Nicholas Richardson
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Attack

“Men rise from one ambition to another: first, they seek to secure themselves against attack, and then they attack others.” The words of Niccolo Machiavelli which are, perhaps, not inapposite when considering the latest intervention – the suggestion by a UN envoy that Poland’s justice system in under attack – in the continuing controversy over judicial independence and the rule of law of law in Poland.

According to Diego Garcia-Sayan, a United Nations special rapporteur who arrived in Poland on Monday, both the independence of the judiciary and the rule of law are threatened. Commenting on the government’s planned reforms to the judiciary, Garcia-Sayan said the changes appeared to be worse than the system they were supposed to fix, adding for good measure that they were an attack on the courts and that they undermined the separation of powers. He referred to changes to the Constitutional Tribunal as the “first victim” of the changes under the Law and Justice (PiS) government, which was elected two years ago.

Garcia-Sayan, who spoke to officials from the justice and foreign ministries, the president’s office, courts, and the human rights commissioner while in Poland, also criticised the changes to the Supreme Court and to the National Council of the Judiciary which he said were being discussed “behind closed doors”. New laws are indeed being discussed by President Duda and the leader of PiS, Jarosław Kaczyński, following the former’s veto of two of the three bills proposed by PiS in the summer, proposals which lead to protests at home and fierce criticism from abroad. He is expected to give a full report on the situation in Poland to the UN’s Human Rights Council in mid-2018.

Poland’s foreign minister, Witold Waszczykowski, denied Garcia- Sayan’s allegations, saying that although he was entitled to his opinions, Poland was entitled to disagree, and that if the separation of powers and the independence of the courts “are threatened … then it means they still exist”, not dissimilar, one might think, to the view that if the drowning man is waving for help, he must still be swimming. Besides, Garcia- Sayan was criticising reforms “which have not happened yet”, Waszczykowski added.

And as if that wasn’t enough for one week, a team from the Venice Commission, the Council of Europe’s advisory body on constitutional matters, was also visiting for two days to look at changes to Poland’s prosecution arrangements. Of particular focus was the merging in January of the justice minister and prosecutor general posts, on which the Commission is to present its opinion in December.

A PiS Sejm deputy, Dominik Tarczyński, said that his fellow party members justified the changes in Poland by reference to specific examples of similar arrangements in other countries. For his part, Borys Budka, a deputy from the opposition Civic Platform (PO) party and a former justice minister said: “We raised all the concerns we had during the legislative process, starting with the express speed with which this bill [on the prosecution service] was worked on, and ending with procedural powers being given to the prosecutor general, who is a politician”.

So far, so typical, but what conclusions may be drawn? Much will depend on the final shape of the laws to replace those vetoed by the president. The exercise of the veto was perhaps inevitable after Jarosław Kaczyński’s outburst in the Sejm, when he accused the opposition of having been responsible for his brother’s death, if the president were not to be seen as a puppet of the party leader. Of course, the cynics will argue that the veto was part of a plan to make the changes proposed by the president seem more palatable, even if they turn out to have be little different from what was originally proposed by the government.

In this regard PiS has been suitably Machiavellian. Expecting elements of its programme to be resisted by the opposition and perhaps struck down by the Constitutional Tribunal, it sought to neutralise that body before progressing through the rest of the judiciary, while tapping into a feeling a discontent with the judiciary, and accruing excessive power in the person of the minister of justice. That process has, pro tem, been interrupted but, to a large extent, having freed itself from effective attack by the opposition, the government has been able to attack others. Others, for these purposes, principally includes the opposition, and the European Union for its various interferences in Polish affairs. And while at face value, this has been a successful strategy for PiS, with the party enjoying record support according to the latest opinion poll by CBOS, which puts it on 47 per cent, far ahead of PO on 16 per cent, whether this policy of continual attack is sustainable remains to be seen.

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Safe

“An alliance with a powerful person is never safe.” The words of the Roman poet, Phaedrus, which are suddenly apposite as the Polish prime minister, Beata Szydło, said on Tuesday morning that there will be a government reshuffle within the next few weeks.

