Polish constitutional lawyer Anna Rytel-Warzocha on the recent political developments in her country, the question whether democracy is threatened, the strength of Polish civil society and the role of modern direct democracy to protest against the measures of the new Polish government. In a conversation with Cora Pfafferott.
There is a lot of international news about Poland these days. Many comments claim that Polish democracy is threatened. How do you perceive the situation as a resident of the country?
Ania Rytel-Warzocha: I would not dramatize the situation, but for sure, it is true that the current situation in Poland is quite difficult, and I see some dangers and problems. Overall, Polish society is currently very divided. On the one hand, there are many people criticising the new government and protesting against the way it exercises its power. On the other hand, there are many people who support the governing party Peace and Justice (Prawo i Sprawiedliwoźġ PiS) that won the parliamentary elections of October 2015.
Concerning democratic legitimacy, one could argue that the decisions taken by PiS are democratic as PiS has the absolute majority in both chambers of the Parliament, the Senate and the Sejm. What do you think about this argument?
It is true that PiS has won the last elections and gained the absolute majority in both chambers of the parliament. In the Sejm (the Polish lower house), a party has gained the absolute majority through democratic elections for the first time since the political transformation of 1989. In line with Polish law, this absolute majority puts PiS into a position to adopt or amend ordinary laws and statutes without requiring the support of other parties.
At the same time, the governing party PiS still does not have the necessary 2/3 majority in the Sejm to amend the Constitution. Yet PiS has taken some decisions that are perceived as breaking constitutional principles and rules that are morally ambiguous at least. To these decisions belong the presidential act of grace for Mariusz Kaminski. Although this man had been found guilty of abusing power when heading the anti-corruption agency, the new Prime Minister put him in charge of the secret services. Also morally ambivalent decisions are the appointment of PiS affiliates for offices in the civil service and the amendment of the law of the Constitutional Tribunal that aimed at influencing the composition of the Tribunal. Moreover, not fully correct is the government´s disrespect of the Tribunal´s decisions and its reluctance to publish the Tribunal´s decision in the Official Journal of Laws.
The international criticism of PiS mostly concentrates on two issues: The changes to the Constitutional Tribunal in terms of the majority required to take a decision and the "small media law" that concerns the management and supervisory boards of the Polish public television broadcaster. In your view, which of the two issues is more problematic?
As a lawyer and a teacher of constitutional law, I am more worried about the changes made to the constitutional court. A whole series of events resulted in reducing the authority of the constitutional court in Poland that paralysed its work and thus prevented the effective exercise of the Tribunal´s basic function, which is to review the constitutionality of law created by the parliament.
For example, five judges were newly appointed although the previous parliament had effectively appointed three new judges. Another case is that the President refused to receive the oath from these three judges even though the Constitutional Tribunal clearly had stated that it was his constitutional duty. The failure to respect the Tribunal´s decision also accounts here and finally, the amendment of law on the Constitutional Tribunal aimed at the quorum required to consider a case. This creates a dangerous precedent.
At the same time, it must be noticed that in relation to the Constitutional Tribunal the previous ruling party also acted on the fringes of law by changing the law and forcing the appointment of five judges just before the end of its term of office.
You had mentioned that Polish society is very much divided on PiS´ current politics. Can you cluster proponents and opponents into social groups or draw any other lines? For example something like: socially disadvantaged people are in favour of the Government, well-educated people are against the party in power and its current politics?
I think this would be a wrong generalisation and it would repeat stereotypes. There is also no clear division between the Western and Eastern part of Poland as it used to be in the past. Usually the Eastern part voted more traditionally and hence was more likely to support PiS. However, in the last elections the governing party won the majority of electoral districts also in the Western part of Poland. Overall, the social circumstances in Poland are much more diverge than broadcasted abroad.
The Committee for the Defence of Democracy (KOD) has organised demonstrations to protest against the measures by the Polish government. These marches took place on 19 December and at the beginning of the new year. In your view, how strong is KOD?
I think that KOD works very efficiently, especially when bearing in mind that it did not start as a formal organization but as a bottom-up-initiative. It managed to bring together people of different environments and different views, who are all dissatisfied and disappointed with the actions of the ruling party. PiS and its supporters seem to diminish the real power of those who support KOD by claiming they have been manipulated. For sure, the escalation of this conflict does not make any good for Poland especially as the used language often is compromising and even offensive.
On 13 January, the European Commission announced to start a structured dialogue with Poland under the Rule of Law Framework. What is your opinion of this decision?
I think it is a tricky one. Overall, for Polish people and Poland it is not good when a political community from abroad intervenes in the country´s domestic affairs. I am curious to observe if the European Commission will take any further steps - I hope it will not do this.
After all, is there anything worthwhile mentioning we do not hear from the international media?
The situation in Poland is much more complex than portrayed by the foreign media. Beyond the issues with the Constitutional Tribunal and the media law, there are many more governmental decisions that are controversial. Here I just need to recall the amendment of the police law that makes it possible to extend the surveillance of the secret services. The Sejm adopted this decision even though the Ombudsman, the General Inspector of Personal Data, the National Council of the Judiciary, human rights organisations and many others had expressed concerns of this decision.
Moreover, the new Parliament has already abolished compulsory schooling for children aged six that the previous Parliament had introduced. Also this decision triggered lot of criticism by the society, and it even had been the subject of a popular initiative.
Can you please tell us more about this popular initiative on maintaining compulsory schooling? Who made use of it, was it successful, and if not, why not?
The popular initiative concerning this case was a reaction to the decision of the previous government led by the Prime Minister Ewa Kopacz and the parliament to amend the Law on the education system in 2013 in order to reduce the age of compulsory schooling from seven years to six years. It caused a lot of controversies and protests by parents. As a result, a popular initiative was undertaken. Citizens managed to collect the required support of 100 000 signatures and successfully introduced it to the parliament. However, on 30 December 2015 the new parliament abolished compulsory schooling for 6-year-olds. Therefore, the further proceedings of the citizens proposal became obsolete.
And overall, is direct democracy in Poland strong enough to correct measures by the Polish government
Not really. Despite that constitutional provisions declare the principle of direct democracy and the constitutional right to referendum and popular legislative initiative there are a lot of legal obstacles to use these tools successfully. The most important is that the popular initiative in Poland is not binding for the parliament, which can reject the people´s proposal or change it even completely.
Anna Rytel-Warzocha is a lawyer and holds a PhD in Constitutional Law. She works at the Faculty of Law and Administration at the University of Gdansk, North of Poland, where she teaches constitutional law and conducts research on participatory democracy. This interview has been conducted by Cora Pfafferott, Spokesperson of our partner Democracy International, where a first version of this conversation was published.
