In Poland, U.S. Should Emphasize Link Between Rule of Law, Civil Society, Security

Over the weekend, tens of thousands turned out in Warsaw to protest the Polish government's recently-instituted policies that are hampering the work of the constitutional court and threatening the country's system of checks and balances. The protestors included two former presidents--leftist Aleksander Kwasniewski and centrist Bronislaw Komorowski--who sought to remind the Polish public of the importance of the freedom and democracy gained on June 4th 1989, in an election that peacefully ousted communist rule.

The demonstration was one in a series organized by the Committee for the Defense of Democracy (KOD), which began in January when the government's policies began to take effect. KOD's main concern is that under a new law, the "system of checks and balances is undermined," says KOD's International Coordinator, Katarzyna Morton. "The new law on the Constitutional Tribunal that was passed by the current government has paralyzed its work."

Polish civil society, including KOD, have also expressed concern over another new law that consolidates the government's power over the media, a draft law that would allow police to shut down public protest at any time, and the apparent rise in hate crime since the new government took power. One KOD supporter noted that the government's actions put Poland at risk for "Russian influences," meaning bigotry and xenophobia. Said Morton, "We want to create ... a sense of community, a way of being Polish that isn't based on hate."

KOD has proposed its own draft law to reverse the paralysis afflicting the legal system and to once again empower the Constitutional Tribunal. The proposal closely tracks the Venice Commission recommendations provided to Poland in March. More than one hundred thousand signatures were gathered in support of KOD's draft, but it has not been introduced.

In the meantime, the European Commission has formalized its own concerns. It adopted a Rule of Law Opinion last week, the latest step in its evaluation of Poland's compliance with the basic legal framework requirements of membership in the European Union. The opinion cited as problems the process of appointment of judges to the Constitutional Tribunal, the functioning of the Tribunal, and its ability to effectively review other laws. The amendments to the law on the Constitutional Tribunal restrict the court's ability to review recently passed legislation in a way that allows the government to operate without oversight.

The European Union initially delayed issuing the opinion in light of indications that reform might be forthcoming. The Law and Justice Party leader Jaroslaw Kaczynski informally proposed that he would be willing to publish the Constitutional Tribunal's opinion in a case challenging his government's amendments to the law regarding the Tribunal. The opinion states that the amendments are unconstitutional. The Tribunal's opinion, issued on March 9, has been prevented from going into effect by the Prime Minister's refusal to publish it, as required by law. The result has been confusion in the legal system, where some local courts have indicated they will follow the opinion as if it were published, while others refuse to follow it unless it is published. Kaczynski indicated that even if the decision were published, he still would not consider it binding. And while Kaczynski and Prime Minister Beata Szydlo last week made several references to reforms they might propose to the European Union, no reform proposals have been introduced.

Publication of the European Commission opinion means that Poland must respond with concrete proposals and actions. If its response is unsatisfactory, the European Union could initiate the Article 7 procedure, which essentially calls for a formal hearing on Poland's compliance with rule of law. If successful, the procedure could result in sanctions against Poland, including suspension of Poland's voting rights in the E.U. But a finding of a "serious and persistent breach of the rule of law" would have to be unanimous, and Hungary has voiced its intent to support the Polish Government.

In adopting the opinion, European Commission Vice President Frans Timmermans emphasized the importance of maintaining shared values within the E.U., and that the "rule of law is one of the foundations of the European Union." He took to Twitter to stress that the "business" of the Commission is "preserving the rule of law, in line with the Treaties." He recognized the importance of civil society in maintaining these checks and balances, and while meeting with KOD while in Warsaw, indicated that the European Commission could increase financing for civil society groups.

Timmermans and the European Union should hold steady in their support for civil society and the rule of law. The E.U. should keep up pressure on Poland to reform policies that threaten these foundations, such as the law hampering the Constitutional Tribunal, the proposed law that would allow law enforcement to prohibit peaceful protest at any time, and a draft anti-terrorism law that would make all foreigners potential targets of surveillance and suspicion. These measures threaten the very stability and security that Poland seeks to develop through its partnerships with the European Union and the United States.

The United States should support the E.U. in its fight to maintain rule of law and human rights standards. President Obama this week announced his intent to attend the NATO Summit in Warsaw on July 8-9 and to meet with government officials there. He should consider conditioning any face-to-face meetings with Polish officials on whether the government has made progress on its rule of law promises. American officials in Warsaw should also point out to their Polish allies the risks that recent legislative proposals present to the very thing Poland seeks to shore up at the NATO Summit: its own security.

These rule of law and human rights threats have already had an economic impact: Standard and Poor downgraded Poland's credit rating, and recently Deputy Prime Minister Mateusz Morawiecki noted that the situation in the country is dampening the interest of foreign investors. If Poland seeks U.S. and NATO support for the safety of its nation, the Polish government must do its part not to threaten that security.

The United States should use the NATO Summit as an opportunity to remind Polish officials of the links between security, economy, and fundamental rights, and in doing so stand firm on its own ideals.