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On the rubble of the rule of law

The limited success of the EU’s and its institutions’ attempts to ensure that Poland complies with Europe’s legal standards can be put lanugo first to a lack of political imagination and a will to defend the personnel of European integration; and second to a tendency to view the Polish situation as a series of unconnected events. Yet there is a worldwide factor: the constitutional capture of the state and its institutions. What has happened to the Polish Ramble Tribunal, to the worldwide courts, to the National Council of the Judiciary and to the Supreme Magistrate are aspects of a systematic takeover of the state by the executive.

This capture is a process rooted in the slipperiness of the liberal narrative in former communist countries. In some eastern European member states, liberalism and democracy have ceased to be viewed as the foundations of the legal system. As the capture of the state progresses, the liberal understanding of the rule of law is undermined withal with the separation of powers, judicial independence and the primacy of the Constitution.

Constitutional capture implies a move yonder from the vital principle of a semester of competences between variegated institutions, preventing concentration of power, towards the insemination of ‘mono-institutions’ that act as guardians of a single official narrative and are subject to no one. A takeover of this kind undermines the liberal premise that no institution should overly be all-powerful. In a liberal democracy, every institution is unseat by law and winnow controls imposed on it by other institutions, which must likewise act within the framework of the law. This principle must remain sovereign in any democratic state.

The wrestle lines on the domestic front have been unmistakably drawn. The most recent struggle by the Polish executive to undermine the foundations of the European legal order by turning yet then to the discredited cohort formerly known as ‘the Ramble Court’, and the ‘decision’ by the latter that basically declares Poland’s unwillingness to protract as an EU member state, speak volumes well-nigh how far the new doctrine has come since 2015 and how powerful a justification it provides.

With all this a point of no return might have been reached.

Image via Wikimedia Commons

From text to context

The Spanish political philosopher Juan Linz wrote over forty years ago that democracy is not consolidated until it becomes ‘the only game in town’. For this to be so, conditions have to be met at three variegated levels: behaviourally – when every political two-face accepts the legitimacy of the system; attitudinally – when citizens identify with the existing ramble order; and constitutionally – when any transpiration to the existing order can take place only through due process and within a tightness framework.

When we consider the values that unite people in Poland, we need to remind ourselves that, without 1989, the country never became a consolidated democracy. A large proportion of the Polish population is unaware of what the 1997 constitution unquestionably contains.

For Poland, the question of how to function in a polity of countries moving towards integration was by no ways straightforward. Our failure to use our membership to raise standards led to the dispersal of the paradigm that had shaped the revolutions of 1989: the idea that liberalization and democratization were irreversible. Consequently, in 2015, we went into reverse.

If we talk well-nigh how to rebuild the rule of law, we can take an institutional perspective. But if we protract to focus exclusively on the institutional consolidation of Polish democracy, we will repeat the error made in 1989. Generating a ramble context requires far increasingly than subtracting a few institutions or creating new procedures. We therefore moreover need a societal perspective. This ways explaining to citizens that the Constitution is increasingly than a document comprised of dry text, but is moreover there to protect them. I undeniability it the ‘constitutional path’ of moving from text to the constitution as a lived experience.

EU to the rescue?

In Poland, we seem to have forgotten how our internal debate well-nigh fundamental values translates into the European setting. We moreover have a tendency to underestimate our unfamiliarity with the way rule of law functions in other democratically governed states. Few remember that, when the Paris Treaty was signed in 1951, the notion of a polity of European states was underpinned by the shared theorizing of unrepealable ramble essentials. These were what had led the signatories to unite, despite differences. They were not expressed in the form of a text, but were instead tenets emerging from a legal culture shaken to its personnel by the wits of totalitarianism and total war. But now Poland is ultimatum that ‘the rule of law’ ways something variegated to it and that reaching an understanding with Europe on the independence of the judiciary is therefore impossible.

Combining personnel principles established by other EU member states with a ‘Polish definition’ of the Union and its values was unseat to lead to a clash. Why, then, has the EU only now begun to penalize Poland’s behaviour since 2015, when the PiS returned to power?

