Gradual erosion of the Polish democratic norms

10 PM, November 18th: A loud It’s a War! reverberates in the heart of Warsaw. Banners with eight asterisks stretch over the crossing between Powstancow Square and Warecka Street. A group of 5 plainclothes officers enters the crowd, using truncheons to beat the protesters. Pepper spray is floating in the air when two of the provocateurs begin tossing flares on the street. Where just a moment ago was a crowd, now there is a woman - with a face covered in milk - screaming in pain: I cannot breathe. While paramedics are gathering around her, the people are running back and forth carrying physiological saline. There is no way out - the police trapped people in a kettle, cordoning the entire area. No one is allowed to go home without presenting their ID.

It was just another evening in Warsaw, where, for four weeks, the opposition to the currently ruling Law and Justice Party (PiS) has been staging street demonstrations every day. Although triggered by a recent anti-abortion law, the protests are thought to encompass a myriad of breaches of law, ranging from the overhaul of the judicial system, to restrictions on women’s reproductive rights, and the persecution of minorities. To corner the opposition, PiS uses the rhetoric deepening the social schism, exposing an incomplete post-Soviet transition and grave abuse of human rights.

Since 1989, Poland has been regarded as a role model for other Warsaw Pact members that transformed into autocratic regimes. With its new democratic constitution and representative institutions, Poland set an example in developing a relationship between pro-European forces and the Catholic Church that cleared the Polish path for democratization. In exchange, the Clergymen maintained a tight grip over issues such as women’s reproductive rights. Consequently, Poland introduced one of the most repressive abortion policies in Europe. As the Soviet rule produced an authoritarian type of personality unable to think independently, the conservative attitude towards abortion policy has been preserved to this very day.

The idea of protesting lodged itself in the public consciousness when in 2016 a ban on abortions in almost all circumstances was proposed as a bill. It led to the formation of the All-Poland Women’s Strike (OSK), a women’s rights social movement calling for a large-scale protest. Polish women went out on the streets of big cities wearing black, ultimately inducing the parliament to defer the bill. Although, since then, the issue of women’s reproductive rights remained a prompt for many to take to the streets, no regulation passed by the government engendered such social discontent Poland has seen since the court’s ruling on October 22nd. The latest court’s decision ruled the abortions for fetal defects unconstitutional. As 97.6 percent of abortions were performed last year in Poland due to that circumstance, termination of pregnancy is not to become less common but instead more life-threatening.

The ruling has been widely viewed as unlawful: the Constitutional Tribunal, a PiS-controlled body that lost its independence following the judiciary reforms condemned by the European Commission, is considered to be violating the fundamental women’s rights. The right to safe and legal abortion remains within the sphere of human rights that is highly adherent to the rule of law the EU countries have a reputation for upholding. The decisive action of the European Union seems to be crucial in determining the well-being of the current victims of the absence of the rule of law.

Although the Polish government prevented the court’s decision from coming into play by indefinitely postponing its publication, the protests continue with the aim of authorizing abortion during the first trimester. People are officially calling it a revolution, suggesting that the reasons for the social discontent extend far beyond the abortion ban.

The women on the streets are multitudinously joined by the LGBTQ+ community, among which the government long reaps a bitter harvest. The years of peaceful advocacy by the LGBTQ+ activists have not brought any changes in the general attitude concerning the sexual minority: proposals of same-sex marriages legislation have been rejected, the punishment mechanism for hate crimes on the grounds of sexual orientation has never been implemented. Yet, the persecution reached a flashpoint with the rise to power of the PiS party when the culture war began. In the country defining national identity through the prism of Christian values, not rarely can one see the vans belonging to Foundation Pro campaigning against abortion on the streets of main cities.

The situation reached new heights in February 2019, when the mayor of Warsaw, Rafał Trzaskowski, signed the LGBTQ+ declaration, favoring the politics of inclusion. The conservative politicians and Catholic clergymen came out swinging, calling against the early sexualization of children starting at the age of 0 to 4. Indirectly consequential was the detention of an activist Margot Szutowicz who, in August 2020, was accused of vandalizing one of the homophobic trucks. In effect, the wave of protests swept over the country, resulting in police violence and over 50 arrests. However, the persecution of the LGBTQ+ community crescendoed in June with the declaration of 100 Polish municipalities to be LGBT-free zones. That came together with President Andrzej Duda’s highly quoted words that the LGBT ideology is worse than communism, referring to the belief that the LGBTQ+ community poses a risk to traditional families.

