It has hardly avoided anyone that there has been an outright political outrage in much of Europe and the United States over the Polish Sejm’s vote to change the constitution that allows the Sejm to replace judges if a parliamentary 3/5 majority can be reached. Many left wing and liberal commentators argue that this means that Poland is on it’s way to become a dictatorship. Well, yes and no.
One can certainly have doubts about the conservative government under Kaczyński especially from a liberal or socialistic perspective, for instance regarding minorities. The LGBT movement is understandably not overly fond of catholic values. The situation in Poland is however far more complicated that what can be seen at first glance from an international perspective. In a well functioning parliamentary democracy it seems obvious that there should be a watertight division between the law passing and the law upholding functions of society. However that is not always the case. For instance, in the United States, according to the American Constitution, appointments to the Supreme Court is made by the President after which candidates must be approved by the Senate after passing hearings made by the Senate Judiciary Committee. As such the judicial system is still politicized to a large extent. The same goes for Sweden.
In Poland there has been a situation where the judicial system, to a large degree inherited from the Communist past, has appointed it’s own successors, which has cemented a system of nepotism. In some cases this has also led to a situation where judges that disapproves of laws passed by the Sejm have simply ignored them. Thus the cohesion between the law passing and law upholding parts of the State has faltered. Many Poles that sympathize with Kaczyński also feel that the country’s communist past has not been dealt with and that the judicial system is a system within the system and as such a remnant of the past. Apart from that there is also a political divide between those that are more liberal and pro-EU and thus aligned with for instance Donald Tusk and Radosław Sikorski that for understandable reasons have few interests in a conservative government creating a Poland in their image. In this lies the dilemma, how to create cohesion while still trying to maintain water tight divisions between the judicial system and the parliamentary powers without democracy being impaired?
As a comparison one can see to Sweden where we now face a major political crisis where the top leadership at the Swedish Transport Agency has broken several laws, most probably with the consent of the current government, allowing for a large amount of sensitive information potentially reaching foreign hands when outsourcing it’s IT-services. Regardless if this was done out of sheer incompetence or not it is still damaging for our nation and most certainly so for the credibility of the Government and the Social Democratic Party. The head of the Transport Agency, Maria Ågren, was fired, albeit under completely different pretenses, and given less than a months pay in fine after which she was reassigned to the Enterprise Department with a raise. Since Ågren agreed to pay her fine she can’t be prosecuted further. Ministerial rule is however strictly forbidden while politicians can’t be held legally accountable for their decisions. Sweden also lacks a Constitution Court. This leads to a situation where no one takes any real responsibility or can be held truly accountable. Higher positions are also appointed in accordance with party allegiance rather than actual competence. Such examples can be found in Anna Johansson, the minister of Infrastructure and thus responsible for the Transport Agency although not in the legal or operative sense. Her appointment was probably due to her father being Göran Johansson, former strong man of the Social democrats in Gothenburg, rather than due to her actual competence or experience. The later lacking quite completely. Another appointment of dubious character was that of Dan Eliasson , the current National Police Cheif. While not having a professional background within the Police Force, apart from a politically appointed senior position at the Security Police for some time, while also having a very sordid reputation from previous positions, where he among other things broke the Principle of the public by erasing for him implicating information when he was head of the Insurance Agency this still didn’t prevent him from becoming the new National Police Cheif due his political loyalties. He is extremely unpopular among people on the force due to his highly politicized leadership and the Swedish Police is now in a state of acute crisis, a situation that the Minister of Interior Anders Ygeman publicly refused to acknowledge. Other people within the Swedish authorities also fail to realize that they are not politicians elected by the citizens and thus have to follow decisions made by our Parliament without question. One such example is Peter Thorsell, head of the Firearms Department at the Swedish Police. He was adjudicated by his former colleague and personal friend Lars Hänninger, nowadays General Counsel at the Ministry of Justice, to take part as an expert in the negotiations in Brussels regarding EU’s Firearms Directive where both failed to abide to the decision made by the Swedish Parliament. Where there any repercussions for these two gentlemen? None whatsoever. One of Thorsell’s acolytes, Barbro Jönsson, head of the legal administration at the Police Department in Gothenburg, was held in contempt regarding Publicity Principle twice in the same same matter. However there were only criticisms filed against her and she is still employed, with her career going strong even after saying: “-I am the law!” on public radio. She is however quite useful for Thorsell’s personal crusade against law abiding ownership of firearms in Sweden, a crusade in which his national position, that lacks support in legal and parliamentary sense, still is supported by Mr Eliasson who in turn enjoys political protection by the government. At the same time the Swedish Cultural Department presented a suggestion where only media subjected by political approvement should receive financial support for distribution. There has also been a draft to the Council of Legislation in order supposedly safeguard individuals from journalism that encourages to an anti feminist, racial and sexual orientation stigma. However where do you draw the line between hate speech and freedom of speech? Isn’t there a potential danger of this legislation being used to silence those that are rightfully critical of the public narrative? This particular question is of great importance in today’s Sweden, for instance given the large number of sexual crimes being committed, something that many have linked to the large immigration of men with a different cultural attitude towards women than found among most Swedish men. Sounds somewhat like the political climate found in Poland doesn’t it?