“The decision has been made; there will be changes in the government,” Beata Szydło told private broadcaster TVN24. She added that she was discussing details of the reshuffle with Jarosław Kaczyński, the leader of the ruling Law and Justice (PiS) party, who many consider to be the de facto prime minister. For her part, Szydło dismissed speculation that the reshuffle might see her own departure, saying she would remain in office. But how safe is she really, given the power the party leader seems to wield?

According to deputy prime minister Jarosław Gowin, she is indeed safe, and “there is no decision to change the prime minister”. He was responding to a report in weekly Sieci Prawdy that Beata Szydło would be removed so she could “rest” before standing for a seat in the European Parliament, and that she would be replaced as prime minister by Jarosław Kaczyński, a move which would not be without precedent.

Gowin dismissed the Sieci Prawdy report as a “rumour”. He said that although there would be a mid-term assessment of the government’s performance after which some changes might be made, suggestions that decisions had already been taken were “made up”. Another deputy prime minister, finance and development minister Mateusz Morawiecki, was more circumspect. “This is not a question for me. I am just a deputy prime minister”, he said.

Be that as it may, another weekly, another prime minister who may or may not be safe, this time former prime minister and President of the European Council, Donald Tusk. According to weekly Do Rzeczy, Tusk may have acted against Poland’s interests by allowing Russia to conduct an investigation into the crash of the presidential plane at Smolensk in 2010. Its claim that Tusk needlessly “handed over” the investigation to Russia is based on a study the magazine claims was commissioned in 2011.

According to Do Rzeczy the study by law firm K & L Gates, commissioned by the then prime minister’s office, found that Poland was not required to apply an annex to the Chicago Convention on International Civil Aviation requiring it to hand over the conduct of the investigation of the crash to Russia. The magazine said that the study, mentioned in a note dated 19th September 2011 and sent by Tomasz Arabski, head of the prime minister’s office under Tusk, to the Warsaw district prosecutor’s office, was among new documents it had accessed. These documents form part of evidence collected during a continuing investigation into suspected “diplomatic treason” that is being conducted alongside an investigation into the causes of the crash.

Official reports by the Russian authorities and Poland’s previous government concluded the crash was an accident. The Polish report cited a catalogue of errors on the Polish side, while also pointing to errors made by Russian staff at the control tower of Smolensk Military Airport. The Russian report placed all the blame on the Polish side. Needless to say, on PiS forming the government in October 2015 a new investigation was launched. PiS deputies concluded in 2014 that the aeroplane had been brought down by an explosion, a claim which is regularly repeated, and for which, despite periodic announcements that it will soon be forthcoming, the evidence has yet to appear.

This almost cult-like devotion to the belief that an alliance of sinister forces – in this case a political opponent and the ever, in some eyes, malevolent Russians – must be to blame for the crash is wholly political and appeals, it seems, to only the most enthusiastic of PiS supporters. It is sad that this Pol Pottist “Year Zero” approach to the Smolensk crash seems to have obscured the memory of the Katyń murders, the commemoration of which was the reason for the flight in the first place. And no doubt the irony is also lost on those who, while so quick to condemn brother Putin and all his works, are quite happy when it suits them to adopt some of his methods. But there again, as Phaedrus also reminds us: “Things are not always as they seem; the first appearance deceives many.”

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More Money

“A little thought and a little kindness are often worth more than a great deal of money.” The words of John Ruskin which spring to mind when one contemplates the plight of Poland’s doctors. Doctors generally show thought and kindness – otherwise why join a profession dedicated to helping others – but even they cannot live on kindness alone. And thus the demonstrations held in several large cities in Poland on Saturday in support of resident doctors on hunger strike.

The dispute with the government is about pay, working conditions and healthcare funding. Doctors complain that newly qualified residents earn as little as 2,275 zloty a month after tax and have to work an average of 65 hours a week. Negotiations with the government took place last week, but the meetings with Prime Minister Beata Szydło, Health Minister Konstanty Radziwiłł and Beata Kempa, head of the Prime Minister’s Office, have brought no breakthrough. Those protesting in Warsaw outside the prime minister’s office at the weekend submitted a list of demands.

