‘Militant Democracy’ and ‘Transitional Justice’: How Liberals Destroyed Polish Rule of Law

"The EU-backed authoritarian takeover of public life in Poland is meant to be a blueprint for other ‘post-conservative’ countries, ..." 

From The European Conservative

By Tamás Orbán

The EU-backed authoritarian takeover of public life in Poland is meant to be a blueprint for other ‘post-conservative’ countries, speakers at an MCC Brussels event warned.

One could hardly have imagined a few years ago that violent takeovers of public institutions and communist-era political purges would make a return in the developed West, even less so that the EU and all affiliated international organizations would either be silent or cheer on as the rule of law is tossed to the side. 

Yet it’s been happening in Poland, the fifth-largest EU country with a long and rich tradition of standing up to authoritarianism. Many suspected hard times ahead when PM Donald Tusk’s liberal coalition took over the government in December last year, but the scale and speed of his abuse of legal and democratic principles proved that the conservatives were utterly unprepared. 

With less than a year under the new rule, Poland is in a situation where laws are meaningless, elected representatives are harassed and jailed, public institutions have been hollowed out, the media is turned into a propaganda machine, and even civil society is being intimidated through brute force.

At the same time, international discussion about what’s truly going on is thoroughly suppressed. Luckily, there’s a growing list of allies willing to take up the fight, including the conservative think tank MCC Brussels, which organized an event on Tuesday, November 12th, to help the rest of us understand what’s at stake in Poland.

The panelists included two conservative MEPs, Tobiasz Bocheński (PiS/ECR) and Anna Bryłka (Konfederacja/PfE), as well as Jerzy Kwaśniewski, the president of Ordo Iuris, a Polish legal think tank and research institute.

At the mercy of “transitional justice”

The erosion of the rule of law in Poland “is not a theoretical issue, but a practical one,” Kwaśniewski said, drawing attention to the fact that the homes of over thirty conservative NGO leaders have been raided so far—with belongings taken and some even arrested—showing the level of authoritarian intimidation reached under Tusk’s leadership.

In typical Orwellian newspeak, Tusk introduced all his illegal measures under the doctrines of “transitional justice” and “militant democracy” to justify the erasure of every remnant of the previous PiS government while even admitting that he needed to take decisions outside the law to succeed.

“These are but the doctrinal disguise of a liberal coup, and authoritarian takeover of the country,” Kwaśniewski said, before explaining the ‘four pillars’ of Tusk’s modus operandi, not a single step of which was taken according to existing laws. 

First, the new government took control of the media by replacing the chief executives and boards of all public broadcasters, despite laws in place to prevent such government abuse by placing such decisions solely in the hands of a national media council. They finished by forcibly taking over the national TV headquarters, the first violent police takeover since the fall of communism in Poland.

Then followed the legal system, first by dissolving the Constitutional Tribunal (without presidential approval) and declaring all of its decisions from the past four years null and void—effectively rendering thousands of court rulings and over 250 judge appointments legally non-existent—then replacing all public prosecutors as well. The damage and chaos these measures caused are unimaginable, Kwaśniewski said. “People don’t know whether the verdicts they received are still valid, whether their judges are even judges anymore.”

Finally, came the brutal crackdown on the opposition by either stripping them of their public funding or through individual intimidation; be it politicians, heads of NGOs, or even clerics, house raids and imprisonment could happen to anyone at any time.

Conservatives in other countries should take note as Poland is being treated as a “liberal laboratory,” Kwaśniewski warned, “a playbook that’s being offered to other post-conservative states in Europe.”

EU as a “community of force”

Just weeks after Tusk took office, EU Commission chief Ursula von der Leyen and the ironically named Commissioner for Values and Transparency, Vera Jourova, traveled to Warsaw to congratulate him for “restoring” the rule of law and judicial independence in Poland and announcing the release of over €100 billion frozen EU funds under the conditionality mechanism. 

At that point, however, not a single law was adopted to change anything in the legal framework, PiS MEP Tobiasz Bocheński said. “The only thing different was names in the government,” he said, “which leaves no other conclusion than that the EU is not a community of values and principles, as often proclaimed, but of power and force.”

The EU Commission had two reasons for weaponizing the rule of law against the previous conservative government, he explained. First, freezing billions of EU funds helped install a government of its own in the country—“vote for me and I bring home the money,” was Tusk’s campaign promise. Secondly, it could pose as the vanguard of progress against the backward barbarians on the Right, essentially a façade to justify Brussels’ self-appointed civilizing mission which only hides its ever-growing lust for power.

“The EU establishment believes they are the only ones with the right to be in power in Europe, and will attempt to destroy anyone else who might be chosen by the voters,” the MEP added.

The first thing to understand about rule of law disputes in the EU is that it’s “a political issue, not a legal one,” MEP Anna Bryłka underlined. The rule of law has no fixed definition and is most commonly used as a tool of political blackmail. Brussels’ problem is not with the alleged lack of judicial independence, she said, but with conservative and traditional values that are a threat to the EU establishment’s own worldview.

At the same time, she stressed that the solution is not complaining to international organizations and waiting for them to see reason, as they are all part of the problem. “The problem must be solved within the Polish democratic framework, not outside of it,” Bryłka said, warning that further involving the EU in these matters would only surrender more power over our countries to Brussels.

Can the EU be fixed?

Prompted by the audience during the lively discussion that followed the speaker’s initial remarks, the panelists agreed that the best thing conservatives can do in Brussels is not to fall for the liberal establishment’s fake rule of law narrative by trying to prove they are the ‘good guys’ all the time. 

“It’s a trap; they know you didn’t do anything, and that’s the whole point,” MCC Brussels’ director, Frank Füredi said. According to him, the core problem is that we allowed the EU to place the rule of law above democracy, which means democratic principles can be trampled upon at any time for rules that you make up on the spot.

As a legal expert, Kwaśniewski said the one way to get out of this situation would be to divide the rule of law into two distinct spheres at the EU level: one to deal with EU laws only, and another that’s about values and principles, much of which must remain under the control of national governments to fit Europe’s diverse societies.

At the same time, any such changes are difficult and problematic, not least because the EU, unlike governments, has no separation of power or checks and balances built into it, and all its institutions are pulling the same way. “We need to provide national tools of control over the EU, operated by member states,” he said, suggesting a grand chamber composed of members of constitutional courts, or similar bodies.

Bocheński said he sees two possible futures. The positive outcome is that more and more countries wake up and slowly change the EU’s legal framework through the Council, giving member states more sovereignty in national matters. But what’s more likely is the negative one, in which the EU continues on its endless path of centralization despite all the strain of its ideological contradictions, until it implodes under the weight of its economic inefficiency. Then it’s up to us what kind of future we will build.