It is not that one might wonder if the constitutional change in Poland thus is making people over here in Sweden as well as elsewhere nervous? The conservative government in Hungary under Viktor Orbán, one of the other pariahs of the EU, came to the aid of Kaczyński when Brussels threatened to expel Poland from the European Council by saying that he would vetoing this decision. However the Polish President Andzrej Duda prevented this matter by his own veto, saying that the new laws needed completion. Thus the constitutional change must be seen from a greater picture, not only as a matter of domestic Polish politics. The conservative Eastern European governments are at odds with the predominantly socialistic, neoliberal and social-liberal narrative found in Brussels and most of Western Europe, spanning from immigration to the limitation of Brussels influence over domestic affairs. Given that Donald Tusk is a central figure in Brussels as well as a warm proponent of the seemingly increasingly federalist tendencies of the EU it is hardly surprising that Warsaw and Brussels are going up head to head against each other. Conservatism is on the rise, and that threatens the cohesion of Europe, at least from an EU perspective, that is dominated by a liberal and socialistic paradigm.
I concur, in the best of all possible worlds to quote Candide, that it gives somewhat of a bad taste in one’s mouth that a politicization of the judicial system appears to be desirable. However, what can be done in a society where there is a discrepancy between the law upholding and the law passing systems? In Sweden’s case there are several necessary steps that must be taken, we must reintroduce public liability and introduce a Constitution Court. Politicians and civil servants that fail to acknowledge that they must abide to parliamentary decisions and laws must be held accountable according to the same principals as the ordinary citizenry. Meritocracy must further be implemented rather than nepotism. Only then can public trust in the political system be upheld. In the case of Poland things seem more simple, yet at the same time more complicated from a democratic perspective. Those that claim that Poland is on it’s way to become a full fledged conservative dictatorship must remember that there must be a parliamentary 3/5 majority in order to replace a judge. If the opposition wins an election and can gather the same majority it can do the same thing however. So the difference really isn’t all that too great from the United States regarding appointment, to be remembered is that judges of the Supreme Court if necessary can also be removed from office through impeachment. The Polish system would however open up for an increasingly politicized legal system, and such potentially replacing one system of nepotism with another, apart from a system lacking continuity and water tight divisions between law upholding and law passing systems. Although, from my personal perspective I find the steps I deem necessary for Sweden far less impeding, rather the contrary, than the steps attempted by the Polish Sejm for safeguarding democratic parliamentary rule while also ensuring state management and a judicial system in cohesion with the law. However for those that are political opponents to the rise of European conservatism and right wing populism there is of course also a narrative to portray the Sejm’s vote in the worst possible manner, even more so than PiS and Kaczyński can do through this political action. There is a risk for a new Polish political deluge, one that has potential spillover effects in the eyes of Brussels. Thus domestic Polish politics are of interest also from an international perspective. We have not heard the last in this matter..