The heat stays on: Poland in constitutional turmoil

Threatened by terrorism and bewilderedly searching for solutions to the refugee crisis it is not a given that Poland’s constitutional crisis should continue to make headlines in the EU. However, the focus has persisted, in realization that Poland plays such a central role in Europe that to allow the country to go the way of Hungary would be devastating to the European project. Since the European Commission decided to evoke the Rule of Law Mechanism and start a probe of the situation, months have passed. In an overconfident move Polish Foreign Minister Witold Waszczykowski invited the Council of Europe’s Venice Commission to explore the legality of the new amendments to the Polish Constitutional Court which critics say hamper the independence and effectiveness of the judiciary. On 11 March the Venice Commission published its verdict on the situation in Poland, following extensive visits, studies and interviews with Polish counterparts. The opinion of the Venice Commission was damning for the ruling Law and Justice Party in Poland. The Venice Commission found that the changes, which have filled the court with Law and Justice nominees, made it more difficult to dismiss laws and weakened the court’s autonomy in deciding on the order in which they treat cases, proved detrimental to constitutional justice in Poland. At a debate in Brussels the Friedrich Naumann Foundation for Freedom asked panelists from Polish politics and civil society the question “Which way forward, Poland?” While the current situation was described as grim, optimism permeated the discussion with hopes that Poland would correct its course and restore the independence of the judiciary. In an interview with FNF the Polish liberal MP Kamila Gasiuk-Pihowicz eloquently summarized the situation in Poland in the following way: “Firstly, the political direction chosen by the Law and Justice Party in Poland has no mandate from the Polish electorate. Secondly, international pressure on the Polish government matters to us as we fight to restore the independence of our country’s judiciary”.

Kamila Gasiuk-Pihowicz discusses the state of Polish politics

International pressure forced government dialogue

Although Poland is no longer dominating headlines in European countries as it had at the height of the constitutional crisis during Christmas 2015, pressure from European Institutions and other EU member states has been upheld, even if the critique originally uttered by German EU Commissioner Oettinger has been toned down. The pressure has however helped move the Polish government into talks with the Opposition and European counterparts. The Polish Prime Minister and President have both visited European Institutions to defend the changes, and the liberal party Nowoczesna has been invited to discuss the constitutional changes with the Law and Justice Government. Dialogue, rather than outright confrontation, is the way to resolve the Polish constitutional crisis, and international pressure has helped bring the differing parties together. Nonetheless, it is crucial not to bestow too much faith and goodwill on the infamous Law and Justice Chieftain Jarosław Kaczyński. It is not only the freedom of the judiciary which Kaczyński has attempted to curtail and the constitutional amendments are likely part of a larger campaign by Law and Justice to dominate the main national political institutions and ensure that Polish media and civil society is weakened to a point where they will not effectively be a force to snag victory from Law and Justice in Poland’s next parliamentary elections.

Venice Commission: The European arbiter

The Venice Commission’s opinion on the unconstitutionality of the Polish Government’s dealings has reinforced the international focus on Poland. However, in the meantime the Law and Justice Government has passed several additional draconian measures, including a surveillance law which greatly supersedes Poland’s previous ability to spy on its own citizens. This and other concerns with the government’s decision to curtail the independence of state-owned media means there is no shortage of topics with which to keep the limelight on Law and Justice. Both the civil society protest platform Committee for the Defence of Democracy (KOD) and the liberal party Nowoczesna has taken the Venice Commission’s concerns into account when arguing against the Government’s policies. They have also, in the spirit of dialogue, offered ways to correct the situation in Poland to meet the recommendations laid out by the Venice Commission. They are doing the same in the case of the surveillance law and to restore greater independence to public media. In fact, by being able to rely on independent, external expert opinions they are keeping Poles alert to the failings of the Law and Justice Party.

Which way forward, Poland?

Continuous and unrelenting international pressure, via multiple channels, has forced the Law and Justice Party into dialogue with the opposition and civil society. Nevertheless, the outcomes of these talks are so far few and far between. While the solution to the Polish constitutional debacle will come from within Poland, the continued European and international focus on the topic remains an important aid for the Polish opposition. They are currently facing hurdles on multiple fronts as Kaczyński attempts to weaken the media and civil society. However, the crisis has also given the new liberal party Nowoczesna a chance to lead the opposition in its attempts to restore judiciary independence to Poland. Poland has some challenging years ahead, but it is important to remember that Law and Justice did not win an outright majority in last year’s parliamentary election. Furthermore, Law and Justice’s victory was not based on a promise to undo Poland’s hard-won constitutional checks and balances, but to improve the economic situation of Poland’s struggling lower middle class. Nowoczesna’s economic platform promises to unleash Poland’s economic potential and if the party is able to balance its role as the de facto leader of the Opposition by standing up to Law and Justice to fight for rule of law in Poland, but also highlighting their own impressive plan for Poland’s economic future the next Polish Parliamentary elections in 2019 might see a liberal party coming out as the country’s strongest political force. This would be the surest way to return to Poland’s original course of constitutional sobriety including standards for an independent judiciary.

Read Polish Nowoczesna Member of Parliament Kamila Gasiuk-Pihowicz’s plea for the international community to maintain pressure on the Polish government to reverse its course here.

Read what other Nowoczesna Members of Parliament had to say in a recent interview on the status quo of the constitutional crisis here.


Håvard Sandvik is European Affairs Manager at the Friedrich Naumann Foundation for Freedom in Brussels.

Frauke Ohler is an intern at the Friedrich Naumann Foundation for Freedom in Brussels.