The Polish Politics Blog

Analysis of the contemporary Polish political scene

Month: January, 2016

How will the EU’s ‘rule of law’ investigation affect Polish politics?

Poland’s right-wing government found itself on the defensive following the European Commission’s unprecedented decision to initiate an investigation under the EU’s ‘rule of law’ mechanism. An ongoing row with the Commission will be debilitating for the government which will have to spend valuable time and political capital defending its reputation in the European arena. However, the ruling party has shown that it can fight its corner and the Commission’s intervention could prove a double-edged sword for Poland’s opposition.

Law and Justice on the back-foot

The Polish government – led, since last October’s parliamentary election, by the right-wing Law and Justice (PiS) party – found itself on the back-foot earlier this month following the European Commission’s surprising decision to initiate a preliminary investigation of the country under the EU’s so-called ‘rule of law’ monitoring mechanism. In 2014, the Union adopted the instrument, intended to address ‘systemic’ breaches of the rule of law and EU principles in any member state. It was meant to complement the so-called ‘nuclear option’ provision in Article 7 of the EU treaties that allows the European Council to impose sanctions on countries found to be in serious and persistent breach of fundamental EU values; in the worst-case scenario, suspending their voting rights. So far the Commission has agreed to the first step under the framework which involves undertaking a preliminary investigation of whether or not there are clear indications of a ‘systemic threat to the rule of law’ and initiating a dialogue with the member state concerned.

This unprecedented move came in response to concerns about recent actions by the Law and Justice government in relation to the membership and functioning of Poland’s constitutional tribunal, a powerful body that rules on the constitutionality of laws, and a new media law passed by the Polish parliament earlier this month. The government’s critics accuse it of undermining the fundamentals of Polish democracy and the rule of law by: ignoring the tribunal’s rulings on the constitutiality of a law determining the body’s membership and trying to curb its power to place checks on the government, as well as placing public broadcasting under direct government control. These actions, they argue, represent attempts to interfere in the independence of the judiciary and put Law and Justice party loyalists in charge of state TV and radio.

Mrs Szydło’s counter-offensive

Law and Justice tried to regain the initiative by undertaking a (somewhat belated) public relations offensive aimed at improving Poland’s image within the EU institutions; re-assuring European leaders of the government’s broadly pro-EU attitude and that it was committed to upholding the rule of law and European values. The government’s supporters defended its actions as necessary measures to restore pluralism and balance to state institutions that they say had been colonised by supporters of, and milieu associated with, the centrist Civic Platform (PO) grouping, the previous governing party. More broadly, they argued that many Polish institutions have been expropriated by an extremely well-entrenched, and often deeply corrupt, post-communist elite and claimed that opposition to the government was being orchestrated by political forces unable to come to terms with their electoral defeat and vested interests hostile to its plans to radically reconstruct the state and introduce sweeping socio-economic reforms.

The centrepiece of Law and Justice’s counter-offensive was (what even the government’s critics admitted was) an effective intervention by prime minister Beata Szydło in a European Parliament (EP) plenary debate on the political situation in Poland held in the week after the Commission’s decision was announced. Although Mrs Szydło’s critics accused her of being evasive and misleading in responding to the Commission’s concerns, in a calm and conciliatory performance she tried to de-escalate the dispute: insisting that the Polish government was open to dialogue and would co-operate to patiently answer all of the criticisms. However, Mrs Szydło did not make any substantial concessions arguing that the constitutional tribunal dispute was an internal matter of a political rather than legal nature for Poland to solve on its own, and that the government’s changes to public broadcasting conformed to European standards. Earlier, she tried to undercut the Commission’s arguments by organising consultations with opposition leaders, for the first time since the new government took office last November, to find a compromise solution to the constitutional tribunal deadlock (unsuccessfully, as it turned out). The EP debate was also preceded by a visit to Brussels by Law and Justice-backed President Andrzej Duda who tried to lower the emotional temperature of the debate by meeting, and holding a (generally good natured) joint press conference, with EU Council President and former Civic Platform prime minister Donald Tusk.

Law and Justice was helped greatly by the weak performance in the EP debate of Civic Platform, now the main opposition grouping. The Polish opposition enjoys close links with the EU political establishment and Western opinion forming media, many of whom share their dislike of Law and Justice, so it was assumed that the EP debate would be favourable territory for the party. Indeed, during party leadership election hustings with local activists, Civic Platform’s new leader Grzegorz Schetyna (who was elected unopposed at the end of this month) identified utilising the European arena as a key element of the opposition’s anti-government strategy. However, the party was divided over which tactics to pursue in the EP debate: anxious to capitalise on the government’s difficulties, but fearful of leaving itself open to criticism that it was weakening the country’s international standing by using a European forum to air domestic political grievances. In the event, except for one brief intervention from a Civic Platform MEP, the party effectively sat out the debate and ended up with the worst of both worlds: apparently supporting the Commission intervention but only half-heartedly.