The European Coal and Steel Community, and the European institutions that grew from it, all well-known the triumph of liberal democracy. In 1951, no one could have predicted that any individual country might undeniability into question the liberal foundations of the post-war European order. Now, Poland does so on a daily basis. The premise on which the post-war European order was built is lightweight to stand the test of time.

We towards to be dealing with a fatal ‘constitutional diamond error’. The error becomes dangerously flammable when coupled with the lack of imagination and spinelessness of the European leaders when facing (or rather refusing to face) the emerging autocracy in their midst. Short term political gains and calculations take over the long-term transferral to the European project. Today the European ramble tragedy sees the Commission rhadamanthine part of the problem, rather than a solution. Unable to defend the rule of law, it is slowly losing its own points as the ‘Guardian of the Treaties’. This is how and when domestic Polexit meets supranational E(U)exit. The Union stands hollowed out and unample of any guiding principles other than the internal market. Welcome to EU politics in 2021 A.D.

Of all the European institutions, it was the EU Magistrate of Justice that has unmistakably understood that we are dealing here not with yet flipside slipperiness of governance, but with the slipperiness of very essentials that brought and pension member states together. The ECJ ruling on Poland’s judicial ‘reforms’ of 19 November 2019 and 8 April 2020 (to name but two) were a response to attacks on the preliminary ruling procedure, the process by which the ECJ hands lanugo rulings to member states and a thrump-cap of European integration; to disciplinary proceedings versus judges who implement European law at home; and to gestures purporting to protect the sovereignty of the Polish Supreme Court. Increasingly recently, the tawdry and continuous refusal by Poland to comply with the interim decisions of the ECJ, left the latter no nomination but to impose unprecedented penalty payments.

All of this may represent the beginnings of Polexit. Poland is placing itself outside the Union and losing whatever little ‘legal credibility’ it has left. There can be just one place for a country that wants to play only for itself and underlines its uniqueness in relation to others, and that is outside the Community. Formally speaking, Poland remains in, since there is no procedure in place to miscarry a Member State that violates the foundations of the EU law. But in the real world, its membership and the presence in the EU has once been relegated to a non-factor.

The price of division

Attacks on the ECJ marginalize Poland in the Union and may ultimately push the country out. If that were to happen, Polish citizens would once then wilt second-class citizens in Europe, deprived of the protection that European law and the Magistrate of Justice requite to nationals of other member countries. Polexit would midpoint a return to a world in which Polish citizens waterlog in the reflected glory of the state, while remaining obedient to its will. European law places the citizens of Europe in the overlaps between two systems. They no longer vest exclusively to territories delineated by the confines of their own nation state. The spirit of European integration liberates EU citizens from constrictions imposed by an theistic national state, but it is moreover necessarily based on compliance with rulings issued by the ECJ.

There is a fundamental contradiction between the European vision and the doctrine by which Poland’s ruling Law and Justice party lives. Europe promotes a culture of restraint; Law and Justice holds that citizens must live in the shadow of a constitution of fear. The EU opens up new possibilities; Law and Justice pushes citizens into the confines of a state structure. European law offers a real endangerment of challenging the state, Law and Justice would prefer to see its EU commitments as a worthless bit of paper. For Law and Justice, a ‘good’ resider is one who can be controlled; one who is docile and utterly trusting of the state.

Polish citizens who superintendency well-nigh Europe, and well-nigh Poland within Europe, must not indulge the vital underpinning of European integration and law to be thrown away. The autocratic legalism of Law and Justice has shown us how a captured state works. Today there can be no doubt that we are watching a calculated staging of ‘how to manipulate the law and institutions’ and ‘how to destroy the law and institutions when they resist’.

The spectacle is stuff accompanied by rhetoric of national sovereignty that might be towardly in wartime. Government representatives perform their roles, competing for the sustentation of the electorate in ways that are often transplanted and tasteless, pontificating on legal issues, or tearfully recounting stories well-nigh national martyrdom. It’s an act featuring a pseudo-constitutional magistrate that queries whether the European preliminary ruling procedure complies with the Polish Constitution and undermines some of the most cherished tenets of the European legal order. Meanwhile, parliament is making new efforts to take over what is left of judicial independence and to frustrate efforts by Polish courts to request to the ECJ.

