It was once quipped to me that you can tell a lot about the state of a country by the effusiveness of its name ─ compare the ‘Federal Republic of Germany’ with the dictatorial ‘German Democratic Republic’, or the ‘Republic of Korea’ with the autocratic, dynastical ‘Democratic People’s Republic of Korea’. The same might be said of the new governing party of Poland, Law and Justice (Prawo i Sprawiedliwość, or PiS) which, fooling no one with its branding, has made it its mission to trample the rule of law and any conventional concept of justice underfoot.
The triumph of Law and Justice in both last year’s presidential and parliamentary elections should have been rather surprising. Poland is in many respects the leader of the former Soviet satellite-states; it is by far the most populous (making up 7.5% of the EU total) and notably is the only one of the six to have avoided recession throughout the prolonged economic crisis. Shielded in part by remaining outside the common currency, it remains the sixth-largest economy in the EU. If nothing else, it is a testament to the loss of confidence in the European status quo that such an overtly authoritarian party could be elected with a resounding majority in the country that gave birth to Solidarność.
Since achieving a parliamentary majority in October ─ giving it control over its second branch of government ─ Law and Justice has moved to extend its grip further. It has passed legislation allowing the government to choose the managers of state broadcasters, and has replaced several members of the constitutional court, a move it claims only rectifies the illegal appointments of the previous administration. Perhaps most concerningly of all, the new minister responsible for the nation’s security services is one Mariusz Kaminski, who earned a prison sentence last year for abuse of power in his previous role as leader of the Anti-Corruption Office. The new Law and Justice head of state, President Andrzej Duda, granted Kaminski amnesty after the party won the legislative elections. On 15 January, Standard & Poor’s downgraded Poland’s credit rating, claiming that the country’s ‘system of institutional checks and balances has been eroded significantly’.
The speed with which Law and Justice is dismantling Poland’s post-independence democratic settlement is indeed astounding, and so the swiftness of the European Commission’s response is to be welcomed. Earlier this month, Vice-President Frans Timmermans launched an unprecedented official investigation into the government’s possible violations of international law. Under Article VII of the Lisbon Treaty ─ the so-called ‘nuclear option’ that has never before been resorted to ─ the EU can confiscate a Member State’s voting rights in Brussels if it has deemed to have stepped beyond the bounds of acceptable behaviour.
The use of Article VII would certainly heat-up tensions between Member States at a time of already fraught international relations, but that is perhaps precisely what is needed: a robust sign from Brussels that national freedom must be curtailed when fundamental EU principles - pluralistic democracy, human rights and the rule of law ─ come under attack. Yet eyebrows are already being raised over the application of double standards. Viktor Orbán’s Fidesz party has held power in Hungary since 2010, and has taken the country far further along the axis of authoritarian nationalism than Law and Justice has thus far managed in Poland. The response to Fidesz from the EU institutions and other Member States has been muted, even as minorities ─ primarily Roma and LGBTI people ─ face systematic and mounting discrimination. The fact that Fidesz incongruously occupies a place in the European People’s Party (alongside Angela Merkel’s CDU, Jean-Claude Juncker’s CSV and Donald Tusk’s Civic Platform) whilst Law and Justice is a member of the alternate Alliance of European Conservatives and Reformists may explain why the EU’s Christian-democratic establishment has come down far harder on the latter than the former.
These developments in Poland and Hungary represent an alarming new tendency in European politics which, contrary to the claims of some, is far from confined to the ex-communist east. Persistent economic malaise, geopolitical instability and a crisis of confidence in European integration have proven fertile conditions for so-called ‘illiberal democracy’, in which the radical-Right becomes the standard-bearer for ordinary citizens against the liberal elite. The narrative goes that mainstream parties and the EU institutions have colluded to create a political and economic system contrary to the interests of the majority, whilst ‘we’ are the only group that can be trusted to tell the truth and brave enough to act on it. Crucial to this is the ideological influence of Putin’s Russia, which provides an alternate pole of alignment to Brusselian liberalism; Martin Schulz, President of the European Parliament, recently spoke of Law and Justice as representing another step in the ‘dangerous Putinisation of European politics’. These are no longer backward parties in an age of liberal hegemony. Rather, they have a finger on the pulse of public sentiment in a way that is incomprehensible to many in the European mainstream.
The Commission’s willingness to act against Law and Justice has brought one thing into sharp focus: the fight against the radical-Right is the same as the fight for European unity. It is the European Union, however imperfect in its present state, that represents human rights and the rule of law regardless of borders. The alternative vision propagated by Law and Justice, Fidesz and their ilk is of the demise of accountable government, the suppression of dissent and the rupture of international cooperation. Judicial tools will not be enough to stave off this dystopia, but they are at least a start. Let us hope that the Commission has found its teeth.