Poland’s anti-democratic drift

As Warsaw cracks down on its independent judiciary the European Union has taken a strong measure to object. The US could provide its own nudge.

Jakub Wlodek/Agencja Gazeta via Reuters
A demonstrator holds a Polish Constitution during a protest in Krakow, Poland, Dec. 8. Polish lawmakers approved an overhaul of the judiciary that gives parliament de facto control over the selection of judges in defiance of the European Union.

The European Union has drawn a line in the sand with Poland. The issue is whether that country, which, along with nine other mostly Eastern European countries, joined the EU in 2004, must abide by certain democratic values to keep its membership in good standing.

More than Poland’s future is at stake. So is the very nature of the EU. While it now largely functions as an economic and trading union, many members envision a future of deeper cooperation in areas such as foreign policy based on common, democratic values.

Article 2 of the EU’s governing treaty, for example, speaks of broad standards of behavior. “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities,” the article states. “These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”

But Poland is now moving in a troubling direction over the values of justice and rule of law. The ruling nationalistic Law and Justice party has taken steps to undermine the nation’s independent judiciary, including its Supreme Court, and bring its courts and judges under the control of the parliment, which the party controls.

“Within a period of two years, 13 laws [in Poland] have been adopted which put at serious risk the independence of the judiciary and the separation of powers in Poland,” says Frans Timmermans, the European Commission’s first vice president. “The entire structure of the justice system is affected ... thereby rendering the independence of the judiciary completely moot.”

As a result, for the first time, the EU has invoked Article 7.1 of its treaty, starting a process that could strip Poland of its voting rights as a member.

Some see Poland’s move as no more than the legitimate exercise of its sovereignty. In a visit to Warsaw earlier this month, British Prime Minister Theresa May refused to take the side of the EU (which Britain is going to leave). The United States hasn’t weighed in either. President Trump, who made a cordial visit to Poland in July, has been silent on the issue.

EU critics cite other instances in which the Union has failed to intervene in the domestic affairs of members, from the Spanish government’s handling of its Catalan separatist movement to Greece’s treatment of refugees. Austria’s government now includes a far-right party with neo-Nazi roots in its ruling coalition. No EU protest has been made.

So why pick on Poland? For one thing a corrupted judicial system means trouble for any trading bloc: The rule of law must be applied fairly and consistently for cross-border commerce to flourish. An independent judiciary plays a key role in making that happen.

Invoking Article 7.1 was among the few choices the EU had available to show displeasure with Poland’s antidemocratic drift. 

The US and Poland have developed close ties since the fall of communism more than a quarter-century ago. If it wished, Washington could easily – and most likely effectively – nudge Warsaw to not wander any farther from democratic values.

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