Despite Poland’s continuing economic progress, the public healthcare sector is in need of improvement. Łukasz Jankowski from the OZZL medical practitioners’ union said: “This is a historic moment for us as Poland is enjoying economic prosperity, good macroeconomic conditions and, most of all, we see a declared will to come to an agreement on the authorities’ part, as well as determination to improve the situation in the country’s healthcare system.”

Of course, everybody would like to see more spent on healthcare and, as the NHS in the UK demonstrates, it is difficult to make finite resources met ever increasing demand. However, the position in Poland is particularly serious. Doctors are expensive to train and are eminently employable anywhere, which given the low salaries of doctors here, means there is a danger of large numbers simply leaving Poland, or leaving the profession. Good news, for example, for the NHS which seems to have an insatiable demand for doctors from abroad, Brexit or no Brexit, driven in part by successive UK governments’ limiting the number of places at UK medical schools irrespective of NHS needs.

Indeed, anecdotally, one of my friends who is a doctor, is in exactly this position. Talented and dedicated she works long shifts at more than one hospital – often for 24 hours at a time – and finds the current system frustrating. Exactly the sort of doctor one needs and, given her qualifications and experience, exactly the sort of doctor who would be welcomed with open arms elsewhere.

Be that as it may, whatever the official government response, state broadcaster TVP has decided that sharing information from some of the protestors’ Facebook profiles under an article entitled: They complain about earnings but they eat caviar canapés. As with all hatchet jobs, this relies on taking information out of context. So, for example, photographs are shown of one of the protest leaders in exotic locations such as Tanzania and Kurdistan without mentioning that she was there as volunteer with a medical charity to help in a local hospital, as was actually reported on state radio at the time.

It would be wrong to blame the present government for the state of Poland’s health service, which is the result of many years of relative neglect, but since this government is presiding over a strong economy, one ,might have thought something could be done or, if not done at least started. Instead, one is left with the, no doubt mistaken, impression that doctors, as highly educated and intelligent folk, are somehow not seen as PiS’s core supporters and therefore may be denigrated.

This comes at the same times as Polish Higher Education and Science Minister Jarosław Gowin has appealed for tertiary education spending to be raised to from 0.44 to one per cent of GDP. Speaking at an event to inaugurate the new academic year at the catholic University of Lublin, Gowin said that Poland was trailing at the tail end of the European Union in terms of higher education and science spending, and that raising spending would improve the quality of education and research. He also pointed out that, since Poland joined the European Union in 2004, paving the way for free movement, one in four of roughly 120,000 Polish scientists had decided to go abroad. “This cannot go on, we need change,” Gowin said.

Quite. Of course, doctors are scientists too, and since a well-educated, healthy population is essential if a country is to achieve its potential, perhaps the government might start to see how it might retain the scientists and doctors that it has.

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Future

“We are made wise not by the recollection of our past, but by the responsibility for our future.” The words of George Bernard Shaw which might, perhaps, have been in the mind of Poland’s President Duda, as he contemplates the continuing arguments over reform of the judiciary.

Indeed, for the president, these arguments have assumed great importance. Duda has described his continuing dispute with Justice Minister Ziobro over judicial reforms as “a dispute over the future of the country, the future of my compatriots.” Speaking in an interview for weekly Do Rzeczy, Duda said that it was “not the Law and Justice [(PiS)] community” that was attacking him, but “one of the coalition partners of PiS”. This is an apparent reference to the United Poland party, a socially conservative party headed by Ziobro that forms the government of Beata Szydło together with PiS, and the Poland Together group led by Deputy Prime Minister and Science and Higher Education Minister Jarosław Gowin.

Duda, who is originally from the PiS party, suggested that after the elections in 2011, Ziobro “betrayed Law and Justice” and aimed to break up the party and its parliamentary caucus. Duda also said: “This is not about Minister X or Minister Y, but about every justice minister who is prosecutor-general at the same time and who in my opinion should not have as much power over the Supreme Court as the law passed by parliament would have given him.”

