Since Autumn 2015, the ruling Law and Justice (PiS) party in Poland has passed legislation dismantling checks and balances and the separation of powers, and creating strong instruments for PiS to control state institutions. It has paralysed the Constitutional Tribunal, replaced the heads of public media, politicised the prosecutor’s office, and increased laws of surveillance – all against the constitution, which it does not have a majority to overturn.
This reveals a disturbing trend in which the governing party is attempting to change the entire democractic system using lower ranking laws such as acts and resolutions without changing the Constitution. Poland, a country which used to be a champion of democratic transitions, is in a situation where the key pillars of the rule of law are in danger of being dismantled.
It is difficult to view so many pieces of legislation, passed with little consultation and in particularly short legislative processes, as anything other than a concerted effort by the ruling party. Little by little it has used legislation to threaten the rule of law, and while democratically elected, it continues to erode the pillars of democracy. As Danuta Przywara, Helsinki Foundation for Human Rights, said at a recent HRHF discussion on Illiberal democracy, “Liberal democracies are ill-equipped to react if the ruling party does not obey the rules.” The effects of this have been clear in Poland.
However, is it possible for other groups to challenge these efforts? What about civil society, popular movements and protests, and the actions of international institutions and pressure by the international community?
The Polish Government has had one, arguably two, setbacks to its agenda in recent months. The czarny (black) protests forced PiS to push back its plans on abortion, and just weeks later, it was forced to accept amendments eliminating the hostile elements of a law on assemblies that would have significantly reduced the possibility of counter or spontaneous protests, and unlawfully favoured Church groups and pro-government supporters. I note here that the Church and pro-government supporters weren’t the ones dressed in black and calling for abortion rights back in October.
The anti-abortion law was met by a strong popular reaction and protest movement with support from national and international media, and this led to the government dropping the legislation. This showed that public opinion and civil disobedience are principles of democracy that the Government does not control. It can restrict what goes on behind closed doors at institutions, but it cannot silence people on the streets.
The proposed law on assemblies was arguably different to previous attacks on democratic institutions. The right to assembly – for citizens to protest freely and openly – sought to directly restrict the rights of citizens and certain groups to assemble and protest freely and equally. Unlike previous legislation, it did not need a Venice Commission analysis and opinion to tell people that it was unconstitutional and would restrict people’s rights, and it may have been all too relatable following the democratic victory of the czarny protest. It was a clear cut violation of the right to assembly and there was little doubt that it went against Poland’s international human rights obligations.
To compare, the December 2015 media law annulled all open and transparent processes for recruiting members to the boards and supervisory board of public radio and television. To be on par with proposed the law on assemblies, it would have had to read: “the opinions of church and pro-government supporters will be prioritised over those of others on public media.” The aim is the same, and the effect is potentially the same, but it is not so direct and it more toys with threats to the independence of media and freedom of expression rather than openly seeking to violate this right.
Yet, while the main element of the law on assemblies – favoring protests favorable to the government – failed, it does show that the ruling party is not content with just dismantling democratic institutions and creating instruments that it can later use to restrict rights; it also wants to pass legislation that would immediately and directly restrict human rights and freedoms.
Recent HRHF articles on the situation in Poland