Constitutional Crisis in Poland

By: Steven Simmons

Background

A constitutional crisis is continuing to unfold in Poland. In late 2016, the Polish nationalist right-wing government succeeded in packing Poland’s Constitutional Tribunal, an important check on legislative and executive power in Poland, capping a year-long campaign where the court overturned numerous laws as unconstitutional.[1] In addition to its court-packing scheme, the Polish government has also created new censorship laws, providing the government with control over the media in an attempt to stifle criticism from independent sources.[2] This strategy has proved successful inside Poland, culminating in the Constitutional Tribunal upholding a law limiting the right to the freedom of assembly for individuals and groups; giving priority to rallies held by the Catholic Church and those “deemed by authorities to have national importance.”[3] In addition, the law would allow the government to cancel counter-protests to the rallies of national importance, giving the government the power to further silence dissenting voices.[4] Before the court-packing occurred, the Polish Supreme Court even argued that the law would violate one of the Poles’ fundamental rights.[5]  

The European Union has continued to voice its opposition to the limiting of freedom of assembly and packing the Constitutional Tribunal throughout the period of constitutional crisis.[6] In late 2016, the European Commission even issued an ultimatum to the Polish government, declaring that the changes to the Constitutional Tribunal violated the European Union’s 2014 Rule of Law provision and demanding the Polish government roll back the reforms.[7]

Law

The European Union’s 2014 Rule of Law provision seeks “to prevent, through a dialogue with the Member State concerned, that an emerging systemic threat to the rule of law escalates further into a situation where the Commission would need to make use of its power of issuing a proposal to trigger the mechanisms of Article 7 TEU.”[8] The provision creates a framework for the European Union to follow with member-states before invoking Article 7 of the Treaty of the European Union.[9]   The Framework establishes a three-stage process: a Commission assessment, a Commission recommendation and monitoring of the Member State’s follow-up to the Commission’s recommendation. . . . If however no solution is found within the Framework, Article 7 TEU will always remain the last resort to resolve a crisis.”[10] (Emphasis in the original). Therefore, if the dialogue fails, a majority of the European Counsel can always sanction the noncompliant member-state.[11]  This procedure has never been used.[12]

Legal Analysis

The European Union has already begun its dialogue with Poland, releasing several communications condemning the Polish government’s actions as contrary to the European Union’s principles of democratic government. However, until Article 7 sanctions or preventative measures are implemented by the European Council, no coercive actions can be taken to force the Polish government to implement democratic reforms. Since Article 7 has never been invoked, any use of the Article to resolve Poland’s constitutional crisis seems unlikely. In fact, it is not certain what any of these sanctions or preventative measures would look like in practice, limiting the article’s value as a deterrent; forcing nations to retain and actively maintain democratic practices. The dialogue, while having no teeth, does have value as a shaming agent. However, with the widespread censorship within Poland, the government controls the media and therefore can spin the results of the dialogue to make the criticism look like an overreach by the European Union to the Polish people. With the government in control of Polish media, the only way Polish citizens will learn of this dialogue will be through foreign news sources, easily obtainable through travel to other European Union member-states, or else from the internet. Therefore, while censorship will make internal pressure difficult to achieve, it will likely not eliminate calls for reform from inside Poland entirely.

Conclusion

Without internal pressure for reform or sanctions from the European Union, it is unlikely that the Polish government will resolve its constitutional crisis in accord with democratic principles. While the European Union may invoke Article 7 and place sanctions on the Polish government, it is unlikely that the European Counsel will invoke the article due to political concerns. Many European member-states do not want to create the precedent of imposing sanctions to stop undemocratic reforms. In addition, member-states such as Hungary are politically aligned with the Poles and likely see nothing wrong with the Polish government’s actions toward censorship. Finally, the British exit from the European Union is a warning sign; perhaps any attempt to impose sanctions will cause Poland, and any similarly inclined nations to leave the European Union.

[1] Emily Tamkin, Polish Ruling Party Passed Unconstitutional Laws, Now Controls Constitutional Tribunal, Foreign Policy (Dec. 19, 2016) http://foreignpolicy.com/2016/12/19/polish-ruling-party-passed-unconstitutional-laws-now-controls-constitutional-tribunal-trump-law-justice/.

[2] Poland’s Constitutional Crisis, N.Y. Times, (Mar. 18, 2016), https://www.nytimes.com/2016/03/18/opinion/polands-constitutional-crisis.html.

[3] Polish rights groups urge president to veto freedom of assembly bill, Reuters (Dec. 14, 2016) http://uk.reuters.com/article/uk-poland-politics-protests-idUKKBN1432CM.

[4] Id.

[5] Id.

[6] Tamkin supra note 1.

[7] Julien Borger, The EU's warning to Poland over the rule of law comes with risks, The Guardian (Jun. 1, 2016) https://www.theguardian.com/world/2016/jun/01/the-eus-warning-to-poland-over-the-rule-of-law-comes-with-risks.

[8] Rule of Law – European Commission, European Commission (last visited Apl. 2, 2017) http://ec.europa.eu/justice/effective-justice/rule-of-law/index_en.htm.

[9] Id.

[10] Id.

[11] Press Release, European Commission, Commission Recommendation regarding the Rule of Law in Poland: Questions & Answers (Jul. 27, 2016) http://europa.eu/rapid/press-release_MEMO-16-2644_en.htm.

[12] Id.