All the regulations met with widespread opprobrium from the EU bodies. The head of the European Commission, Ursula von der Leyen, labeled the LGBT-free zones as humanity-free-zones that have no place in our Union. The EU further undertook a radical measure of blocking funds to six such Polish towns that applied for the Town Twinning program. The international efforts were ended off with the open letter signed by the envoys of 50 to end discrimination of sexual minorities.

As of 2020, the Rainbow Maps assessing European countries’ commitment to LGBTQ+ rights and equality shows Poland plummeting down to the lowest place in the ranking with just 16 points. However, the forecasts for a higher position seem gloomy as long as the PiS party keeps creating conflict by excluding an increasing number of groups from the national community, whether it be women, an LGBTQ+ community, or judges.

The most direct breach of the rule of law, which mobilized the EU bodies for the war against Poland, stemmed from the Constitutional Court Crisis of 2015 and the following wave of judicial reforms, which undermined the independence of the courts and built a fundament for further assaults of PiS on the democratic norms. Thus, since 2015, the EU has been intensifying its efforts to smash the illegitimate moves of the PiS party, eventually triggering Article 7 of the Treaty of European Union in 2017. Although some of the regulations have been successfully ruled by the ECJ to be unlawful, some issues have been unresolved, leaving the judicial system open to abuse that is taking place right before our eyes.

On November 18th, the SC judge Igor Tuleya, a vociferous critic of the judicial reforms, had his immunity revoked by the disciplinary chamber of SC amidst the fact that he allowed the journalists to hear and record his ruling on a disputed 2016 parliamentary vote. Yet, it is argued that he was legally authorized to lay bare the hearing, while his removal was conducted by the disciplinary chamber that does not meet the criteria of a court in the understanding of national or EU law.

The removal of Tuleya’s immunity stroke the day Polish Prime Minister, Mateusz Morawiecki, was insisting that Poland would not accept the new mechanism of the EU linking the funds to the rule of law. When in July 2020 the EU negotiated a total financial package, it implemented a provisional agreement on blocking the funds from pouring into the governments acting against the rule of law. It was supposed to be a Brussel’s threat to Warsaw to stop the overhaul of the judicial system.

Since the negotiations started, the word veto has been on the lips of the Polish right-wing politicians. As the Minister of Justice, Zbigniew Ziobro, stressed: Poland will oppose any plans to tie EU money to adherence to the rule of law as understood by the EU, in the name of traditionalist interests. The confident stance stems from the reassurance of a Polish ally: Poland and Hungary had said they would protect each other from the Article 7 procedures, rendering the rule-of-law-mechanism (requiring unanimity) ineffective. The opposition labeled the veto as a suicidal step with the potential to lead Poland out of the EU.

All of this was just a pessimistic forecast until last week when firstly Hungary and then Poland explicitly stated they will veto the bloc’s €1.8tn budget and coronavirus recovery plan. The Polish government views the veto as the beginning of the heated negotiations aimed at reaching a consensus equally beneficial for the EU and Poland. However, the decision got widely lambasted among the EU bodies. Many regarded the veto as a factor leading to the imminent EU crisis. With the blockade of the EU budget and recovery package, the European economic crisis may intensify, naturally extending to the massive recession in Poland. According to political analysts, Chancellor Merkel should now take the lead after years of vague interference in the negotiations.

The de-democratization of Poland, not that long ago viewed as a paradigm of successful Europeanization, unfolds in full strength as the democratic norms are in the state of gradual erosion. By trampling over human rights, the breaches of law that shake the fundaments of a solid democracy, ultimately undermining the Polish integration into the EU structure and values and gradually leading Poland to the point of no return to the stable relationship with the European Union.

Cover picture "Women's Rights" by Grzegorz Żukowski is licensed under CC BY-NC-ND 2.0