Tightening his grip.

Photographer: Janek Skarzynski/AFP/Getty Images

Poland Is Testing the EU's Commitment to Democracy

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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At the moment, Europe’s attention is focused on Austria’s presidential election, where a far-rightist was defeated by a razor-thin margin on Monday. But in Poland, where I spent the last several days, the consequences of a far-right government can already be felt. The European Union has given the ruling Law and Justice Party, known as PiS, until Monday to repeal its effort to hamstring Poland’s constitutional court. PiS has answered with a resounding “No.” A full-blown domestic constitutional crisis is brewing, which could have major implications for democracy in Europe.

QuickTake Poland’s Populist Turn

This state of play is the result of elections last year that gave an absolute majority to PiS in the legislature, even though it won 37.6 percent of the vote on a turnout of 51 percent. The party’s leader, Jaroslaw Kaczynski, effectively combined conservative social policy with populist economic policy. (Sound familiar?)

The weird twist is that Kaczynski is the twin brother of the former Polish President Lech Kaczynski, who died in 2010 along with his wife and a large number of other senior figures in an airline accident in Smolensk, Russia.

The national trauma was significant: A somber, black marble monument to the dead stands in front of the presidential palace. The individual trauma also seems to have had its effect. The surviving Kaczynski reportedly blames the accident on an unlikely conspiracy of Vladimir Putin and the previous Polish government.

Propelled to power partly on the strength of Kaczynski’s appeal, PiS moved quickly to pass laws that make it more difficult for the highest court, the Constitutional Tribunal, to overturn any of the government’s decisions.

The constitutional court itself refused to follow the new laws, which it said were unconstitutional. The president of the court -- in essence, its chief justice -- has refused to assign cases to three judges whom he and his colleagues say were named unlawfully.

Ordinarily, governments undertake such court-packing only after a court has struck down their legislative initiatives. But the reversal of the usual order is only apparent, pro-democracy activists told me. While in power in the 2000s, conservatives were frustrated by the independence of the constitutional court. This time they resolved to thwart the court before it could stand in their way.

PiS says the court’s actions are illegitimate. The government insists that it hasn’t violated the Polish constitution, but only appointed new judges and passed legislation that changes the tribunal’s voting procedures.

Some municipal officials around Poland say they intend to follow only the judgment of the court. The central government, controlled by PiS, rejects the court’s position.

The textbook definition of a constitutional crisis is when different parts of the government can’t agree on what the constitution requires -- or who gets to decide.

The path to resolution isn’t clear. The tribunal president’s is serving the final year of his term. When he steps down -- assuming that he does -- the constitution authorizes the Polish president, a former member of PiS, to appoint a new one. Anyone he chooses will presumably give cases to the controversial judges and purport to speak on behalf of the court.

So far there’s been no violence. But KOD, a new pro-democracy movement, put an estimated 200,000 people on the streets for a protest in early May. Its leaders say they are worried that it’s only a matter of time before blood is spilled.

The EU reacted to all this with concern. Its Venice Commission, which focuses on constitutional rights and the rule of law, issued a report condemning the moves. And the European Commission itself told the government that if it didn’t fix the problem, European authorities would take the next step of a formal investigation that could lead to recommending that Poland lose its vote on the powerful EC.

As a threat, it’s not clear how strong this is. The relevant European treaty says a country can lose its vote only if no other country vetoes the measure. But Viktor Orban, Hungary’s rightist prime minister, with whom PiS has close ties, has signaled that Hungary would veto any attempt to sanction Poland. Small wonder, since Orban has engaged in his own gradual attempt to hollow out democracy in Hungary by formally legal means.

So the EU’s leverage over PiS is limited. Reflecting that view, PiS staged a vote last week in the parliament declaring that Poland was “sovereign” and therefore would not be bullied by the EU.

It’s hard to imagine that the language of the unrepentant PiS vote wasn’t affected by the rhetoric of the movement pushing for the U.K. to leave the EU, which emphasizes that membership, particularly in the European Commission, compromises British sovereignty.

Another echo is the recent insistence by President Recep Tayyip Erdogan of Turkey that the EU can’t tell him how to govern his country.

Of course, Turkey isn’t part of the EU. Erdogan was reacting to EU efforts to suspend the refugee deal negotiated with Turkey if Erdogan won’t change a tough anti-terrorism law that can be used to target even democratically mined opponents.

PiS has its own pending anti-terror and surveillance bills that will expand the domestic reach of the Polish intelligence services.

Erdogan has gradually been reversing two decades of democratic progress in Turkey, much of it accomplished because the EU productively linked increased integration to political reform. That’s worrisome.

But what’s really scary is the thought that the EU’s leverage to insist on democracy may be limited even within Europe. If more far-right politicians come to power, that leverage will be more necessary than ever.

(Corrects reference to Jaroslaw Kaczynski's status in governing party in second paragraph, affiliation of previous government in fourth and Prime Minister Viktor Orban's title in 14th.)

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Max Berley at mberley@bloomberg.net