As Poles shift right, democracy runs scarce

While the Law and Justice party insists that local disputes are best settled at home, Polish opposition and fearful individuals have been reaching out to international forums for support.

Joanna Kulesza
25 April 2016


Jarosław Kaczyński, leader of the ruling Law and Justice party in Poland's Sejm, March 2016Poland has become yet another European country to take the risky route of a nationalist policy, much to the despair of its international partners, including but not limited to the European Commission, Council of Europe and the United States.

The rapid shift in the former EU poster boy’s policy is a direct consequence of the 2015 parliamentary elections, when the Law and Justice party gathered the majority in the Polish Sejm and Senate, just to complete their winning streak, with their presidential candidate running a successful campaign a few months earlier. News media all over the world, from New York Times and Politico through Die Zeit and Der Spiegel all the way to El Pais, just to name a few, hit a highly alarming tone in their coverage of democracy shifts in Poland. While the ruling party members blame this lasting criticism on the local opposition, allegedly unsettled in their grief over electoral loss, the fast-paced march towards absolute rule over state media and the judiciary now speaks for itself.

The media grab

It was the shift in the Polish state-funded media that gathered most international attention in recent months. Around 2 am on December 29, when Poles were getting ready for their New Year’s Eve parties, the parliament adopted a series of significant amendments to national laws that, taken together, shifted the fragile balance of national media.

Hitherto, it had been the constitutionally-founded Radio and Television Council that appointed the heads of national news media companies: “Polish Television” and “Polish Radio”. This supervisory body, originally created to ensure freedom of expression and media plurality, was never free from political controversy, with all of its 5 members nominated and elected by politicians in power (two by the Sejm, one by the Senate and two by the President). Yet its supervisory function of state-funded media was one of the constitutional checks and balances ensuring plurality. Following the latest change of the radio and television act, the Council lost its competence to appoint media heads, with the Minister of Treasury quickly exercising his newly appointed prerogative and calling upon Law and Justice hardliners to run Polish Television and Polish Radio, ensuring positive media coverage of the “good change” policy.

Some popular journalists were promptly made redundant, while others followed “voluntarily”, not being able to adjust to the new company hard line. The December shift proved to be only the first step in the new media policy that the government has been promising, one aimed at ensuring that all media in Poland are “national”.

The exact plans for making local media “national”, pledged in secrecy, are soon to emerge as another media law amendment. Likely changes include a limit for foreign ownership in news media broadcasting in the country, possibly an additional charge on commercial media, largely held by foreign investors, a budgetary income to support state-funded ones. While the media law amendment thus far has been not much more than another powergrab, ensuring propaganda for the “good change” policy, the most significant amendments are yet to come, likely in early May 2016.

Regarding the relatively strong position of commercial news media in Poland, television and radio power shifts performed thus far seem to be less of a threat to human rights than those introduced into the police law act, ensuring comprehensive, long-lasting police surveillance of individuals, with no judicial supervision.

The privacy grab

The data retention controversy that incited disputes in many EU countries in 2009 never really reached Poland. With no public protest and little awareness of its significance, the Polish parliament easily managed to introduce data retention laws as part of the national telecommunication act. It was only in 2014, following the ECJ decision on the nullity of the directive, that the Polish Constitutional Tribunal found the persuasive surveillance of all individuals as per the provisions of the Polish telecommunications law a grave violation of the constitutional right to privacy and declared them null and void.

The parliament and the government had no choice but to promptly amend the act, yet the results of the election entrusted this change to the opposition. And so on Jan. 15, 2016 a new law was introduced, giving law enforcement, the secret services and the police authorities the right to quickly access individuals’ “Internet data”, a term that covers information on all online activity, including sent and received messages, websites logs, login data, contact details and personal settings, as well as phone billings and geolocation data. No court decision is needed for this and such surveillance can last as long as 18 months. There is no mention on how the deletion or anonymisation of such data should be performed.

As in all the controversial national laws extending the limits of state surveillance, be it in the US or Hungary, no actual evidence of illegal activity is required for the surveillance to be instigated, the simple involvement of an individual “with” an activity that is under investigation is enough. The new surveillance regulations have already met with criticism from the CoE Commissioner for Human Rights and the request of an opinion from the Venice Commission, regarding the Polish surveillance regulations. While there are numerous opinions coming from Polish NGOs and human rights bodies, including the Polish Ombudsman, the likelihood of any amendment to this new law, aiming at making it compliant with international human rights standards, seems highly unlikely.

The judiciary grab

The most significant breach of the democratic rule of law that has taken place in Poland recently dealt with the appointment of new judges to the Constitutional Tribunal done with disregard to the provisions of national law. The Law and Justice party decided that the judges appointed by the previous parliament should be replaced by new ones, although such an interpretation could not be fully confirmed by the enforceable law.

During yet another late-night session the Polish parliament, with the majority of the Law and Justice party-appointed new judges of the Constitutional Tribunal, effectively caused a stalemate in the operation of this body that is crucial to democracy. The subsequent refusal of the prime minister Szydło to publish the decisions of the Constitutional Tribunal on the illegality of such an appointment incited a local crisis – a decision that has been presented by the Tribunal cannot be enforced unless published. All those prompt and vital actions by the Law and Justice party have enhanced the sense of growing legal instability in Poland, with the situation of both the local media and judiciary forever more uncertain.

What can be done – the international community reacts

While the Law and Justice party insists that local disputes are best settled at home, Polish opposition and fearful individuals have been reaching out to international forums for support. As an EU member Poland has been under strong pressure from the European Comission, while the question of mass surveillance laws is to be reviewed by the CoE Venice Commission this month.

The most recent reaction from the European community on the changes in Poland deemed threatening to democracy, is the April 13, 2016 European Parliament resolution calling upon the authorities to e.g. publish and follow the Constitutional tribunal rulings. With the majority of 513 EPMs the European Parliament has called upon Poland to end the "effective paralysis" of the Constitutional Tribunal as it results in a serious threat to democracy.

The MEPs expressed their "serious concern” about the “paralysis of the Constitutional Tribunal” posing a “danger to democracy, human rights and the rule of law". Although non-binding, the resolution can be perceived as yet another strong indication of the need for Polish authorities to change their non-compromising policies. The likelihood of the Law and Justice party following the suggestions of the international community is low – one gets the impression that they attempt to play the criticism as an indication of the weight their strong policy holds. The historical reference to Poland as the “martyr among nations”, standing for traditional, national values, one that is deeply rooted in the national perception of self and that has always resonated well with local right wing supporters, will most likely be used to reassure followers and discredit the discontents. Even an EU sanction put on Poland, although unlikely, might change the minds of the new country leaders.

At least since the fall of the iron curtain, following i.e. the 1980s Solidarity movement, Poland has had a reputation for democratic leadership. Its rapid economic development and eagerness to catch up with leading EU economies in the last two decades has made the country a leader among the new EU members. The Law and Justice government not only disregards those achievements, but clearly claims Polish compliance with EU rules a sign of weakness in itself.

All the decisions referred to above, globally perceived as threatening democracy, are introduced to the local audience as a sign of strength, one that Poland finally demonstrates in the international arena. At the same time, the anti-government demonstrations in the country have never been as strong as this since the 1980s – thousands are protesting against the government in Warsaw and other cities. Should the international community not be able to change the minds of country leaders, Poles are likely to make amends themselves – after all they have considerable experience in putting down non-democratic governments that act in violation of basic human rights. One it left to hope that this will also be the case in 2016.

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