The EU intervention could drag on

In fact, the Commission has no powers to impose sanctions on Poland as the ‘rule of law’ framework only constitutes a political dialogue without any legally binding recommendations. These can only arise if the Commission proposes them to the EU Council under Article 7 where they require unanimity in one of the three stages of voting; and the Hungarian government has already made it clear that it will veto any attempt to introduce such measures. However, Mrs Szydło’s effective EP performance – and, more broadly, Law and Justice’s public relations counter-offensive – have not ended the conflict between the Commission and Poland. While the government is keen to move political debate back on to ‘normal’ socio-economic issues, where Law and Justice feels it is more in tune with public opinion than its liberal and centrist opponents, the Commission’s ‘rule of law’ investigation process could be a lengthy one, potentially forcing the Polish ruling party to spend valuable time and political capital responding to criticisms and defending its position in the European and international arena.

The Commission has said that it will return to the issue in March after the Venice Commission, an advisory body of the Council of Europe (a non-EU organisation which aims to uphold democracy and the rule of law), issues an opinion on Poland’s constitutional tribunal reforms. If the matter is not resolved by then, the Commission can issue a ‘rule of law recommendation’ giving Poland a specific time period to address the problems it has identified. If it still considers that the problem has not been dealt with to its satisfaction, the Commission can then recommend the invocation of Article 7. At the same time, the constitutional tribunal crisis looks set to rumble on with most of Poland’s opposition parties rejecting a government proposal to resolve the crisis by replacing the tribunal’s membership with eight judges nominated by the opposition and seven by the ruling party. It could also re-surface as a major issue of contention next month when the tribunal expects to rule on the constitutionality of amendments to the law determining its functioning passed by the Polish parliament at the end of December; which the government argues has already come into force and the tribunal has no power to review.

How will Poles react?

At this stage, it is difficult to tell how Poles will react to any further EU interventions. On the one hand, many of them are quite sensitive to international opinion, and understandably wary of anything that might lead to the country losing influence which could make it more difficult for Poland to promote its interests within the EU. Not only do Poles still support their country’s EU membership overwhelmingly, but one of Law and Justice’s opponents’ most effective criticisms of the previous 2005-7 party-led administration was that it had isolated Poland within EU institutions by alienating the main European powers, particularly Germany, and created the perception of the country as an unreliable and unstable EU member. This charge was strongly rejected by Law and Justice supporters who, for their part, argued that it was the previous Civic Platform-led government that failed to advance Poland’s interests effectively within the EU in spite of locating the country squarely within the so-called ‘European mainstream’ and enjoying extremely close relations with Berlin.

Moreover, notwithstanding the potential threat that isolation within the EU might pose to Poland’s tangible, material interests, at a more abstract level many Poles may feel particularly uneasy about the charge that the Law and Justice government is undermining so-called European values. This is because one of the key motivations for Poles voting overwhelmingly to join the EU in a 2003 accession referendum, and main reasons why levels of popular support for the country’s EU membership have remained so high, was the idea that joining the Union represented a historical and civilisational choice: a symbolic re-uniting of Poland with a Western international community of shared values that they had always considered themselves to be part of culturally and spiritually.

However, although most Poles remain broadly pro-EU, they also value their national independence and are likely to react instinctively against the idea of foreign interference in their domestic affairs. Moreover, as this month’s events have shown, Law and Justice will fight its corner in the European arena, so a heavy-handed EU intervention could simply allow the party to present itself as the defender of Polish sovereignty against unwarranted meddling by arrogant Brussels officials. Moreover, the idea of Polish EU membership as representing a ‘civilisational choice’ has been undermined in recent years by an increasing sense of cultural distinctiveness that many Poles feel towards Western Europe. This has been particularly evident in the sphere of moral-cultural values where Polish attachment to traditional morality and national identity stands in stark contrast to the socially liberal, cosmopolitan consensus that predominates among West European political and cultural elites.

This issue has surfaced recently in the contrasting reactions of Poles (and other Central Europeans) and West European political elites (although not necessarily their publics) to the European migration crisis. Poles are keen to avoid the kind of cultural and security problems that many of them feel West European countries have experienced through admitting large numbers of Muslim migrants who are seen as difficult to assimilate and embedding violent extremists within their communities. Indeed, one Law and Justice response to the Commission’s ‘rule of law’ investigation was that the EU should be concerning itself more with addressing the fall-out from the migration crisis than the political situation in Poland. In other words, it not as obvious as it once was – and, arguably, becoming less so – that the ‘civilizational choices’ that are being made by political and cultural elites in other parts of the continent are the same ones that Poles want to make. The ‘European card’ is, therefore, one that the government’s opponents need to play with great caution and could easily backfire on them.

