“The end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of law, where there is no law, there is no freedom”. The words of John Locke, the seventeenth century English philosopher who lived through the English civil war and the Glorious Revolution, when these notions were fought over. And, of course, the fight for freedom continues in many parts of the world, although the link between law and freedom does not always meet the Lockeian ideal. Indeed, too often in today’s strange political atmosphere, there are those who would have us believe the words of that other English philosopher George Orwell: “War is peace. Freedom is slavery, Ignorance is strength”, as we sleep walk into a 1984 and Brave New World future.
Be that as is may, the Polish prime minister speaking at a convention of the governing Law and Justice party on Sunday said that “during the last 30 years there has not been as much freedom in Poland as there is today.” Let’s hope he is right although, given that he was referring to allegations that the government has violated the constitution and harmed judicial independence, it appears that not all agree.
The European Commission, for one, would not. In July it launched a procedure against the Polish government over its reform of the supreme court, saying that the changes undermined “the principle of judicial independence, including the irremovability of judges”. This is in addition to the unprecedented action taken by the Commission in December last year to trigger the procedure under article 7 of the EU treaty, following concerns about the rule of law in Poland, which started with changes to the constitutional tribunal shortly after the government came to power in October 2015.
The government has always maintained that these extensive changes were needed to reform an inefficient and at times corrupt judicial system which is tainted by its communist past. The government has accused the judges of being an elite, self-serving clique which is often out of touch with the concerns of ordinary folk.
It an interesting view, and certainly reform is needed, not least in the relatively simple matter of timetabling hearings. Lurking communist infiltration is harder to assess. The passage of time would suggest that most communist-era judges will have retired by now, and it does seem odd that a prominent communist-era prosecutor should be part of the government while those retirees who filled more minor roles have their pensions cut. Is it simply the case that there the right sort of communist just as there is, it has been suggested, the wrong sort of Pole? I don’t know – just asking for a friend.
One of the great achievements of the downfall of communism in Poland was the avoidance of bloodshed or civil war. If a few compromises along the way avoided bodies hanging from lamp posts, or other signs of the peeved populace pursuing its revenge, can we really say that was wrong? I imagine few would.
Morawiecki himself had struck a conciliatory note two days earlier when he wrote on Twitter in reference to the celebrations held in Gdańsk to mark the 38thanniversary of the 1980 August Agreements between the communist government and a committee representing striking workers, allowing for the formation of autonomous trade unions (leading to the creation of Solidarity) and the right to strike. “August 1980 was the most mass-scale and significant chapter in the struggle for freedom for the nations subdued by communism,” the PM tweeted. “Let us never forget these days when Poles stood so consistently together and were so kind, loyal and close to one another, despite all the divisions. #Solidarity.”
Given the events of the last 38 years, it probably is fair to say that Poland today has more freedom that at any time in the last 30 years. And while, according to polling organisation CBOS, the prime minister is the second-most trusted politician after the president, enjoying the approval of 57 per cent of those surveyed (compared to the president’s 66 per cent rating) – not a particularly high bar cynics might say – that does not that what he says today will be true tomorrow. The full effect of the judicial reforms has yet to be felt, and not everybody is as sanguine as the prime minister. Better to remember the words of Edmund Burke; “the greater the power, the more dangerous the abuse”, and be wary of those seeking power over the judiciary. Freedom is as fragile as it is precious.