“Quis custodiet ipsos custodies?” Juneval’s famous question, who will guard the guards themselves, might reasonably be asked of any persons in positions power, and none more so than governments. Even governments with democratic credentials need to be kept under scrutiny since, as Lord Acton reminds us, “power corrupts and absolute power corrupts absolutely.” And thus in Poland, where it is alleged that the government’s recent changes to the functioning of the Constitutional Tribunal, changes at state media organisations, and so on are not quite constitutional cricket, ombudsman Adam Bodnar has referred to the Constitutional Tribunal the anti-terror law which came into force on 22nd June, alleging a number of infringements of the constitution.
Bodnar claims that nine clauses in the new legislation are contrary to the country’s constitution, the EU’s Charter of Fundamental Rights, and the European Convention on Human Rights. While the government has said that the new measures will increase the efficiency of Polish anti-terrorist operations and improve coordination between security services, opposition politicians and human rights organizations claim the new measures will infringe citizens’ rights.
According to the ombudsman’s complaint, the new law violates the right to privacy and freedom of communication, the provisions are unclear as to the grounds for gathering data on individuals, arresting civilians, banning demonstrations, or disconnecting citizens from the internet. The ombudsman also questions the provision which allows investigation non-Polish nationals without the permission of the court. In the ombudsman’s words: “Although the bill was motivated by a good cause – setting regulations in order and boosting domestic security – [the law] lacks precision and detail, giving special services free rein and unchecked power.”
Anna Surówka-Pasek, undersecretary of state at the presidential office, in an official response to the ombudsman, wrote: “As a consequence of an undisputable threat of international terrorism, the improvement of Poland’s security through increasing the efficiency of public administration bodies has become indispensable, which is why the president of Poland has signed the law.”
Leaving aside the general observation that as governments try to grapple with terrorism it is the rights of law abiding citizen which suffer while the terrorists, who by definition no respecters of the law they, seem relatively untroubled, this complaint demonstrates the fundamental importance of the Constitutional Tribunal as a guardian of the rights of the citizen against the unchecked power of the state.
Hitherto, the debate on the functioning of the Constitutional Tribunal has probably seemed too academic to many voters. Having neither the time nor inclination to study the issue in detail, some might well have accepted the government line that the whole controversy has been stirred up by the disaffected opposition and its allies abroad, including the EU, to use as a stick to beat the PiS government as it tries to put Poland back on the, by its lights, right path. But who, if not the Constitutional Tribunal, is in a position to consider whether the ombudsman is correct in suggesting that the special service have “free rein and unchecked power”?
Despite its bravado, the government is clearly sensitive on this point. Last week’s rushing through the lower house of parliament, on the eve of the NATO summit, of yet another bill on the Tribunal, and the attempts to spin President Obama’s warning to resolve the dispute in a way compatible with NATO values into an unqualified statement of praise by him of the current state Polish democracy, show this. The fact that the reporting of Obama’s remarks on state television gave a wholly different impression from what he actually meant, rather proved the point of those who criticise Poland’s current direction of travel in this area.
Meanwhile, the Venice Commission is also looking at this latest bill which has now been sent to the Polish senate. It is expected to issue next week an opinion on the bill and whether it is in accordance with Polish constitution. The government has yet to respond to the EU Commission’s opinion issued under the rule of law procedure.
What next? The Prime Minister, Beata Szydło, at a press conference yesterday, hailed the NATO summit as a “great success for Poland” and Defence Minister Antoni Macierewicz said “From the perspective of national interest and Polish history, the gathering is an event that entire generations had been waiting for, perhaps, since World War II, dreaming that we could finally feel safe”. Perhaps both might now show some magnanimity, return to the cabinet table, and thrash out a deal over the Constitutional Tribunal which leaves citizens feeling equally safe in the face of the power of the state.