In July 2017, the ruling party of Poland, the Law and Justice Party (PiS), tried to concentrate powers, effectively violating constitutional order, by promoting three controversial pieces of legislation. The first one would have granted the Minister of Justice power over the members of the Supreme Court, including the possibility to replace them with party loyalists. The second legislation would have granted the parliament control over the National Council of the Judiciary, and the third legislation would have allowed the Minister of Justice to dismiss and appoint the heads of Poland’s courts.
Consolidation of power
These proposed legislations are related to a fourth legal reform which occurred in 2016. This legislation provided PiS control over the Constitutional Tribunal, Poland’s highest court. It appears that the PiS is attempting to concentrate and gain more power, effectively signifying violation of the constitutional order and the separated powers. Moreover, step by step, Poland has moved against the liberal norms and everything for which the European Union (EU) stands; Poland has increased government control of the news media, cracked down on public gatherings, and restricted the activities of non-governmental organizations.
The sequential assault on the judiciary resulted in protests throughout Poland. Under pressure from the protesters and the threat of sanctions from the EU, Polish president Andrzej Duda stated on 24 July that he will veto the first two bills and sign the third into law. PiS lawmakers claimed that these actions will improve the inefficient and corrupt court system that is controlled by judges under impunity. The reality is that these bills would give PiS full control over the judiciary, and thereby increasing the ability of the ruling party to impose restrictions on media and civil society groups. Further, manipulation of future elections would become a viable option for the ruling elite, granting them control over the Supreme Court, which has the power to revoke elections in the event of manipulation.
In light of the foregoing, PiS is trying to shape the preferences and interests of the population. Preferences and interests are not fixed; they are dynamic and depend on ethical arguments. Ethics is related to politics in two ways. First, it is a tool for the assessment of politics. For example, ethics judges politics either by how far it reaches the conditions of an ideal community, or by how far it maximizes the public good. Second, ethics is a part of policymaking. Norms are created on the basis of normative beliefs – ethical perceptions of what is good, what is bad, and what is appropriate. Once created, norms regulate particular conduct by shaping that behavior and subsequently, creating a standard – behavioral norms.
European Union intervention necessary
The failed attempt to concentrate powers in Poland should set off alarm bells in the EU. The EU must act before the ethical perceptions of the Polish population are amended in a detrimental way, as was in the case of Hungary. Ethical perceptions and arguments are capable of preserving and enhancing, recognizing and extending, and deconstructing and changing practices and normative beliefs. There are no excuses for inaction by the EU. Pleading ignorance would only be in the favor of PiS, which is trying to subvert the country’s democratic order and replace it with an electoral autocracy. If this occurs, the implications would be negative not only for the EU as a community, but also for all of Europe. The concerning question is: Will the EU let another member state reduce its order from a democratic into an authoritarian system? Another question may be: What are the consequences of this dysfunctionality for the whole of Europe?
The EU, constructed on the basis of ethical beliefs, is the main guarantor of peace in Europe. As a community and as a model for integration, the EU is ethically dependent on the self-created values of democracy, peace, equality, freedom, security, and solidarity between the member states. Respect for the rule of law and protection of human rights are the leading principles and core values of the EU. They are also based on ethical perceptions. Notwithstanding the fact that the EU has its own court system in Luxembourg, EU law is enforced by the national courts of the member states. When Polish courts enforce EU law, they act as judges of the European Union. In this vein, the assault on judicial independence in Poland is an assault on the structure of the EU as a whole. The EU must act accordingly in order to prevent subversion of the order that was created by the efforts of so many member states. Triggering a disciplinary mechanism for violations of the EU’s fundamental values is an option that must be considered very carefully, because taking for granted what has been achieved in Europe for the last few decades would be a grave mistake.