Poland in danger of reverting as PiS party reinterprets democracy

A highlight of being The Irish Times's Berlin correspondent is being able to hop aboard a train and head over the border to report from Poland.

This beautiful country – with a fascinating history, wonderful people and great food – was a welcome consolation prize for Irish soccer fans in 2012. After the disappointments on the pitch during the European Championships, the Poland they experienced – a vibrant central European country of 38 million people – was a long way from the persistent clichés in Ireland of Poland as a grey and dismal ex-communist backwater.

On recent trips across the border, my unease has grown that the progressive Poland I’ve reported on in recent years is reverting to the clichéd Poland of Irish imaginations.

Last October, Polish voters ousted a two-term liberal-conservative government that was roundly despised for an arrogant, technocratic obsession with power and little else.

Hoping for something better, voters handed a parliamentary majority to the main opposition party, the national conservative Law and Justice (Prawo i Sprawiedliwosc or PiS) party.

With a two-pronged strategy – nationalist value conservative and left-wing social policy – it appealed to all sectors of society in securing an absolute majority in parliament. Combined with the newly appointed PiS president months earlier, the new administration got straight to work.

The first opportunity was handed to it by the outgoing Civic Platform (PO) government which, sensing its days were numbered, made five judicial appointments to Poland’s powerful constitutional tribunal – two of which were later found illegal.

Instead of appointing the other three and two new candidates, President Andrzej Duda swore in five new judges – a move condemned as illegal by experts, including Duda's old constitutional law professor in Krakow.

Shrugging off that criticism, PiS passed a new bill changing how the tribunal operates. PiS said the new bill – like its judicial appointments – was necessary to rebalance the court and end undue judicial interference in legislation. It accused the tribunal of putting itself above the country’s parliament.

Spying on citizens

But constitutional judges dismissed the bill as an unconstitutional and unprecedented attack on their political independence. “PiS wants to govern with pure, naked power,” said one justice, who asked not to be named. “Their understanding of democracy is the legitimacy to govern without any control, because they were handed a popular mandate in the election.”

Despite backing for the tribunal from other courts and the independent ombudsman, the Polish government has refused to publish the ruling striking down the new tribunal bill. Its circular logic: the tribunal’s ruling has no legal basis because judges dismissed the bill on the basis of the constitution – and not the new bill itself.

With no judicial oversight, the PiS government is now hard at work. It has folded the independent prosecutor general’s office into the justice ministry; a modified surveillance bill allows domestic intelligence to spy on domestic communications without concrete suspicion and with only retrospective court oversight. An upcoming anti-terrorism bill, meanwhile, will allow spying on all communications – including contents of correspondence by non-Polish citizens in Poland.

"The government is trying to implement a radical democracy," said Katarzyna Szymielewicz of Panoptykon, an anti-surveillance NGO in Warsaw. "It is using its majority to dismantle legal safeguards that protect citizens from abuses of power."

This is the position that unites PiS critics in Poland – and is shared by the Council of Europe, the continent's highest human rights body. Its Venice Commission warned that constitutional tribunal rule changes endangered the rule of law and Polish democracy.

Last week, in The Irish Times, Poland's foreign minister Witold Waszczykowski dismissed this recommendation of the Venice Commission as "just an opinion of legal experts".

Critical Warsaw watchers fear Poland is drifting towards a Hungary-style authoritarian state, as led by its prime minister Viktor Orbán. This week the European Commission told Warsaw to resolve the constitutional standoff by Monday or face the next stage of a Brussels investigation into whether Poland has broken EU law.

On Friday the ruling PiS party passed a resolution in parliament calling on the government to defend Polish sovereignty from Brussels interference.

Any final decision requires unanimous backing of EU leaders to be binding, however, unlikely given Warsaw's new friends in Budapest. Many in Poland have pinned their final hopes on Washington; that PiS cannot shrug off a critical intervention from the State Department.

Support and protests

Despite the controversy, opinion polls show PiS support is steady. But steady, too, are sizeable street protests. A march organised by the Committee for the Defence of Democracy (KOD) attracted over 200,000 people onto Warsaw’s streets two weeks ago. The civil rights group says it respects PiS’s democratic mandate of 37.6 per cent support in the last October’s election. But it argues that if you factor in the turnout of just 51 per cent, PiS’s far-reaching reforms are disproportionate to its effective popular mandate of 18 per cent.

For KOD co-founder Mateusz Kijowski, the main problem is clear: "The legislative and executive is being driven by one man, in a political party HQ."

That man is PiS co-founder and leader Jaroslaw Kaczynski, who has no formal role in government. PiS ministers insist there is no interference from Kaczynski, who they describe as a figurehead and patriot, determined to correct Poland's flawed transition to democracy in 1989 and subsequent takeover by a liberal elite.

But Kaczynski’s critics are concerned that Poland’s de facto leader is an uncontrollable figure struggling with two traumatic personal experiences: his twin brother’s sudden death in 2010 and a lingering resentment of rivals who had more prominent roles in the Solidarity revolution.

"Jaroslaw is very tough and very smart, but he is also a paranoiac," said Jan Litynski, a former Solidarity activist, adviser to Poland's last president and long-time acquaintance of the PiS leader. "He believes that only his vision of Poland is good. Everyone who opposes his vision is a danger to Poland and thus a traitor."

Since coming to power PiS has presented a new patriotic vision to “reclaim” the country’s history; critics fear an ultra-nationalist agenda marrying Kaczynski’s black-and-white world view with many Poles’ deep-seated martyr complex.

The touchstone of this patriotic Polish narrative is the "Smolensk catastrophe" of April 2010, the plane crash in Russia that claimed 96 lives, including that of president Lech Kaczynski and his wife, senior officials, MPs and clergy.

Traitors and conformists

Everyone here agrees this was modern Poland’s greatest tragedy. But Jaroslaw Kaczynski, the surviving twin, has never accepted the official investigation verdict – that the crash was caused by a combination of poor weather and pilot error. Now in power, his party has reopened a probe into a cause of the crash – although senior party figures insist they already know it was caused by a Russian bomb.

Critics see in this a politicised hunt for a conspiracy where none exists, an example of official Polish policy being driven by one man’s personal obsessions.

PiS critics argue that Poland’s ruling party has, in power, adopted methods that are neither lawful nor just. PiS says law and justice are legal norms it has been handed a mandate to redefine – in line with the growing populist zeitgeist across Europe.

The saddest moment of my recent trips to Warsaw came late one night as a friend in the public sector described the creeping changes to his working life. Those who question PiS’s methods are denounced as traitors, he said, while others keep their heads down. Meanwhile the careerists, to get ahead, make mental compromises and throw in their lot with the new regime.

This is the Poland Czeslaw Milosz warned of in his powerful 1953 denunciation of Stalinism, The Captive Mind. "When people are divided into 'loyalists' and 'criminals'," he said, "a premium is placed on every type of conformist, coward, and hireling."

Polish voters made their choice last October. And it is for them to decide whether what they have now is what they thought they voted for then. For now, though, Poland’s captive minds are back.