A Brief on Poland – August 2017

(CC BY 4.0) fot. by Dafne Cholet

By Joanna Gos

This is a summary of the key events in Poland over the last two years which have dramatically changed the country’s position in Europe’s politics and its citizens status.

Many domestic and international observers are increasingly concerned by the recent events in Poland. In order to enable better understanding of the reasons behind the current developments, here are the highlights of what has happened.

In August 2015, Andrzej Duda, a former MEP of the leading opposition party, Law and Justice (PiS), became the president of the Republic of Poland. In his inauguration speech, he promised to be “the president of all Polish people”, “reuniting the nation instead of dividing it”. In the first months of his presidency, Andrzej Duda consistently refused to meet the then Prime Minister Ewa Kopacz, an indication of his unwillingness to co-operate with the outgoing Civic Platform government. At the same time appealed to Civic Platform (PO), the ruling party, to refrain from passing new bills prior to the upcoming general election.

In October 2015 PiS won the general election. The party gained an overall majority, but not the constitutional majority required to change the Polish Constitution through an act of parliament. At the same time, president Andrzej Duda failed to appoint five Constitutional Tribunal judges elected by the PO-led government by refusing to schedule a swearing-in ceremony. This started an ongoing – and growing – constitutional crisis, which remains unresolved two years on.

Following the formal swearing in of the new parliament, the events accelerated. President Duda pardoned Mariusz Kamiński, former chief of the Central Anti-Corruption Bureau under PiS government of 2005-2007, despite the verdict still being reviewed in the Court of Appeal and therefore not legally binding. The new government passed legislation to ‘correct’ the appointment of the five Constitutional Judges voted in by the previous government and appointed five new ones, who were selected by PiS’s newly-elected MPs. President Duda accepted the oath from the newly elected judges at 1:30am, a few mere hours after the act was validated and five days after the vote took place.

PiS brought before the Parliament a number of bills proposed by their MPs, which were voted on instantly, often in the late hours of the night. These were immediately passed through the Senate and often signed by the President within 24 hours, leaving no time for debate, public and expert consultations or for the opposition parties to propose any amendments. Using a tried and tested method of “fast track” law making, PiS has implemented numerous changes to the law and took direct actions, many of them controversial. Below is a summary of the most significant ones.

