An Overview: The Rule of Law in Poland
By Esra Polat. Originally published on 21 January 2022 by the European Student Think Tank on its website.
(This article was published during the administration of the second cabinet of Mateusz Morawiecki. In the article, it is to that administration that appelations such as ‘the Polish government’ refer.)
Introduction
Being a member state of the European Union (EU) signifies the acceptance of the European Values, and implementation of European Values strengthens the existence of the EU. Poland became a member state of the EU in 2004 through its effort to fulfil the Copenhagen Criteria of the EU. It should be acknowledged that in spite of the fact that Poland is a post-communist state, Poland fulfilled the Copenhagen Criteria as early as possible after the application for accession to the EU. However, on the current agenda, Poland is one of the EU’s member states and has been facing some difficulties regarding the implementation of the EU Values, such as the Rule of Law. This article will assess Law and Justice (PiS) Government policies in terms of the Rule of Law to help determine what extent the PiS Government has accomplished the implementation of the Rule of Law.
The Rule of Law
In 2015, PiS led by Jarosław Kaczyński won the elections in Poland (Wesseling, 2017). It remains one of the strongest parties in Poland. It is obvious that PiS Party would prefer to negotiate in terms of its own internal values rather than mutual EU Values.
After PiS won the elections, the Constitutional Tribunal was politically captured (Wanat, 2021). It has been an intervention to the Constitutional Tribunal extrinsically. PiS consolidated control over the whole judiciary system. It seized power of the Constitutional Tribunal and rejected its rulings until it had replaced its members. Then, PiS has forced through parliament a new Supreme Court Law which mandates the forced retirement of judges (European Stability Initiative, 2021). In the last months, Poland Constitutional Tribunal has taken a decision which claims the primacy of Polish Law over the EU Law. This decision has sparked a debate on the primacy of EU Law. Member states accept the primacy of EU Law when there is a conflict between states, the EU Law will prevail (European Commission, 2021). Articles 1, 12, and 19 of Poland’s Constitutional Law Tribunal have not been compatible partially with the Treaty of the EU Law (Markey, 2021). Rule of Law is an EU Value which favours fundamental rights and permits the implementation of the EU Legislation (European Commission, 2021). Another reform by PiS Government was Media Law in 2016, it ensured an authority for the government to control important functionaries in public media companies (Wesseling, 2017).
According to the 2021 Rule of Law Report – Country Chapter Poland, when reforms have been implemented, the increasing influence of executive and legislative powers have been found, and this is not appropriate for the rule of the law (European Commission, 2021).
Another significant point is high-level corruption in Poland. In compliance with the Group of States against Corruption (GRECO) Report of the Council of Europe, the situation in Poland weakened, particularly in 2019. Amendments to the Law on Ordinary Courts, the Law on the Supreme Court, and certain other laws have a giant impact (Council of Europe, 2019). In Poland, incumbent candidate Andrzej Duda, who is backed by the ruling Law and Justice Party, was re-elected after confronting public criticism for attempting to bypass parliament and the National Electoral Commission in order to keep an all-vote-by-mail presidential election. Unconstitutional changes to the electoral law less than six months before the election, the removal of functions from the National Electoral Commission, and Covid-19 campaigning restrictions that favoured the incumbent party, which controls public broadcasting, and used xenophobic, homophobic, and antisemitic rhetoric, as well as poor management of state resources, have all been criticised (International Institute for Democracy and Electoral Assistance, 2021).
In addition, Polish media is not independent and pressure on the media does not allow them to research freely, the use of threatening legal power has deteriorated the professional atmosphere of journalists (European Commission, 2021). Nevertheless, PiS Government has a priority of raison d’Etat and does not seem to have any concerns towards the Rule of Law. PiS Government claims that Poland is an independent state apart from the EU. The usage of ‘‘union of states’’ has been affected due to this Eurosceptic perspective (Arkadiusz, 2019).
Conclusion
Poland is one of the most significant Eastern Member States of the EU. The importance of Poland is related to both its geopolitical status quo and internal affairs. PiS Government and its policies have not been found compatible with the Rule of Law. Renewed law regulation mechanisms throughout Poland’s justice system will be able to manage this process. Otherwise, there is a possibility to implement more sanctions by the European Commission.
References
Arkadiusz, M. (2019). The European Union in Political Thought and Practice of the Ruling Right Wing (2015-2019). 6th ACADEMOS Conference 2019 – International Political Science Conference (pp. 278-288). Bucharest: Filodiritto Publisher.
Council of Europe. (2019). Evaluation Report: Poland. Retrieved from https://rm.coe.int/fifth-evaluation-round-preventing-corruption-and-promoting-integrity-i/168092005c
European Commission. (2021, 07 20). 2021 Rule of Law Report – Country Chapter on the rule of law situation in Poland. Brussels: European Commission. Retrieved from European Commission: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52021SC0722&from=EN
European Commission. (2021). Rule of Law Mechanism. Retrieved from https://ec.europa.eu/info/policies/justice-and-fundamental-rights/upholding-rule-law/rule-law/rule-law-mechanism_en
European Stability Initiative. (2021). How the rule of law dies in Poland. Retrieved from https://www.esiweb.org/proposals/how-rule-law-dies-poland
International Institute for Democracy and Electoral Assistance. (2021). The Global State of Democracy. Stockholm: International Institute for Democracy and Electoral Assistance. Retrieved from https://www.idea.int/gsod/sites/default/files/2021-11/state-of-democracy-in-europe-2021.pdf
Markey, M. L. (2021, October 21). Poland’s Constitutional Tribunal on the status of EU law: The Polish government got all the answers it needed from a court it controls. Retrieved from https://europeanlawblog.eu/2021/10/21/polands-constitutional-tribunal-on-the-status-of-eu-law-the-polish-government-got-all-the-answers-it-needed-from-a-court-it-controls/
Wanat, Z. (2021, October). Poland’s ‘Russian roulette’ with the EU. Retrieved from Politico: https://www.politico.eu/article/poland-rule-of-law-judicial-system-eu-pis-jaroslaw-kaczynski/
Wesseling, D. (2017). Rising illiberalism in the EU: comparing the state of democracy in Poland and Slovakia. Comparative European Politics (POL40540), 1-10.
