Nicholas Richardson
News

Reinstatement

“What is it that makes us trust our judges? Their independence in office and manner of appointment.” The words of John Marshall, Chief Justice of the United States from 1801 to 1835, the longest serving Chief justice in Supreme court history and one of the most influential. And the appointment, or retirement, of judges to Poland’s supreme court, albeit a court of a different function, is the latest battle ground in the continuing conflict between the EU and Poland over the rule of law and what is seen by many as a political attempt to fetter judicial independence.

On Friday the European Court of Justice (ECJ) issued an injunction ordering Poland to suspend the reforms that brought about the early retirement of the judges. On Monday ten of those forced into retirement returned to work, including Malgorzata Gersdorf, the supreme court president, who urged remaining judges to return. A spokesman for the court said they were expected to do so this week.

The ruling Law and Justice party has yet to decide its response but the initial stance of party leader, Jaroslaw Kaczynski, was that Poland would appeal against the decision. On Monday the foreign minister Jacek Czaputowicz said that some judges could return to work and acknowledged that changes to the law would be needed to implement the ECJ decision. However, Stanislaw Piotrowicz, a Law and Justice member of parliament, said that he “did not think that Poland would have to amend anything”. No change there.

For his part, the Polish prime minister, Mateusz Morawiecki, responded to Friday’s ruling by saying: “After analysing this, we will address this.” The Polish government has consistently insisted that it has the right to carry out the reforms which it says are needed to deal with, in its view, an inefficient and sometimes corrupt judicial system which is tainted by the communist past. It has accused judges of being an elite, self-serving clique often out of touch with the problems of ordinary citizens.

Meanwhile, the justice minister, Zbigniew Ziobro, has said that he would like Poland’s Constitutional Tribunal to examine whether lower Polish courts may ask the ECJ for guidance on issues not covered by European law.  This came some days before last weekend’s local elections, and led to claims from the opposition that this represented an attempt to bring about Poland’s exit from the EU. “It is not true that my request was an attempt to have Poland leave the European Union,” Ziobro said on Wednesday. Although Kaczyński, said the application of the Polish constitution, and how it was affected by EU regulations, needed to be made clear, he also denied plans to leave the EU.

Cynics will no doubt be amused at the idea of the minister of justice and chief prosecutor – the latter a post which the Polish constitution provides shall not be held by a member of parliament – referring this matter to the constitutional tribunal, the changes to which body started off the conflict with EU in the first place. Again, this illustrates the potential conflict of interest when politicians, however well-meaning, have the power to influence the appointment and way of working of the judiciary.

Be that as it may, not everybody sees democracy as under threat in Poland. According to Cardinal Gerhard Mueller from Germany, no country has the right to lecture to Poland on the principles of democracy because Poland has done the most to maintain democracy in Europe. Speaking at an international conference in Poland, Cardinal Mueller said on Thursday that “no nation can be a teacher of others in Europe” and that “no European institution can impose its values on others,” Poland’s dziennik.pl reported.

The cardinal, who served as the Church’s Prefect of the Congregation for the Doctrine of the Faith from 2012 to 2017, told the conference that “there is a continuing attack on countries that are working to re-Christianise the continent”. Such “attacks” are being driven by “Marxist ideology,” which “denies all those principles that lay at the foundation of Europe,” he was quoted as saying.

In the cardinal’s view, Poland was being targeted through actions such as “teaching Poland about the principles of democracy,” while “Poland is the European country which has done the most for democracy, for freedom, for the self-determination of the nation, for the dignity of the human being.” Referring to the 123 years from partition until independence in 1918, he said: “Poland was divided, there were partitions, but the Polish soul was not affected. Today’s attack on Poland is worse because back then only the body was torn apart. Today the aim is to deal a deadly blow to the Polish soul.”

Not everyone will agree with his analysis, of course, but it will no doubt come as a comfort to the Polish government to have the support of such an eminent cardinal whose message, as reported here in Giftchimes with the prime minister’s words that Poland’s tradition of solidarity was the country’s gift to Europe.

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Brexit

“Affairs are easier of entrance than of exit; and it is but common prudence to see our way out before we venture in.” The words of Aesop which have stood the test of over two millennia. A way out of the European Union (or European Economic Community as it was then) was not see by any one at the time the United Kingdom joined in 1973, and a formal exit process was introduced only in 2009 with article 50 of the Treaty of European Union. That article 50 is by far from clear is apparent as the UK seeks to find a deal following its exit from the EU which, barring any dramatic developments, will take place on 29thMarch next year.

Whatever Brexit may mean for the UK, obtaining the right deal is important for Poland given both the trade links and the large number of Poles in the UK, whose continuing rights Poland is keen to protect. To this end, Poland’s prime minister met the European Union’s chief Brexit negotiator on Friday for talks about the UK’s impending departure. The prime minister, Mateusz Morawiecki, said via Twitter that the talk with Michel Barnier was “good”, and Barnier called the meeting constructive.

Ahead of that meeting, government spokeswoman Joanna Kopcińska had said that Poland wanted to protect Polish exports to the UK and to ensure that Poles living in the UK keep their rights after UK leaves the EU. She said that Poland wished to convince Barnier that a deal with the UK was possible and that to listen to those who said otherwise was not worthwhile. Of course, a deal is possible, but the EU and the UK have differing objectives: the latter to find a deal which gives effect to a democratic decision, the former, pace Voltaire, pour discourager les autres.