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What are the prospects for Poland’s opposition?

Poland’s previous ruling party suffered a crushing defeat in last October’s parliamentary election. But the polarisation of politics during the first few weeks of the new right-wing administration have integrated the opposition and allowed it to mobilise support around the claim that the government is undermining democracy; a charge its supporters deny vigorously. However, the opposition remains divided and it is questionable how effective a challenge the liberal newcomer that has emerged as the main anti-government grouping can mount.

Polarisation galvanises the opposition

After eight years in office Poland’s previous ruling centrist Civic Platform (PO) grouping, led by the then prime minister Ewa Kopacz, suffered a crushing defeat in the last October’s parliamentary election at the hands of the right-wing Law and Justice (PiS) party. Civic Platform saw its vote share fall by 15.1% to 24.1% and number of seats held in the 460-member Sejm, the more powerful lower chamber of the Polish parliament, decline from 207 to only 138. Earlier, in May’s presidential election Civic Platform-backed incumbent and odds-on favourite Bronisław Komorowski lost to Law and Justice challenger Andrzej Duda. Much of the widespread disillusionment with the political establishment and strong prevailing mood that it was time for change was directed against Civic Platform. Many voters saw the party as representing an out-of-touch and complacent elite disconnected from the concerns of ordinary people and tainted by scandals. The most notorious of these was the so-called ‘tape affair’ which drew popular anger at the cynicism when discussing state matters and crude language revealed in secret recordings of senior government ministers and public figures dining in high-end Warsaw restaurants at the taxpayers’ expense. Moreover, Civic Platform’s previously highly successful strategy of mobilising the ‘politics of fear’ – which involved positioning itself as the best guarantor of stability against the allegedly confrontational and authoritarian style of politics that many voters (rightly or wrongly) associated with Law and Justice – was not effective this time.

Immediately after its parliamentary election defeat, Civic Platform was plunged into a leadership contest but Mrs Kopacz was forced to withdraw from the race after being defeated unexpectedly by regional party boss Sławomir Neumann in the election for the grouping’s parliamentary caucus chair. Her main leadership challenger was Grzegorz Schetyna, a former party deputy leader who was marginalised by Mrs Kopacz’s predecessor Donald Tusk (who resigned as prime minister at the end of 2014 to become EU Council President) but retained a significant following among the party grassroots and started to re-build his influence after she brought him back into the government as foreign minister. Most of Mrs Kopacz’s backers (and, informally, Mr Tusk) switched their support to former defence minister Tomasz Siemoniak but he also pulled out at the end of December a few days before the launch of the party-wide members ballot, clearing the way for Mr Schetyna to run unopposed.

However, the rapid polarisation of the political scene during the first few weeks of the new government, which prompted the most serious crisis in Poland for many years, integrated the opposition and gave it a renewed sense of energy and purpose. Initially, the main focus was a bitter struggle over the membership and functioning of the constitutional tribunal, a powerful body that rules on the constitutionality of Polish laws, but in January attention shifted to a controversial new media law. The opposition was extremely successful in promoting its narrative that these government actions represented attempts to interfere in the independence of the judiciary and place public broadcasting under direct government control, thereby undermining the fundamentals of Polish democracy. This provided government opponents with a highly emotive, touchstone issue around which they could attack the Law and Justice administration on several fronts. As a consequence, thousands of Poles participated in demonstrations organised by the Committee for the Defence of Democracy (KOD), a new opposition-backed civic movement, and its narrative was picked up by large sections of the EU political establishment and Western opinion-forming media, with whom the government’s opponents enjoy strong links and who share their dislike of Law and Justice. For their part, the government’s supporters denied these charges vigorously and defended its actions as necessary measures to restore pluralism and balance to state institutions that they say had been colonised by supporters of, and milieu associated with, the previous governing party. More broadly, Law and Justice supporters argue that many Polish institutions have been expropriated by an extremely well-entrenched, and often deeply corrupt, post-communist elite and claim that opposition to the government is being orchestrated by vested interests hostile to its plans to radically reconstruct the state and introduce sweeping socio-economic reforms.

The rise of Mr Petru

However, while the political crisis has mobilised – and, to some degree, united – the opposition, it is unclear who will emerge as its leading force. Civic Platform struggled to respond effectively, being absorbed in an internal leadership contest at a crucial point when the crisis was starting to gather pace; exemplified by its tactically disastrous decision to walk out of, rather than participate in, a key Sejm debate on the constitutional tribunal. At the same time, a significant challenger for the leadership of the opposition emerged in the form of the ‘Modern’ (Nowoczesna) grouping, a new party formed last May by liberal economist Ryszard Petru. Mr Petru’s party won 7.6% of the vote and 28 seats in October’s election to emerge as the fourth largest grouping in the new Sejm. ‘Modern’ picked up support among the younger, well-educated and better-off urban voters and entrepreneurs – at one time, Civic Platform’s core electorate – by advocating the economically liberal policies once associated with the former ruling party. Many of these voters felt that Civic Platform had drifted away from its free market roots and turned to Mr Petru as a more credible liberal alternative.

