“Radicals don’t care about the institutions. They are looking for an ideological crusade. Traditions don’t matter.” The words of American academic Norman Ornstein which some might consider apposite when considering the current Polish government’s quest to create the right sort of Poland for the right sort of Pole. But, it appears, the boot is on the other foot, and the government is more crusaded against than crusading.
That, at least, is the view of Krzysztof Szczerski, a senior adviser to Polish President Andrzej Duda, who has accused the vice-President of the European Commission, Frans Timmermans, of waging a “personal crusade” against Poland. He told Polish Radio that he was concerned at the stance Timmermans was taking on Poland. “On the sidelines of the Munich Conference he continued his personal crusade against Poland,” Szczerski said. He added that Timmermans’s attitude should spark “a formal response” from the Polish Ministry of Foreign Affairs to the President of the European Commission, Jean-Claude Juncker. “It seems to me that he [Timmermans] is far exceeding the mandate that the Vice-President of the European Commission has under the treaties,” Szczerski said.
This was in response to remarks made at the 53rd Munich Security Conference on Friday, when Timmermans and Polish Foreign Minister Witold Waszczykowski traded comments on the long–running affair of changes to the composition and functioning of the Polish Constitutional Tribunal. Timmermans said the principle of the rule of law dictates that EU member states do not interfere with their countries’ justice system. “There is no provision anywhere in law that requires a country to have a Constitutional Tribunal, but if you have a Constitutional Tribunal, in line with your constitution, then please do respect the rules of your own constitution,” said Timmermans.
Waszczykowski’s response was brief and to the point: “Please allow us to respect our own constitution, not your vision of our constitution.” And he seemed to have some support from former Polish prime minister and leader of the Democratic Left Alliance party who told broadcaster Polsat that Timmermans should not speak out “too often” because he comes from a country which does not have a constitutional court. The Netherlands “has a constitutional ban on courts assessing the conformity of laws with the constitution,” Miller added. “I would prefer that this matter, which concerns Poland, to be handled by someone other than Mr. Timmermans. Let him just finish with this, let him acknowledge his mission as completed… let him stop putting Poland into a corner,” Miller added.
Whether or not the Netherlands has a constitutional court seems rather beside the point, since Timmermans was speaking in his EU capacity and in the context of the continuing EU Commission’s procedure to assess the operation of the rule of law in Poland. Besides, the Dutch seem pretty easy going law abiding folk with good commercial sense, so perhaps they have been able to trust their politicians not to overstep the mark. They also lent us a king, which was kind of them.
Be that as it may, Waszczykowski said on Tuesday that he considers the issue of the state of the rule of law in Poland a “closed” case. Speaking a day after the government said it had submitted a detailed response to the Commission recommendations made on 21 December when the Commission said that the appointment of a new head of the Constitutional Tribunal was “fundamentally flawed”, called on the government to reverse the changes to the Tribunal, and gave it two months to reply.
This is the latest move in the rule of law investigation started by the Commission in January last year which could, in theory, lead to the EU imposing certain sanctions on Poland, something unlikely to happen in practice since unanimity would be required and Hungary has said it will not support such sanctions. For its part, the Polish foreign ministry said on Monday that the appointment of a new head at Poland’s Constitutional Tribunal late last year and the new rules had created “the right conditions for the normal functioning” of the court.
Critics have argued that the changes are a blatant attempt to stack the court in Law and Justice’s (PiS) favour, while PiS has argued that a constitutional court with a majority of judges appointed under the previous government should not be able to challenge key policies for which PiS secured a mandate in the elections in late 2015. Of course, the better democratic approach would have been to have waited and gone back to the electorate with proposals for change had the Tribunal actually struck down any of PiS’s laws, rather than some form of pre-emptive retaliation. But when one’s on a crusade, such niceties seem unimportant.