As Poland opens its doors to Ukrainian refugees, European politicians baselessly vote to punish it for supposed violations of the ‘rule of law.’
As Poland opens its doors to Ukrainian refugees, European politicians baselessly vote to punish it for supposed violations of the ‘rule of law.’
P oland-bashing is undoubtedly among the European Parliament’s favorite preoccupations. Over the last years, this chamber has passed about 40 resolutions criticizing the Polish government. The most recent was particularly pernicious. It demanded that the EU punish Poland financially for the government’s alleged encroachment against the rule of law. The parliament called for what its vice president, German MEP Katarina Barley, had once approvingly referred to as starving Poland financially (finanziell aushungern). The resolution was all the more disgraceful in that the call for Aushungerung came at the moment when 1.5 million refugees from Ukraine have come to Poland and more are still expected.
This rather odd action has two mutually exclusive explanations: Either the European institutions are obsessed with Poland and overpowered by the spirit of vindictiveness towards the Polish government; or the Polish government has been seriously and shamelessly violating the rule of law, which required a swift and decisive action on the part of the European institutions. I would argue that the first is true; the second — false.
Let me start with some general information. The legal foundations of the European Union are the treaties (the last of which was the 2007 Lisbon Treaty). Nowhere in those treaties is the rule of law defined. The concept is mentioned in Article 2 as one of the European “values,” together with human dignity, freedom, democracy, equality, and human rights. It should also be added that questions relating to a country’s own judicial system, as well as to its constitution and functioning, remain the sole competencies of the Member States.
For many years, “the rule of law” and other “European values” were left untouched as belonging to the realm of general declarations and not to legal or political procedures. This changed when the Hungarian conservative party Fidesz won the elections in 2010.
Immediately Hungary, and since 2015 Poland (after the Law and Justice victory), became the targets of increasingly aggressive moves by the European institutions. The reason for these continuous attacks was simple: For a long time, the European Union has been in the hands of the political Left, which has managed to make its agenda the official agenda of the European institutions and treats all conservative movements and governments with unmitigated hostility. Once identified as a conservative alternative to the Left, the European People’s Party (an alliance of mainstream parties such as Germany’s CDU, Spain’s Popular Party, etc.) has practically capitulated and abandoned all conservative tenets. Today, what we have in Europe is a de facto political and ideological monopoly.
The European Parliament is a good illustration of this. The mainstream political groups — the liberals, socialists, and erstwhile conservatives from the EPP, plus the greens and the communists — have allied and set up a tyranny of the majority. They distribute the leading positions among themselves and outvote any attempt to restrict their power. The two conservative groups that are in the minority (about one-fourth of the chamber) — the European Conservatives and Reformists and the Identity and Democracy are surrounded by a cordon sanitaire. In the case of the ECR, this cordon is selective; in the case of the ID — complete. A Flemish colleague of mine, born and raised in Burkina Faso, once said that the way the political opposition is treated in the European Parliament reminded her of the parliamentary practices in Burkina Faso and Zimbabwe. And there is a lot of truth in this statement.
The mainstream European agenda is simple: a centralized European state, green energy with zero CO2 emission, and one compulsory ideology that includes political correctness, the whole package of gender ideology (preferred pronouns, gender as a social construct, the multitude of genders, etc.), same-sex marriage, abortion, and suchlike. Some items in this program, particularly those relating to family and moral issues, belong to the sole competency of the nation-states, but this does not make any difference. Because the majority decides about something — and the majority extends to all European institutions, including the European Court of Justice — there is no way one can stymie their decision. Suffice it to say that not once has the European Court of Justice ruled against the European institutions for violating Article 5, which forbids those institutions to go beyond the competencies explicitly conferred upon them.
One should not wonder, therefore, why in such a political and ideological environment, a conservative government — being against most if not the entire Left agenda — is not a partner, an ally, an interesting alternative, or a constituent of European pluralism, but rather an enemy that has to be marginalized, silenced, and intimidated. The attacks on the conservative Polish government began before this government came into being, even before the elections that led to its formation. The EP debates do not resemble the debate in any genuine sense of the word but are more like Orwellian hate sessions, during which the deputies express their political fury and make the wildest possible accusations.
The hardest and most convenient stick to beat the conservative governments is the rule of law, and this is the case for several reasons. Since it is nowhere specified in the treaties, it can mean anything, and since in the EU, it is the mainstream that decides about everything, it also decides what is and what is not a breach of the rule of law. Besides, in making this accusation, those on the left can hide its aggressive partisanship behind a lofty and seemingly non-political notion: After all, they are only defending what is generally acknowledged as the core principle of any good political order.
The reform of Poland’s judiciary system was long overdue. Contrary to the earlier expectations, the Polish judges did not cleanse themselves after the demise of the Communist regime and did not get rid of those colleagues who had supported its repressive measures. In fact, there was a profound continuity, especially since the old guard had a powerful influence on the new generations of lawyers. Many judges did not conceal their partisan loyalties, participated in political rallies, and openly took sides.
The framers of the judiciary system after the collapse of the Communist system made another mistake. They gave the judges the competency to make political decisions — that is, to decide about the composition and the structure of the courts and the national council for the judiciary (the body that selects the lawyers to be appointed as judges by Poland’s president). Nowhere in Europe, and to my knowledge, in the entire Western world, did the judges have such political power. Usually, it is the political bodies that decide about the composition of courts. The independence of judges does not depend on who appoints them but how independent they are after being appointed.
The reform the government proposed was not different from what one can find in other European countries. The political factor in the judiciary is quite low in Poland compared with other member states; for instance, Germany, where the political factor is the highest in Europe. But Poland’s argument was rejected. One could learn, also from the ruling of the European Court of Human Rights, that the institutional solutions accepted in the countries that have “more mature legal culture” are unacceptable in the countries in which legal culture is less mature.
Let me repeat: The reaction to the Polish reforms is a consequence of the political situation in Europe. The argument about “more mature legal culture” — translated into simple political terms — means that a judge appointed by the mainstream government is independent, impartial, and politically neutral regardless of the procedure. In contrast, a judge appointed by the conservative government is always a political lackey. This amounts to a more general rule, not unknown in our political history: All member states are equal in the European Union, but some are more equal than others.