Poland’s political crisis is escalating at breakneck speed. At the opening of Parliament in November, the Law and Justice party used its new majority to assault the foundations of the country’s system of checks and balances. This clear and present danger provoked an extraordinary response from the European Commission last week. For the first time in history, it formally began investigating whether the new government’s actions were putting core European values at risk — opening up a path that conceivably could lead to the suspension of the country’s voting rights in the European Union.
The government responded with a charm offensive in Brussels. Both Prime Minister Beata Szydlo and President Andrzej Duda are trying to persuade the West that nothing extraordinary is happening. This skillful PR campaign increases the risk that the EU’s investigation will only result in a meaningless gesture. At a time when the continent is facing existential crises on multiple fronts — from the threat of Brexit to the rise of terrorism, from the crisis in the common currency to the massive influx of refugees — the EU’s continuing indifference would increase the sense that the continent’s commitment to democracy is coming apart.
This is where the United States comes in. Only Washington has the power to remedy the structural deficiency in EU law that is undermining Europe’s response.
In its brief time in office, the Law and Justice government has seized control of the public media, politicised independent institutions, and fired a wide range of civil service professionals. But its worst offence has been an attack on the constitutional court.
Although Law and Justice has a narrow parliamentary majority, it lacks the supermajority needed for formal amendments to the country’s constitution. So right after the election, it took swift action to pack the court and transform it into a rubber stamp for future legislation endangering fundamental rights or rigging national elections.
This assault on the court entirely justifies the European Commission’s decision to launch its “rule of law” investigation to consider whether Poland is endangering “liberty, democracy, [and] respect for human rights and fundamental freedoms.”
If further inquiry supports such a finding, Poland could be formally cautioned about its activities so long as four-fifths of the 28 member states on the European Council, as well as two-thirds of the European Parliament, support the commission’s judgment.
Aggressive politicking from Germany and other major powers could achieve these supermajorities. But this strategy will inevitably lead Law and Justice to frame the conflict as yet another episode in the centuries-long German effort to crush the Polish people. In his formal response to Gunther Oettinger, a European Union commissioner from Germany, Poland’s justice minister invoked his grandfather, who bravely fought “German supervision” as a Second World War resistance fighter. Two pro-government Warsaw weeklies are already sporting covers that portray Angela Merkel as Hitler and as a Prussian participant in Poland’s 18th-century partition.
The United States does not suffer this historical burden. Quite the contrary: For generations, it has been a refuge for Polish freedom fighters of various stripes, from Casimir Pulaski during the American Revolution to Jan Karski during the Second World War. Given America’s leading role in the transatlantic military alliance, it is in a position to provide crucial reinforcement for the European initiative.
This July, Warsaw is scheduled to host a special Nato summit. This is not a regular meeting of cabinet defense ministers, but an extraordinary session at which the heads of all member states redefine the alliance’s key strategic missions. Law and Justice sees this high-profile event as a chance to show its domestic backers that it remains a respected player on the international stage, even as it destroys constitutional government at home. Poland has concrete diplomatic goals it hopes to achieve as well: The government will be campaigning for the permanent deployment of Nato troops in the country as a tripwire against the threat of future Russian aggression.
The Obama administration should act now to preempt this gambit. It should make it plain that there will be no summit in Warsaw — or at least not one the United States will attend — so long as Poland’s commitment to constitutional democracy remains under investigation by the commission.
The Polish government, if it wishes to avoid becoming an international pariah, still has an off-ramp at its disposal. Some basic maths is required to understand the current threat — and the potential solution. The constitutional court has 15 members, each serving nine-year terms. Seven judges are scheduled to serve through 2019, when new parliamentary elections will be required.
As a consequence, if Law and Justice hopes to run roughshod over the constitution’s guarantees during the current parliamentary term, it will have to appoint committed advocates to all eight remaining positions on the court.
One legal problem stands in the way. Three of these seats opened up in early November, a few days before the inauguration of the new Parliament. This permitted the outgoing, center-right government to fill the slots. Nevertheless, the country’s president, Andrzej Duda, a Law and Justice ally, refused to swear in these justices, despite the clear commands of the constitution. While Duda stalled, his party rammed replacement nominations through Parliament. Duda swiftly swore in these replacements, putting Law and Justice well on its way to an 8-7 majority.
But in a series of decisions over the last six weeks, the constitutional court has made it clear that the original appointments of the November justices remain valid. The court opened a door to compromise, however, by suggesting that the three Law and Justice replacement judges could take their seats later when sitting justices complete their terms over the next 18 months. This statesmanlike solution would allow the new government to gain a substantial, but not overwhelming, presence on the court during the current electoral cycle. If Duda accepts this compromise, he should be permitted to preside over the upcoming Nato summit and redeem Poland’s standing within Europe.
Otherwise, this is the moment for US President Barack Obama to use his bully pulpit and explain that Nato is more than a mere military alliance. It is grounded instead on a transatlantic commitment to the defense of democracy and the rule of law. He should give America’s full support to the commission’s investigation of the Polish government’s conduct amid the greatest crisis in EU history. He should make it plain that, unless it solves its problems in a good-faith fashion, he will not be attending the Warsaw summit.
— Foreign Policy/New York Times News Service
Bruce Ackerman is professor of law and political science at Yale University and Maciej Kisilowski is a professor at Central European University.