And that is the key point which has been the concern throughout this dispute, the extent to which an individual should be in a position to exercise influence over the judiciary, especially when that person is a politician. By definition, a politician takes a partisan view of most things and it would be expecting super human qualities of a type hitherto unknown, for an elected politician anywhere, to be able to resist the temptation to interfere for political advantage when presented with such power. Which is why, of course, in most established democracies the separation of powers, or the rule of law, or both, have been seen as the only ways of safeguarding citizens’ rights and freedoms.

For his part, the party leader Jarosław Kaczyński, when asked to comment on the dispute said that he “does not want to deal with generational disputes between 40-year-olds” which, one might think, is a rather dismissive approach to such an important issue, and that he would not agree to superficial changes in the country’s justice system. He did admit that there were tensions between the government and the president following the latter’s veto – which veto probably became inevitable following Kaczyński’s outburst in parliament blaming opposition deputies for his twin brother’s death – in July of two out of three controversial government backed bills which would have given politicians wide powers over the appointment and dismissal of judges.

In response, President Duda last month put forward his own proposals for reorganising the country’s Supreme Court and the National Council of the Judiciary (KRS), which reviews and assesses candidates for appointment as judges. Under these proposals, members of the Supreme Court would retire at age of 65 with the ability to apply to the president for an extension, and not be retired at once as PiS had wanted, and which particularly concerned the European Commission in relation to Article 7 proceedings. In addition, members of the KRS would be elected by parliament with a three-fifths majority. There would be a “safety mechanism” to ensure continuity for the KRS in case parliament failed to muster such a majority. This would be allow the president to select candidates for the KRS if the lower house of parliament, the Sejm, failed to elect such judges within two months. Such a proposal would require a change to Poland’s constitution, something that the president also proposed.

Which brings the argument full circle. To amend Poland’s constitution requires two-thirds majority in parliament, something PiS does not have, hence the procedural shenanigans with the composition and function of the constitutional tribunal which began this saga after PiS’s assumption of government two years ago, an attempt to bring about a de facto if not de jure change to the constitution.

It remains to be seen how the president’s proposals are treated following the consultation period but, at least the judicial power grab by PiS has not quite succeeded so far and there is an opportunity, perhaps, for wiser counsel to prevail. It cannot be emphasised enough how fundamental to the rule of law is judicial independence and we do well, no pun intended, to remember the words of Aristotle: “At his best, man is the noblest of all animals; separated from law and justice he is the worst.”

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Progress

“Without continual growth and progress, such words as improvement, achievement, and success have no meaning.” The words of Benjamin Franklin. And since governments are ever keen to boast of continual growth and progress, one might ask how much economic progress there is in Poland against the backdrop of concerns in some quarters about the rule of law.

One sign of progress is that index compiler FTSE Russell has upgraded Poland’s status from an emerging market to a developed market. This decision means that Poland “has joined the 25 most developed economies of the world,” including Germany, France, Japan, Australia and the United States, according to the Warsaw Stock Exchange in a press release issued on Saturday. It added that Poland is the first Central and Eastern European economy to have been upgraded by FTSE Russell to developed market status. This upgrade “represents an acknowledgement of the progress of the Polish economy” and of the country’s capital market, the WSE’s chief executive officer, Marek Dietl, was quoted as saying.

Like many things in life, this upgrade does have the potential to be a mixed blessing. As Bloomberg reports, while generally positive, one negative effect could arise from developing-market funds being obliged to sell more than PLN 1 billion worth of shares. The real impact is uncertain and will take time to become apparent as the market opens to new types of funds. For his part, Dietl believes that “the dynamic development of the Polish economy represents an opportunity for international investors”, and “Poland’s upgrade to developed market status is a challenge, which we are ready to face.”

Whether there will be enough developed-market funds to replace those tracking Warsaw-listed stocks as an emerging-market asset is not clear. While the upgrade potentially offers exposure to a larger pool of investors which could help Polish companies already expanding in western markets, allowing them to gain recognition among a new group of investors and help them to fund growth, other companies may find the going tougher, especially if they are too small to attract the interest of those funds focussing on developed markets.