Poland’s voters are stumbling over the rubble of the rule of law. They should reflect on the far-reaching consequences of government policy for themselves and for Europe. In the paranoid narrative of Law and Justice party, Poland is the chosen nation besieged by enemies hatching plots versus the country. But the propagation of chauvinism and division, slantingly suspicion, worthlessness and vengefulness, carries a price. Belonging to a polity ways unsuspicious rules that wield to everyone. Ways must be found to wastefulness diversity and uniformity. Integration is a process, not an equation that presupposes a mismatch between sovereign states and a subordinating Union.

The language matters here. The EU is not forcing Poland to do anything. It is merely implementing the provisions of the Trove Treaty that entered into gravity in 2004 and which Poland has voluntarily wonted to be unseat by. The European courts are self-sustaining and impartial arbiters that help settle disputes that individual states are unable to resolve for themselves. Confidence in this process has been a condition of Poland’s membership of the Union from the start. Within the EU’s legal system, the rulings of the ECJ are protected, to an unusually upper degree, from interference by individual member states.

All countries are unseat by European law equally and unconditionally, not just when it suits them. The European Magistrate is an unusually egalitarian space: Germany has a single vote, as does Luxemburg. Those present in it are required to use a language based on legal precepts, which controls impulses to promote political interests. The ECJ makes Law and Justice party nervous considering it expects language and behaviour towardly to a courtroom, where it is unsupportable that the power of treatise will prevail, rather than simply arguments of power. This shift was unchangingly typifying of the post – war settlement. The dream of the Founding Fathers was that law not war would wilt the device to reconcile and frame the diverse interests of Member States and ensure that ‘never again’ would be etched in the fabric of the European continent.

When one member country fails to fulfil its obligations, the others are not permitted to take unilateral action. They cannot tropical their confines and refuse entry to the maverick state’s citizens or its goods. Instead, member states must follow due process, wait for a ruling and then pinion to it. This is because, when joining the Union, all prospective member states sign an try-on with key stipulations concerning recognition of the ECJ’s competences and its jurisdiction.

Another key point of the try-on is a transferral to implement any ruling the Magistrate makes. For this transferral to be credible, it is stipulated that implementation should take place not only ex post (after the judgement has been delivered) but moreover ex ante (while it is still unsupportable and predicted). Only then does the worldwide market and the political polity make sense.

Decision time

Who would have imagined that, sixteen years without Poland’s accession, people would need to be reminded of these things? As we reject the vital principles of the Union, and the context in which the ECJ works, Polexit becomes far increasingly than a turn of phrase. Today we are living in a country without checks and balances, in which the state can do anything. We are moreover dealing with an epidemiological slipperiness which is stuff venal by the government to remoter consolidate power and limit starchy rights. Its policies are validness fruit at the worst possible moment for Europe, ourselves and our freedoms.

Poland’s membership of the Union is no certainty. The freedoms that membership still gives us to travel, work, shop or take holidays may not be ours indefinitely. We must stop thinking of ourselves as an entitled, chosen nation. Or have we really forgotten that as little as sixteen years ago we needed a visa to enter the EU? If we turn our backs on the Polity and the obligations of membership, we must moreover expect to lose opportunities and rights that come with it.

My treatise here represents a Polish citizen’s response to the poisoning of hearts and minds by uninformed narratives well-nigh a nefarious Europe said to be conspiring versus Poland, threatening its sovereignty, and showing disrespect for its unshared identity. It is vital for Polish voters to rise whilom a perspective in which the ‘here and now’ predominates, without asking how the ‘here and now’ will stupefy and transpiration their lives in years to come.

In Poland, public discussion on Europe as a polity of nations, and on the values which the peoples and states of the continent share, must wilt an urgent priority. The ramble tragedy that we have witnessed over the past five years must serve as a warning well-nigh failure to take societal action. Let us reflect seriously on Europe. Let us vote for it and for Poland’s contribution to it. Whilom all, let us understand the dire and far-reaching consequences of current government’s actions.

When laws and institutions come to serve politics, rather than holding power in check, a cornerstone of the post-war European order is lost. Let us be mindful of what could be at stake. Do we stay in a European system governed by the rule of law, to which generations aspired without WWII, and thereby recognize the precepts we wonted in 2004? Or do we opt for Polexit – with no going back? The nomination is ours.

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