Unity.
Each person, mixing anger with commitment, portrayed a divided Poland. On the one hand, the deeply pro-European and progressive part of the country that has experienced the benefits of EU membership. Consequently, at the forefront of safeguarding the Rule of Law guarantees. On the other hand, the losers of the EU integration. Firmly anchored in their religious and moral values in a world they no longer understand, which therefore appears threatening. In particular, little aware of what Rule of Law means. However, this division, which is effectively exploited by the PiS, is not so clear-cut. In the course of the research, numerous points of contact between the two parts of the country have appeared, as well as some strategies that, if implemented, could change the perception of the democratic emergency for the unaware part of Poland.
A popular response: No more Elitism vs Populism.
People must not be considered naturally uneducated. So, it should be a duty of lawyers and politicians to explain in an accessible way the consequences of PiS reforms. Therefore, they should have already started doing that since the unconstitutional appointment of 3 judges of the Constitutional Tribunal in December 2015. Unfortunately, this did not happen. Except for a few scholars or the institutions that have decided to carry out this task. For instance, in 2017 and 2018, the Ombudsman office promoted several regional meetings in small cities all over Poland in order to know local problems and to explain people what was happening in Warsaw. In fact, although the dispute was being extensively covered by media, “people were hungry for information”, as referred by the interviewed member of the Ombudsman. Unsurprisingly, the matter at stake was difficult to be understood by someone without any competences in law. Likewise, the Supreme Court showed that it wants to address a non-specialist audience in its resolution of January 23, 2020. Judges used a simpler and more familiar tone. This meant a terrific change in judiciary communication. In fact, up to that moment, even the most significant Sentence was thought for specialized audience. Consequently, as they were cut off, people developed an increasingly acute indifference to decisions concerning the independence of the judiciary. This last sentence of the Supreme Court changed the perception, demonstrating, if ever further proof were needed, the necessity of involving the population in this phase of attack to the Rule of Law.
Let us be clear! Changing the elitist image of Polish judiciary is not sufficient to resolve the problem. The judicial system has already been fundamentally altered and several tasks, such as the Constitutional revision, are not being freely carried out. But an Institution, however technical it may be, needs popular support. The war in defence of the Rule of Law must be waged with effective weapons. As long as the public perceives the current situation as a dispute between judges, the defence of democracy will remain an interest of a few informed citizens. What has just been said, however, does not apply only to Poland. The reaction to populism must necessarily be popular. In Warsaw as in Brussels or Rome. In any case, simplifying is not trivializing. Since technicalities are not comprehensible to the general public, the focus must be on the idea behind the Rule of Law.
The role of the EU: Respect for the Rule of Law beyond Economy.
On September 2013, the then EU Commissioner for justice Viviane Reding, declared that “Europe is not only an internal market or an economic and monetary union, but also offers its citizens a European area of freedom, security and justice. […] To be successful, it requires the confidence of all of our citizens and national authorities in the legal systems of all other Member States. This confidence will only be given and maintained if we can be sure that the Rule of Law is observed fully in all Member States.” I have thought about these words very often during my permanence in Poland. In fact, according to the PiS leaders, the EU is a mere economic artifice useful for Polish economic development but considered a foreign threat in case of interference with domestic affairs.
Unfortunately, this idea is increasingly popular within Polish society because of the attitude of the European institutions, especially interstate ones. For instance, the Council has over the years adopted a double standards politics. In fact, it has acted as a ‘hawk’ in economic and monetary matters, while it has proved to be a ‘dove’ in demanding the respect for the Rule of Law. Another problematic issue is the efficacity of the EU tools. The academic debate is still open. Someone argued the necessity of creating some new instruments (Systemic Infringement Action’ ‘Rule of Law infringement procedures’), someone else stated that the current instruments are enough, if used in a proper way. Once again, I do not think this article could add much more to the debate. It can only be stressed that the Polish case, unlike the Hungarian one, has generated an expansion of the scope of some EU conventional instruments such as the Infringement procedure. Consequently, the ECJ’s action following the ASJP judgment has been much more effective. Anew, it has been confirmed the idea that the EU supranational institutions such as the European Commission and the ECJ have greater capacity to ensure respect for the rule of law in the Union.
One last point is the relationship between EU and NGOs. All the interviewed representatives identified two areas in which cooperation could be improved. In the funding area where a reduction in the amount of European funding allocated through the Member States might be considered. Building on the studies already carried out by the European Parliament on the feasibility of a more transparent change in the allocation of funds. In this way, NGOs would benefit, since they would not have to be under the heel of the government they are supposed to monitor. It would also be extremely useful to strengthen the mechanism of information-sharing between the EU and NGOs. In this optic, the EESC should be strengthened in order to provide a mechanism that could bring information to both sides. This in order to give NGOs the opportunity to keep update on what is happening in the European institutions regarding the areas of their interest. At the same time, this two-ways information mechanism would finally give the Union the opportunity to monitor what is occurring in the Member States, how its policies and its legislative acts impact on the different realities.
It is time to find a common and decisive way to deal with democratic backsliding. A trend that jeopardises EU surviving and makes, as demonstrated, Institutions less efficient. It is necessary to find a solution that could put together people and Member states interests with EU values. A solution that could adapt EU response to answer populist threat. This, avoiding letting the EU appear like only a technocratic structure. Paradoxically, in the populism era, the solution is to make popular the EU and judges.
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 Resolution of the Civil, Criminal and Labour & Social Insurance Chambers of the Supreme Court of 23 January 2020, available at https://www.iustitia.pl/en/activity/informations/3635-resolution-of-the-civil-criminal-and-labour-social-insurance-chambers-of-the-supreme-court-of-23-january-2020 [last visit 11/06/20].
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 Democratic accountability and budgetary control of non-governmental organisations financed from the EU budget – Update, January 21, 2019, available at https://www.europarl.europa.eu/RegData/etudes/STUD/2019/621798/IPOL_STU(2019)621798_EN.pdf [last visit 11/06/20].
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Crédit photo: Jacek Halicki, Wikimedia, CC 3.0