Misunderstanding

“It is by universal misunderstanding that all agree. For if, by ill luck, people understood each other, they would never agree.” The words of French poet, Charles Baudelaire. And when it comes to a lack of understanding which, in life as opposed to poetry, has thus far lead to a lack of agreement, Poland’s continuing tussle with the EU Commission over the rule of law is a case in point.

The Polish government is giving no ground in the fight over its judicial reforms. On Monday, announcing its reply to the Commission’s notice last month giving Poland a month to answer grave concerns about proposed judicial changes, the Polish foreign ministry announced that “in the spirit of sincere cooperation” between a member state and the Commission, it had been passing on reliable information about the situation in Poland. In response to the Commission recommendation of 27 July 2017 that proceedings be begun against Poland, the foreign ministry stated that it had underlined that the continuing legislative measures aimed at reforming the judicial system, “are in line with European standards and respond to many years of growing social expectations in this regard, and so they groundlessly raise the Commission’s doubts.”

The foreign ministry statement also noted Poland’s reservations concerning the EU’s rule of law procedure launched by the Commission. This was on the grounds that subjecting legislation to evaluation while the legislative process is continuing contradicts the original communication received from the Commission since the two of the laws analysed were not applicable following the president’s veto. The statement concluded by expressing the hope that “the exhaustive clarifications” provided in Poland’s response to the recommendation will be carefully analysed and help to clear up any doubts.

Well that clears up the problem – it’s all just a misunderstanding. As Politico reports, quoting a Polish diplomat who spoke anonymously, “the government is not certain that the Commission has the competence to interfere in the Polish judicial system. The government doesn’t understand why the Commission is able to be so active in the rule of law framework – the member states and the European Council should be responsible for that.” It seems that any lack of irony is make up for by a touch disingenuousness.

And while none is more committed to the unity of the EU than Chancellor Merkel, she said on Tuesday in Berlin that the principles of the rule of law cannot be abandoned for the sake of EU unity. “The unity of the EU at the cost of abandoning the rule of law — that would no longer be the European Union,” Merkel told reporters that she was taking the matter very seriously. The chancellor will be holding “exhaustive” talks on the rule of law in Poland with Commission president Jean-Claude Juncker in Berlin on Wednesday. “Although I would very much like to have very good relations with Poland, which is our neighbor … we cannot simply hold our tongue and say nothing in order to keep the peace. This is about the foundations of cooperation in the EU,” Merkel said.

Be that as it may, President Duda reiterated his message that Poland needs a new constitution, describing the current 20 year old constitution as a “transitional constitution” that needs to be replaced by one with more precise wording. He was speaking in Gdańsk during a debate organized with Solidarity trade union with title “A Constitution for Citizens, not for the Elites?”

According to the president, the current constitution has many imperfections that need to be addressed, such as the imprecise distribution of power amongst different state institutions, and the fact that the constitution defines Poland as a social market economy, which he contends does not yet exist in practice because it is still being built. It is not clear that the latter point would be at the top of most folks’ worries about the constitution, but there you are.

President Duda has suggested 11th November 2018 as a suitable date for a referendum on a new constitution. When proposing this in May, he said: “Poles have a right to say whether the constitution, which has been in force for 20 years, should be changed,” adding that Poles themselves should be able to decide on the directions of the country’s development. Perhaps Poles would simply like the right to see the existing constitution respected and upheld by the president against the machinations of politicians. Or perhaps it’s simply been a misunderstanding after all.

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