  • Amendments to the Constitutional Tribunal Act, heavily criticised and judged unlawful by many judiciary experts in Poland and abroad, including the National Council of the Judiciary, the Supreme Court, law faculties of the most respected Polish universities, crushed by the Venice Commission and a number of European experts. In December 2015 the Constitutional Court ruled new appointments and the aforementioned act unconstitutional but PM Beata Szydło refused to publish the verdicts, technically stopping it from becoming official law. Street protests outside the PM offices ensued and continue until today, with a day counter of the unpublished verdict. Also, on 13 April 2016, the European Parliament passed a resolution calling on Polish government to respect democratic principles and rule of law, and to fully implement the Venice Commission recommendation that would end the current Constitutional Tribunal crisis. The government remains unresponsive.
  • Civil Service Amendment Act of 30 December, which removed several conditions for appointing civil servants: candidates for government agencies and administration posts are no longer required to be selected through an open competition process and to be non-partisan, which threatens the continuity and neutrality of the civil service. Since then, many of senior and middle management staff have been replaced, often by candidates without the necessary qualifications.
  • Public Media Act, which assigned the control and supervision of the state-owned media, previously in the remit of the National Broadcasting Council, to the Ministry of the Treasury. Under the new, party-appointed CEO, the public TV and radio channels have since become unsophisticated propaganda tools of the government, with their coverage differing significantly from that of independent media.
  • “Snoopers’ Charter”, which gave the police unlimited access to citizens’ internet activities and the right to put their telephone communications under surveillance for 18 months at a time, without court authorisation. There is no obligation to inform the person being investigated of this fact, following the completion of the surveillance, even when no charges are brought forward.
  • Reorganisation of the post of the Prosecutor General: from 4 March 2016, the function of the Prosecutor General was merged with that of the Minister of Justice (making Poland the only country in the European Union without the separation of these two roles), granting unparalleled powers to require any prosecutor to adhere to the Minister’s instructions. On the basis of a decision of the Minister/Prosecutor General, the information on any investigation at any stage can be released to the media or to any third party (including individuals). The Minister/Prosecutor General can also obtain information by any means necessary, target and investigate individuals with little or no prior evidence of any suspected wrongdoing, and can move any case from one court to another. Moreover, the Minister of Justice cannot be accused of illegal actions or abusing his office if he proves his goodwill or that he was acting in the public interest.
  • Logging limits increase: on 25 March 2016, Jan Szyszko, the Environment Minister signed off a new plan that dramatically increase logging operations in one of Europe’s last primeval forests, the Białowieża Forest, on the border between Poland and Belarus, a home to the largest herd of European bison as well as unique birds and insects. In the new “forest management plan”, logging quotas will be increased threefold – since the reduction of the quotas in 2010 the logging industry have been lobbying for an increase. What is more, only one-third of the forest will be strictly protected and the remaining area will be “managed” by logging and human intervention. In July 2017, the European Union’s top court has ordered Poland to immediately halt large-scale logging in an ancient protected forest, after the EU’s executive commission earlier this year sued Poland at the European court of justice (ECJ) over logging in the Białowieża forest, a Unesco World Heritage site. The government has remained defiant and the logging continues.
  • New agricultural land-market legislation that severely limits trade in agricultural land. Under this law, agricultural land can only be sold to farmers, who are defined as individuals who have the right qualifications, have been a resident of the local authority in which the land is located for five years and have been running a farm during that time. Moreover, anyone purchasing agricultural land is obliged to farm it for at least 10 years and, during that time, is not permitted to sell or rent it. If the buyer fails to farm the land, a court, on request of the government Agricultural Market Agency can issue a compulsory purchase order. The only body exempt from the new rules are the religious bodies, or in reality the Catholic Church. There is a sound concern that the bill hugely restricts the right to own, sell and buy property.
  • Ongoing restrictions to women’s rights and support. Recurring proposals of near-absolute ban on abortions since April 2016 (overturned by massive street protests), a total fund withdrawal from the core network of women’s refuges that have provided shelter as well as psychological and legal aid to domestic violence survivors in 2016 and an end to prescription-free access to emergency contraception in June 2017 and being just a few examples. 
  • Pensions reform, which cut the pensions of those who worked for the broadly defined “pre-1990 secret police branches” and their widows, without considering any circumstances of their work. The changes unfairly affected many random people who were merely clerks or served in the police/army for short periods, thus undermining the rule of trust in the state.
  • Educational reform, ignoring around 1 million of signatures of the citizens who demanded a referendum on it. The “reform” reverses changes to the schooling system introduced 16 years ago, but most importantly it also changes the scope of subject material to be taught, including the removal of important literature and the introduction of a strong Pole-centric narrative in history teaching.
  • Common Courts Act which changes the principle on which the presidents of the courts will be appointed or dismissed. The Minister of Justice (being the chief prosecutor as well as the minister) will have extended authority to fast track the relegation of the presidents of the courts in situations when “the presidents have lost the trust in the eyes of the society”. This gives the minister the power to arbitrarily appoint and dismiss judges thus exercising political pressure on potentially any court case and in practice ending the courts’ impartiality.
    This was one of three laws proposed by the parliament but two (a reform of the National Council of the Judiciary and of the Supreme Court) were vetoed by the president in July 2017, following mass street protests of Poles across the globe and significant international pressure.
  • NGOs funding under full government controlPoland has been home to 100,000 NGOs since the end of communist rule in 1989. Today they run 8 percent of the country’s schools, 85 percent of homeless shelters and almost all athletic associations. Many serve as government watchdogs, demanding transparency and accountability from public authorities. Polish NGOs receive roughly 1 billion euros ($1 billion) in public funding every year, distributed via ministries and local administrations. The government led by the conservative Law and Justice Party (PiS) wants to centralize funding through a National Center for Civil Society, subject directly to Prime Minister Beata Szydło. Also, the public media has been targeting NGOs to portray them as unreliable, “foreign agents” and unnecessary in the country. There are worries that the media attacks could be a prelude to harassment by governmental administration, reminiscent of the methods used in pre-1989 Poland or today’s Russia.

The European Union, whilst welcoming the presidential veto on recent judiciary reforms proposal, keeps a close watch on the events in Polish politics. The conservative government has introduced a wave of changes, many considered harmful to the state and beneficial only to the party members and some directly in obvious conflict with the country’s constitution. There is a common expectation on both sides of the political spectrum that this summer is only a short break in these rapid changes. Both domestic and international attention and pressure remain crucial in curtailing the most extreme of them.

*European Commission for Democracy Through Law (Venice Commission), Opinion on Amendments to the Act of 25 June 2015 on the Constitutional Tribunal of Poland (Opinion no. 833/2015, CDL-AD(2016)001) adopted by the Venice Commission at its 106 Plenary Session (Venice, 11-12 March 2016).

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