Be that as it may, it is perhaps ironic that the upgrade, reflecting the maturity of the market, comes at a time when the Polish government is challenging the western democratic values it adopted following the collapse of communism, when the European Union threatens sanctions against Poland for eroding of the rule of law, and the US government this week called on the government to respect judicial independence by ensuring that any changes are in accordance with Poland’s constitution.

And what of the impact of political risk? Paul P Psaila, New York- based managing director at Morgan Stanley Investment Management said in an interview shortly before the he upgrade that “Polish political risk is a more important topic for foreign direct investment types than it is for equity funds right now.” “Robust growth and the availability of companies that are becoming leaders for the whole region are things that investors cannot reject, especially as politics is a problem in many other emerging countries, not to mention developed ones.”

Moving away from the stock market, the investment position appears rosy with finance minister Mateusz Morawiecki announcing that investment grew by between 4 and 5 per cent in the third quarter of this year up from 0.8 per cent in the second quarter. He is predicting investment growth of between 8 and 9 per cent in the fourth quarter. Next year investment is expected to grow at a similar rate as in 2017 or “even faster,” Morawiecki told reporters on Thursday. He also said that the country’s GDP growth this year was well on track to exceed the government’s projection of 3.6 percent. Last month ratings agency Moody’s upgrade its GDP growth forecast for Poland to 4.3 per cent from an earlier projection of 3.2 per cent

Which no doubt explains why the government remains well ahead in the opinion polls. Its policies – especially the child benefit programme – and the more than doubling of the tax free threshold for income tax have had a positive benefit and have been enormously popular. Furthermore, the suggestion that the government’s campaign promises would be unaffordable have not been borne out so far, with growth up and unemployment down. There are some clouds on the horizon, and the decision to lower the retirement age will be a drain on public finances, but an apparently disorganised opposition seems unable to offer a credible alternative. Which is not to endorse the “prosperity before freedom” approach as the right path for Poland, so much as to show that it has been an effective strategy for PiS thus far, enabling the party to point to its success in delivering improvement to many.

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Listening

“I like to listen. I have learned a great deal from listening carefully. Most people never listen.” The words of Ernest Hemingway, which women would say apply to most men and which the rest of us would say apply to most politicians. Thus the electoral success across Europe over recent year of those parties which the soi disant liberal elites tend to think of as beyond the pale while failing to recognize the dangers posed by their ignoring the legitimate concerns of those less able to buy their way out of the chaos their preferred policies inflict on others.

Thus to the results of the German elections where large numbers of voters did not listen to her message to stick with the centre parties. Although returned for a fourth term as Chancellor, Mrs. Merkel saw her CDU/CSU party’s share of the vote drop from the 41.5 per cent won last time to 33 per cent. Her erstwhile coalition partner, the SPD, recorded its worst post-war performance at 21 per cent, while the populist AfD became the third largest party on 13 per cent.

It’s an ill wind that blows nobody no good, and Poland’s Interior Minister, Mariusz Błaszczak, said that he hopes this weaker than expected election result will prompt the German Chancellor to learn her lesson from the opening of national borders o waves of refugees. Speaking to Polish state broadcaster TVP on Sunday evening: “The high, 13% support for the AfD party shows that if only common sense wins out, this policy [on migrants] should change. But we can’t be certain this will happen of course.”

For its part, the Polish government is maintaining its stance against the EU scheme to resettle refuges. Despite congratulating Angela Merkel on her election win, “I wish … to congratulate you personally and the party which you head… I am certain that the future coalition, under your leadership, will serve German citizens, European integration and strengthening good ties with Poland, ”Polish prime minister Beata Szydło had last week told Catholic broadcaster Trwam that the European Commission was trying to bully Poland. But “bullying will get us nowhere,” Szydło said, adding that Poland was trying to ensure the European Union remained united and safe.

Szydło said the European Union is trying to force Poland to accept its resettlement policy, but that she would not bend to pressures, because to do so would pose a risk to Poland’s security. It is, of course, no answer to point out that most Poles in Poland are in more danger from other drivers than terrorists posing as refugees. She added that almost none of the European Union’s member states have met their obligations under the relocation programme. The prime minister has previously said that relocating so few people was not a solution to the problem. Rather Poland was supporting those in need by increasing humanitarian aid to the victims of the war in Syria and by working with aid organisations to rebuild hospitals. In her view, aid is both cheaper and more effective, while the current EU migration policy had not halted the flow of migrants to Europe.

