Poland’s government, elected in 2015 with 38 percent of the vote, appears to be on a collision course with the European Union. It has begun to pass bills that usurp the independence of the courts, giving the ruling party the ability to influence cases, punish its opponents, and stay in power. The sudden moves have led tens of thousands of Poles to take to the streets in protest. They have also shocked EU leaders, who never imagined a member state would violate a core principle of the Union. In fact, the EU has few tools to punish Poland.
One of the EU’s great triumphs is the spread of the idea that people should be treated equally before the law. This principle has helped Europe end a history of war rooted on the notion that ethnicity, religion, or class allows one group to be superior to the law while denying rights to others. In a twist on that theme, Poland’s governing Law and Justice party claims a democratic victory alone justifies an end to judicial independence, not to mention an end to the checks and balances built into a separation of powers. The nationalist party has also tried to clip media freedom and abortion rights. Those efforts have been mostly thwarted by mass outcry.
The street protests to save judicial independence, however, may not work. The EU is now seen as the best interlocutor. It has an option to curb funding for Poland. If the EU wants to stand up for rule of law in global affairs, as well as entice new members such as Ukraine to join, it must take a hard line with Poland, the EU’s sixth most populous member state.
Another possible corrective may be investors. Getting rid of judicial independence creates legal uncertainty for businesses and opens a door for cronyism and corruption. Poland’s economy could see a slowdown, forcing the public to renew its faith in the courts. Then the country could restore its reputation as a model reformer among the former Soviet bloc states admitted to the EU.
The government’s argument that any political party elected to office can dictate to the courts clearly runs counter to the Continent’s embrace of universal values, which originate in a Christian understanding of equality before God. Individual rights are not subject to democratic whims. Courts serve a grander purpose than politics to decide fairness, based on values embedded in a constitution.