After eight years of populism in Poland, Warsaw dean Mikolaj Pietrzak takes stock. What can be learned from Poland’s past? How do you quickly and thoroughly restore the rule of law without violating it yourself?
By Trudeke Sillevis Smitt
‘The day after the election I was at the court in Warsaw. In the hall, independent judges and lawyers ran to meet each other, we flew around each other’s necks, we gave highfives.’ Mikolaj Pietrzak, dean of the Warsaw Bar Association, recalled in a Zoom interview the unprecedented exuberant behaviour of the legal community in response to the 15 October election results. Left, right, conservative and liberal parties had formed one coalition in an ultimate attempt to prevent a third term of the populist PiS government. And it succeeded: the coalition led by Donald Tusk, together with two other moderate parties, has formed Poland’s new government since 13 December. ‘These parties think differently about everything, but they are all loyal to the rule of law.’
Just last September, Pietrzak featured in Advocatenblad with the haunting story of the breakdown of the rule of law in Poland, with judges being replaced by political friends of the government and the attack on the bar already well under way. Did Pietrzak think this victory was possible at the time? ‘We were hopeful, but also prepared for the worst: we have suffered losses before that we did not think possible… And a third populist term would push us irreversibly into the Russian sphere of influence, away from the community of democratic states and possibly out of the EU.’
PUBLIC EDUCATION
In retrospect, Pietrzak says, the legal community in Poland should have put much more energy into public education for decades. ‘In 2015, we realised that we should have taught schoolchildren, students, the whole of society the basic concept of the democratic rule of law. Human rights, the rule of law and independent judiciary: for lawyers it should be cut-and-dried, but many others are unsure what it means and why it matters to them. Our negligence made it much easier for the populists to come to power.’
Education is obviously not a short-term thing, but, Pietrzak says, it always makes sense to start with it. ‘For the past eight years, public information has been our focal point. We stood at pop concerts and at fairs, opened information stands and gave workshops. This has created much more public awareness. In the elections, the rule of law became the main issue and the turnout was unprecedentedly high: 75 per cent.’
UP NEXT
That the PVV became the largest party in the Netherlands in the last elections came as a shock to Pietrzak’s circle. ‘I thought: now it’s their turn… With esteemed colleagues from the Netherlands [the Warsaw Bar Association is in close contact with the Amsterdam Bar Association, ed.] I talked about how what happened in Poland could happen anywhere.’
Shortly before the elections, Pietrzak saw the most extreme figures of the PiS party disappeared from view and gave moderate speeches. ‘But once in power they carry out everything they said before, everything you didn’t want to believe they would do. And from politicians who find it necessary to identify a common enemy – immigrants, Muslims, Jews, gays or any minority – you can also expect them to deploy other elements from the populist handbook. Like subjugating the judiciary, centralising power and breaking down checks and balances.’
Then it comes down to lawyers keeping their backs straight, Pietrzak says. He is optimistic that, if it came down to it, the Dutch legal community would pass that test. ‘In our struggle over the past few years, we have received extraordinary support from the Netherlands from judges, lawyers and academics. I am confident that they will watch the government closely and act when the rule of law or human rights are violated.’
But prevention is better than cure, especially as it becomes harder to reach the public when a populist government takes control of the media – something that happened with lightning speed in Poland after the 2015 elections, Pietrzak says. He advises the legal community: ‘Take time now for appearances on TV, radio and internet media, especially those targeted by radical right-wing voters. Share your expertise on the rule of law. Talk about why certain measures may violate the Dutch Constitution, the ECHR, the Refugee Convention. Use legal arguments – it is a core task for us to hold governments accountable for acts of injustice, and to explain this to the public in an accessible way.’
VETO
Poland itself is still well within in the danger zone. The current president is a PiS sympathiser and will be there until at least 2025. He has veto power over legislation and is involved in judicial appointments. PiS government-appointed judges occupy strategic spots in the judiciary, and the procedures that were still pending to get rid of independent judges did not suddenly disappear. Pietrzak: ‘How do you untangle the Gordian knot of eight years of destruction of the rule of law without resorting to unconstitutional means yourself? If it takes a long time, it will lead to frustration among the public, and in four years there will already be elections.’
The current culture minister took over public TV, radio and news agencies immediately after his appointment and appointed lawyers to the supervisory board. Pietrzak: ‘There was a huge political need to end this terrible party propaganda and turn these instruments back into real public media.’ But the president vetoed and the measures were criticised: had they been done according to the law? ‘We had an important lesson to learn: there are no shortcuts on the road to democracy. You should not think that the people who have ruined the rule of law will soon win a case against the current democratic government at the ECtHR.’
FLEXIBILITY
However, Poland may allow itself a bit more flexibility on the path to restoration than a democracy that is well established, Pietrzak believes. ‘For example, the courts can give great weight to restoration of the rule of law when assessing government decisions that require a balancing of interests. Fortunately, Justice Minister Adam Bodnar, who as ombudsman was the only truly independent body during the PiS government, has appointed a fantastic team of deputy ministers to clean up the terrible mess and restore the rule of law: not with professional politicians, but lawyers who have put their lives at the service of human rights. A former judge who fought for the rule of law is now going to reform the judiciary.’
Among members of the judiciary who blew with the populist wind, Pietrzak sees that any enthusiasm has now disappeared. ‘You could see it the day after the elections, the judges who had colluded snuck through the corridors, avoiding eye contact. They are still in office, entrenched behind the illegal laws that put them in place. But they have gone silent now that they have lost their backing. That does indicate that they were politically controlled, which is a position you never want to end up in as a judge. This means you are not independent!’
WON
Meanwhile, the lawyers’ work continues. On 12 December, Pietrzak and several other lawyers won a case at the ECHR for five lhbti couples against the Polish state: it must allow registered partnerships. ‘I am extremely proud of that ruling, and it is a very fortunate circumstance that it was handed down one day before the Tusk government took office. For the first time in many years, there is a real chance that registered partnership, and as far as I am concerned marriage for LGBT couples, will be open. Under the populists, that statement would have fallen on deaf ears.’
This interview was originally written by Trudeke Sillevis Smitt and published in Dutch in the Dutch lawyers’ magazine Advocatenblad. Click here for the original Dutch version.
