After Brexit and Grexit, Brussels to deal with Poloust

Jaroslaw Kaczynski (on the left), at the European Parliament in Strasbourg, in one of his very rare visits to EU institutions. 31/03/2004. Copyright: © Communaut√©s europ√©ennes 2004 – EP.

After Grexit and Brexit that have both been haunting the European Union for quite some time, and will continue doing so in the foreseeable future, Brussels seems obliged to ponder Poloust that is kicking Poland out. The country is steadily sliding to rightwing coercion, under the leadership of Jaroslaw Kaczynski, a rampant populist, authoritarian and extreme Eurosceptic politician, President of the governing Law and Justice party (PiS). This party won an absolute majority in the legislative on the 25 October 2015 general election, getting 37.6% of the vote. Its President is the identical twin brother of the late Polish President Lech Kaczynski, who was elected in 2005 and died on 10 April 2010 in an air crash accident in Parada Równości, while on official business.

Since Lech beat Doland Tusk in the Presidential election of September 2005, the twins have been haunting Polish and European politics. Even before that, Lech as Mayor of Warsaw had showed his authoritarian extreme right wing inclination by banning the famous Warsaw gay pride parade, the Parada Równości. Instead, he encouraged and actually helped organize the “Parade of Normality”. The latter show was prepared by right wing youth organizations, some with close to fascist ideology.

Authoritarian practice

In the steps of his brother, Jaroslaw, the surviving twin, after PiS came first in the 2015 legislative election, placed all state media under the direct control of his government. The sitting President of Poland Andrzej Duda, having being elected under the banner of PiS, signed the relevant Parliamentary legislation into law in early January 2016. Under the new rules, the senior journalists of state radio and television are appointed and sacked at will by the minister of Finance and not any more by the National Broadcasting Council.

This is a large body representing all Parliamentary parties and the main civil society organizations. The next day the new law was published in the government gazette, the directors of the state media resigned in protest. The change was criticized by the major European political parties, journalist unions and civic society organizations.

Targeting the independent courts

Now, Jaroslaw wants to do the same with the Polish Constitutional Tribunal, the top court of the country. His obvious target is to be able to replace the judges at will. The judges must be prevented from overruling as anti-constitutional other authoritarian and undemocratic legislation produced by the PiS controlled Parliament. This eventuality will put the court system of Poland, the third pillar of the democratic governance, under the power of the executive (the government). To be noted, Jaroslaw Kaczyński retains the title of President of PiS, having appointed as Prime Minister his faithful follower Beata Szydło.

The issue has shaken Brussels, because the EU is based on the basic democratic principle of the Separation of Powers. The legislative, the executive and the court system operate in parallel and independently, acting as checks and controls of each other. This is the essence of the western democratic system, as developed during the past two hundred and fifty years after the French Revolution of 1789. Any discrepancy of this rule is unacceptable, in any version of the democratic governance system. For example, the Western democracies currently accuse Russia’s Vladimir Putin and Venezuela’s Nicolas Maduro of placing the legislative and the judiciary under their executive government, with the end result being a one man rule, close to totalitarian dictatorship.

Direct threat to democracy

Last week, the President of the European Commission, Jean-Claude Juncker said: “The Commission is determined to defend the rule of law in all our Member States as a fundamental principle on which our European Union is built. An independent judiciary is an essential precondition for membership in our Union. The EU can therefore not accept a system which allows dismissing judges at will. Independent courts are the basis of mutual trust between our Member States and our judicial systems. If the Polish government goes ahead with undermining the independence of the judiciary and the rule of law in Poland, we will have no other choice than to trigger Article 7.”

Under Article 7 of the European Treaty “the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons. The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State”.

Freezing Poland’s EU membership

Under the EU Treaty, ‘the suspension of the voting rights of a member state’ and ‘the suspension of the rights of natural and legal persons’ are the gravest punishment the Union can inflict on a member state. It’s impossible to throw out a member state without it asking for that, as it happened with Britain and came close to that with Greece. However, a member state without voting rights and its natural and legal persons also being deprived of their rights are as good as being ousted from the Union. Legally, though, this member state will still be obliged to continue paying regularly its contribution to the EU budget. Actually, it’s the freezing of the membership of a member state, and this is what Brussels is now preparing for Poland.

Brussels can’t do less

For obvious reasons, EU Council President, Donald Tusk, Prime Minister of Poland until 2014, followed suit after Juncker. Tusk, while in Warsaw, said “There is a question mark over Poland‘s European future today”. Then he added “I do understand emotions of Poles who are concerned about courts, or Poland’s future in the EU.” The EU Council President was in Warsaw to testify about the 2010 air accident which claimed the life of Lech Kaczynski and 96 other Polish military and political dignitaries. For months now the Polish government has been trying to implicate Tusk in that case. It also tried without success to block Tusk’s reelection in the EU Council Presidency. However, in the relevant vote during the Valletta Summit of the 29 EU leaders, the Polish PM Beata Szydło was characteristically isolated. Not even the regular companion of Poland, the Hungarian PM Viktor Orban, backed Szydło.

The complete isolation of Warsaw in the EU Council makes the threat of freezing the country’s EU membership a real eventuality. This is what Article 7 explicitly states, if Jaroslaw Kaczyński accomplishes his plan to appoint and dismiss the judges of the Polish Constitutional Court at will. However, Andrzej Duda, the President of Poland, pressed by the public outcry in the country, last week said he will veto the draft law, which is designed to subject the supreme Court to the control of the government and the ruling party. It’s not clear though if the President of Poland is able or willing to overrun legislation voted in Parliament with increased majority.

In conclusion, if Kaczyński continues defying the founding principles of the European Union, Brussels would have no other alternative than to freeze Poland’s membership. In such a case, the European Union will find itself in dire straits having to, at the same time, confront the Brexit tribulations, straighten out the always edgy Greece and deal with Donald Trump’s twists.

 

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