Polish officials have said that migrants were not interested in remaining in Poland, Hungary or the Czech Republic – the countries against which the Commission is beginning proceedings – but wished to go to richer countries. Polish President Andrzej Duda has said the European Union plan smacks of forced relocation, something that has strong negative connotations in Poland, given the numerous mass deportations from Poland during its periods of foreign occupation during the last century.

And since, as has been written here before, there seems an inability or unwillingness to distinguish between refugees in immediate danger and need of assistance and those seeking better life, the government’s approach is not illogical. Besides, whatever else it might be accused of, failing to listen appears not be it.

According to a new survey by pollster Estymator, conducted on 21-22 September on a representative sample of 1,009 Polish adults, the governing Law and Justice party is backed by 40.4 percent of voters with opposition Civic Platform on 22.6 per cent. The anti-establishment Kukiz’15 group is third on 9.8 per cent, and the Modern party is fourth on 8.9 per cent. On top of which, in a new poll by CBOS, president Duda is the most trusted politician on 74 per cent with e prime minister ranked second on 57 per cent. Of course, listening is one thing, how best to react to what one hears quite another.

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Reform

“Each generation doubtless feels called upon to reform the world. Mine knows that it will not reform it, but its task is perhaps even greater. It consists in preventing the world from destroying itself.” The words of French philosopher Albert Camus which still ring true today, two generations later. And it is with the former, rather than saving the world, in mind that Polish Foreign Minister Witold Waszczykowski attended a meeting of world leaders in New York on Monday to discuss ways of reforming the United Nations.

The meeting will be chaired by US President Donald Trump who, during his election campaign, criticised the UN as an inefficient and expensive institution. After assuming office, the Trump administration came up with a plan to increase the effectiveness of the UN, including limiting the UN’s budget. According to US Ambassador to the UN Nikki Haley, more than 120 countries have supported the proposed reforms, including Poland.

The Polish foreign minister is, however, sceptical about whether it will be possible to reform the UN Security Council. “A debate has been in progress for many years on whether the five permanent members of the Security Council are representative enough of the international community. Unfortunately, these five countries are blocking reforms in this area” Waszczykowski said. Poland will become one of the elected members of the security council next year, success in that election being one of the objectives of Waszczykowski’s visit to the UN last year, when he announced that he had enlisted the support of a number of countries, including Sam Escobar whose greatest diplomatic triumph, like that of Satan, is to have convinced the world it doesn’t exist.

Be that as it may, Waszczykowski’s busy schedule included attending on Friday, coincidentally the International Day of Democracy, a meeting of the 30 member governing council of the Community of Democracies, an international body of over 100 countries, founded by the United States and Poland in 2000 as an organisation to sustain and strengthen democratic values, and having its permanent secretariat in Warsaw. Waszczykowski welcomed US Secretary of State’s Tillerson’s “many references to Poland, to Warsaw, to history and to President Trump’s visit to Warsaw” in his opening speech. Waszczykowski also announced that Poland was awarded the honour to hold a half-year presidency of the CoD in 2019, and would host a meeting of the governing council. Tillerson and the newly-appointed COD Secretary General, Thomas Garrett, praised Poland’s commitment to the CoD, albeit not, on current form at least the malcontents might argue, completely to the ideals it represents.

The meeting discussed Venezuela, North Korea, Iran, and the role of democracy in counteracting terrorism. And it was in relation to the current threats to regional and global security posed by North Korea – which could certainly lead to the world destroying itself if folk start firing off nuclear weapons hither and yon – that Waszczykowski made his most significant contribution. He stressed that Poland is in a unique situation as “one of seven or eight EU countries to have an embassy in Pyongyang and the Democratic People’s Republic of Korea having its representation in Warsaw”. As a result, in his view, Poland may act as a channel of communication between the parties, adding, however, that the key to solving the problem of North Korea lies in China.