Mr Petru’s apparent economic competence was of crucial importance to his party’s core electorate, but it was the political crisis that provided ‘Modern’ with an opportunity to broaden its image from being simply a technocratic pro-business party. While Mr Petru is not a hugely charismatic figure, he is a reasonably effective, and rapidly improving, parliamentary and media performer and his small parliamentary caucus quickly found its feet, promoting its most articulate and competent members. Moreover, although Mr Petru was active on the political scene for several years, his party’s greatest asset was its ‘newness’, which stood in sharp contrast to the more compromised figures associated with Civic Platform. The fact that Mr Petru’s grouping did not have the political ballast of having to defend eight years in office also made its harsh criticisms of the Law and Justice government appear more authentic and credible. The polarisation of the political scene, therefore, worked in Mr Petru’s favour allowing his party to steal Civic Platform’s mantle of being a repository for the broad swathes of voters opposed to Law and Justice. Moreover, the party positioned itself cleverly so that its criticisms of the previous administration were sufficiently nuanced that they did not alienate those who once saw Civic Platform as the most effective defender of the status quo; indeed, some of the former ruling party’s erstwhile backers in the liberal-left media already appear to have shifted their sympathies towards ‘Modern’. Consequently, in a very short space of time Mr Petru’s party pulled ahead of Civic Platform in the opinion polls and is currently running neck-and-neck with (and, in some surveys, even slightly ahead of) Law and Justice.

In fact, ‘Modern’ remains an unknown quantity and it is questionable how effective a challenge it can mount once the novelty of its ‘newness’ begins to wear off. The party lacks both grassroots organisational structures and experienced, battle-hardened politicians in its small and relatively youthful parliamentary caucus. Moreover, given that experience suggests that the social base for a purely liberal party in Poland is relatively small, its biggest weakness lies in the narrowness of its programmatic appeal. Civic Platform’s relatively weak ideological underpinnings gave the party much greater reach across the political spectrum and helped it to garner the support of a very broad coalition of voters united mainly by their dislike of Law and Justice. Initially, it had attempted to profile itself as representing a modernising form of pro-market, right-wing liberalism focusing on the economy, and subsequently also incorporated a moderate form of social conservatism. However, particularly after it took office in 2007, Civic Platform adopted a deliberate strategy of diluting its ideological profile and projecting itself as a somewhat amorphous centrist ‘catch-all’ party, albeit with an increasingly state interventionist and socially liberal tilt; what its critics dubbed a ‘post-political’ party of power.

Mr Petru’s party clearly benefited from the high level of polarisation that has characterised the Polish political scene in the last couple of months, because this has meant that the criteria by which the public evaluate politicians have been somewhat different to those that might apply in calmer, more ‘normal’ times. This has both distracted attention from the relative narrowness of its programmatic appeal and helped Mr Petru’s party to neutralise this weakness by presenting itself as the ‘defender of democracy’ rather than simply a liberal grouping focused primarily on the economy. The party’s leap in support was, therefore, the product of a very specific political conjuncture. However, this could change rapidly if the situation stabilises and Poland sees a return to more ‘normal’ patterns of politics with voters starting to once again evaluate Mr Petru’s party through the prism of its relatively unpopular liberal socio-economic policies. Mr Petru’s political opponents are also sure to remind voters of his links with the large banking corporations which, for many Poles, symbolise the hated political-business nexus (often referred to disparagingly as ‘banksters’) that motivated many of them to vote for anti-establishment parties like Law and Justice.

Can Civic Platform recover?

It is too early to write Civic Platform off. With the leadership question resolved, the party is finally starting to wake up to the threat posed by Mr Petru and retains many advantages over its liberal challenger. These include: a large number of experienced parliamentarians, greater financial assets, more developed grassroots organisation, large numbers of local councillors, and control of 15 out of 16 of Poland’s regional authorities, which play a key role in distributing EU funds and are a major source of local party patronage. Mr Schetyna is an experienced political operator and good organiser who will work hard to restore a sense of discipline and purpose to the party and, in the short-term at least, it is likely to rally around him. However, he also lacks charisma and dynamism and, although he has not been in the party’s inner circle for a number of years, is associated in the public mind with the previous, discredited Civic Platform administration. Mr Petru’s party could still go the way of a number of recent Polish challenger parties that enjoyed early surges of support but eventually collapsed. But Mr Schetyna will have to move very quickly and regain the initiative if he is to see off Mr Petru’s challenge and prevent Civic Platform from descending into a fatal downward spiral.