While some uncharitable folk might question whether, in an ideal world, you would allow either Donald Trump or Kim Jong-un anywhere near nuclear weapons (at least the former is surrounded by sensible advisers) this seems to be exactly the stable environment in which the delicate, deft diplomatic touch of Poland might usefully be deployed. From relations with the EU over the rule of law, and logging in a primeval forest, through to the question of German war reparations, there has been nothing quite like Poland’s conciliatory diplomacy.

Cynics will no doubt disagree, but extraordinary times call for extraordinary measures and extraordinary men, and here foreign minister Waszczykowski and his colleagues come into their own. It may well be, as in the film Argo, that “this is the best bad idea we have by far”, but the execution of that plan had a happy ending against the odds, and so might this. After all, what could possibly go wrong?

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Justice

“Justice in the life of the state is possible only as first it resides in the hearts and souls of the citizens.” The words of Plato, and whatever feelings of justice may reside on the hearts and souls of Polish citizens, for the Polish prime minister the state’s justice system is in need of extensive reforms.

Beata Szydło was speaking on Friday at the launch of a campaign to inform the public of those changes to the country’s judiciary which the government believes to be indispensable. The campaign is entitled “Justice” and will be run in Poland and abroad by the Polish National Foundation, an organisation set up by 17 state-owned companies that aims to promote Poland internationally, whose head, Cezary Jurkiewicz, told reporters that, despite claims by critics, the campaign was “purely informational” and neither political nor designed to promote the view of a single political party.

The campaign is designed to show people “just how dysfunctional the Polish justice administration system is,” Szydło said, arguing that the legal changes were “expected by the Polish people.” “We do not want things to be the way they used to be; we want them to be different. And ‘different’ means that the Polish justice system should serve citizens,” Szydło said. Continuing her argument, she said that the campaign was needed in order to counter “information disseminated among the public, especially abroad, that the changes in the Polish judiciary are undemocratic.” According to the prime minister, this kind of message discredits Poland on the international arena.

It might be argued that there is a hint of shoot the messengerism at work here, since the changes thus far proposed have caused no little concern internationally, including the Venice Commission, European Parliament, and have caused the EU Commission to begin rule of law proceedings against Poland. Even Poland’s own president felt compelled in July to veto two of the three government backed bills to reform the judicial system, reforms which the opposition claimed were a threat to the rule of law, not least by the extensive power given to the minister of justice and chief prosecutor over the selection of judges. And that is to say nothing of the other spats with which Poland is engaged with the EU, nor the question of German war reparations, none of which, in the way they have been handled, do much to enhance Poland’s reputation.

For his part the Law and Justice party leader, Jarosław Kaczyński, at the time described the president’s decision to veto those bills as a “serious mistake”. He said that judicial reform was vital, adding that the Polish courts were “sick” and “sick courts means a sick society.” The difficulty in the eyes of some, of course, being that the proposed cure seemed rather worse than the disease, although not in the eyes of the party leader with his unique insight into the health of society. A theme which no doubt figured in a meeting on Friday evening between the president and Kaczyński to discuss judicial reform.

President Duda supports “a real reform” of the judiciary, his spokesman, Krzysztof Łapiński, told reporters after the talks, adding that the president also said he hoped his proposals for reorganising the country’s Supreme Court and the National Council of the Judiciary would be supported by the legislature. Duda “offered assurances” that the judicial proposals he had undertaken to draft would be fully “in line with the constitution” and “free from the flaws that the president previously identified in his vetoes,” Łapiński said. For her part, Law and Justice party’s spokeswoman, Beata Mazurek, said that the Duda-Kaczyński meeting focused on the president’s proposals for judicial changes and took place “in a very good atmosphere”.

Nobody would deny that Poland’s judicial system could be improved. Cases take far too long to make their way through the courts, something which could be vastly improved by the relatively simple step of improving timetabling and setting down cases for hearing in blocks of consecutive days rather than having individual hearing days held months apart. Similarly, if individual judges are thought to be corrupt, bring forward evidence and remove those who are adjudged guilty. But the problem with what has been proposed hitherto is that it involved a greater degree of political control over the appointment of judges and concentrated more power in the hands of the justice minister, than is generally considered to be prudent. Of course, if one believes that politicians, of any party, anywhere, are to be trusted to exercise divine standards of impartiality and wisdom, there is nothing to fear. But since this side of heaven lesser standards apply, so safeguards for justice are required. And judicial independence is one of those.

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Dictator

“Every dictator is an enemy of freedom, an opponent of law.” The words of Demosthenes, which no doubt the Polish prime minister, Beata Szydło, had in mind as she delivered her latest broadside against the European Union, with dictatorship and law very much on her mind. She said that Poland insists on compliance with EU treaties and does not accept being dictated to by the larger EU member states. Both German Chancellor Merkel and French President Macron have recently criticised the Polish government both as regards the rule of law and what they see as Poland’s failure to cooperate over migrants.

In an interview with weekly magazine Sieci, the prime minister spoke about the pressure in Poland from the EU to accept migrants under the EU to resettle those currently in Italy and Greece. “”We cannot be blackmailed that we will lose part of our EU funds as punishment because we do not accept the compulsory relocation of immigrants from North Africa and the Middle East,” she said. “EU funds, cohesion policy are as much a pillar of the European Union as the freedom of movement of goods and services – we are simply entitled to them,” the prime minister continued. Thus “Poland is insisting on compliance with EU treaties and we do not accept being dictated to by the largest states,” she said.

Poland has strong arguments in its favour, according to Szydło. “We want to be in the EU, we value it and that is why we have the right to press for respecting the rules, for a truly common market, for security, for development,” she said. The prime minister also said that claims that the government wished to take Poland out of the EU are “the lie of all lies, a terrible manipulation”.

And she may well have a point. Leaving aside the wishes of the migrants themselves, many of whom would doubtless prefer to be in Germany or elsewhere, if past experience of re-settlement is anything to go by, it is not clear that the current treaties would legally allow cohesion funds to be withheld in this way. It may well be a desirable policy, and it is understandable that those member states that have done their bit feel somewhat aggrieved by the attitude of the Polish government, but the law is the law. After all, is it not the EU that is so critical of Poland for deviating, as it sees it, from the rule of law? Of course, being somewhat inclined to miss the wood for the trees (those it hasn’t cut down at least), the government’s riposte was not phrased in those terms.

Meanwhile, Poland’s foreign minister does seem keen to engage with Germany, suggesting on Monday that both countries “should sit down for serious talks” in order together to find a way “to deal with the fact that German-Polish relations are overshadowed by the German aggression of 1939 and unresolved post-war issues.” Speaking on radio RMF FM, Witold Waszczykowski said the issue had been left neglected for 70 odd years.

While the issue of reparations “is beyond dispute morally,” Waszczykowski said, “in legal terms, the matter is ambiguous for various reasons, because there was no conclusion in terms of a peace conference with Germany or a peace treaty, but also because of the meanders of our history.” Waszczykowski also said that the government in Warsaw was still “preparing” its official position on reparations. He did not say when a final decision could be expected, but suggested the material losses alone were close to USD 1 trillion.

Waszczykowski has previously said that opposition in Poland to raising the issue of reparations for World War II is a barrier to potential negotiations with Germany. In fact, in a resolution adopted in 1953, Poland’s then communist government recognised that Germany had fulfilled its obligations regarding Poland and decided not seek compensation payments. The government’s view appears to be that decisions made by the communist-era authorities are not necessarily still valid because they were made under pressure from the then Soviet Union.

To many it might come as surprise to be told – indeed, it seems only to have become an issue in the eyes of the current government – that Polish-German relations are so overshadowed, especially given Poland’s entry to EU membership, into which Germany is the largest payer. Apart from the great benefit Poland has derived being the largest recipient of EU funds, the considerable German investment in Poland has had a significant impact. Therefore, this talk of reparations is at best a distraction for domestic consumption, at worst rather clumsy diplomacy. But since Poland will not, as she sees it, be dictated to, we may expect more of the same.

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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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