Whether one is pro or anti Brexit, none would claim that the current position is ideal for anybody. The UK, logically, is keen for an exit deal to include an agreement on future EU-UK arrangements, which is what article 50 envisages, whereas the EU has taken a different negotiating stance in dealing with the issues separately. If no deal is agreed – which seems unlikely since it benefits neither party – customs and border controls would return, with trade being carried on under World Trade Organisation rules. And for those who think this would be acceptable, only one country does so – Mauritania, which has a GDP of $4,714million (0.2% of the UK’s), and 50% of whose exports consist of iron ore.  I have been to Mauritania and, however delightful the heat and dust of the Sahara may be, this is hardly a model for UK trade arrangements.

All of which leaves us with a puzzle – how did we end up here? A full discussion of the reasons is beyond this piece, but a mistaken perception of reality is the main culprit. Those voting in the referendum to leave EU did so for a wide variety of reasons, from genuinely held convictions in areas such as democratic accountability, and economics, to those who used the referendum as a protest vote against the government for all sorts of perceived ills, not necessarily all attributable to EU membership. This has left the government struggling to give effect to a democratic decision while trying to obtain a deal for the economy that cannot, in the immediate future, be better than the current one.

The UK market is already one of the most open in the EU and, indeed, the world (meaning it has proportionately less to offer in new trade deals), which is why so many EU citizens, especially Poles, chose to take advantage of the opportunities it offers. One can hardly blame the EU for the UK government’s failure to utilise the mechanism which all EU member states have to control immigration if, as seems to have been the case, immigration was an issue in the referendum. Nor can the EU be blamed for non-EU immigration which appears similarly chaotic.

It is no accident that as successive UK governments have reduced the role of the Foreign and Commonwealth Office, we are witnessing the casual abandonment of five hundred years of consistent foreign policy. It is simply not an option for the UK not to be closely involved in what happens on its doorstep. With suitable engagement, all the perceived problems could have been solved and, far from losing sovereignty, the UK could have used the EU to expand British interests, for example with the single market, as many in continental Europe believe it did anyway. Alas, as Edward de Bono said: Logic will never change emotion or perception.

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Restitution

“As for restitutions, to nobody in particular do I owe any, but as for those I owe to the realm, I hope in the mercy of God.” The words of Louis XIV, the passing of the glories of whose reign one feels France still regrets, revolution or no revolution. Be that as it may, the mercy of God may well be needed, for restitutions owed, if not to the realm, but to the city of Warsaw, with news that nine more individuals have been charged in a continuing investigation into a property restitution scandal in Warsaw.

Poland’s justice minister, Zbigniew Ziobro, who also happens to be the country’s prosecutor general, told reporters on Monday that the charges included suspected corruption amounting to some PLN 50 million (EUR 11.58 million, USD 13.32 million) arising from the individuals’ attempt to take possession of real estate in Warsaw by unlawful means. Prosecutor Michał Ostrowski said that a former Warsaw City Hall official who was a deputy director in charge of real estate management was among those indicted, alongside three lawyers and a former ministry of justice employee.

In many parts of the world, the intersection of real estate and local government provides a potentially rich seam of corrupt activity, from land acquisition to planning, and Warsaw, if these allegations prove to be correct, is no exception. Indeed, according to a report of a special parliamentary commission released on Monday, less than two weeks before local government elections, the losses to Warsaw stand at some PLN 12.2 billion (EUR 3.25 billion, USD 3.25 billion) in property unlawfully returned to private owners. The total value of property that reverted into private hands in Warsaw had exceeded PLN 21.5 billion by 2016.

As reported by Polish Radio’s IAR news agency, the head of the commission, Patryk Jaki, a deputy justice minister who is also running for mayor of Warsaw in the upcoming elections, said that property restitution in Warsaw after 1989 was often “criminal in nature” and marred by corruption and the existence of a “reprivatisation mafia”. Last December, Poland’s Central Anti-Corruption Bureau (CAB) detained three Warsaw City Hall officials suspected of accepting bribes in exchange for approving property restitution and compensation claims.

The special parliamentary commission began last year to investigate the scandal over the restitution of real estate in Warsaw that has already seen the dismissal of several officials at Warsaw City Hall and calls for the mayor, Hanna Gronkiewicz-Waltz, to resign. The commission aims to either uphold the restitution decisions or to revoke them and decide that owners can be stripped of unlawfully obtained property.

Inevitably, the scandal has a political element. The Law and Justice government says that the commission has helped to address blatant cases of injustice amid allegations of a massive web of malpractice involving Warsaw City Hall officials, while opposition maintains that the commission encroaches on the powers of the courts. Gronkiewicz-Waltz, who has been the mayor of Warsaw since 2006, and who was once a leading figure in the opposition Civic Platform party, has refused to appear before the commission, arguing that it is unconstitutional.

The origins of the scandal date back to the seizure of property under the Bierut Decree from October 1945, named after former Polish communist leader Bolesław Bierut, which legalised the confiscation of private property. This led to thousands of buildings being taken from their owners. Since the fall of communism in 1989, it has been possible to submit claims for the return of such confiscated property although, absent specific legislation to deal with restitution claims, the process is far from straight forward. This, given the passage of time, also increases the scope for skulduggery by those so minded.

It seems that the scandal cannot simply be dismissed as political infighting. According to the CAB (last December) a total of 68 investigations were under way into suspected property restitution irregularities, involving some 200 addresses in Warsaw, most being valuable plots of land and residential buildings worth millions of zlotys. And the commission also examined the reprivatisation of a residential building at in Warsaw to which Gronkiewicz-Waltz’s husband acquired part of the rights in 2003.

Nevertheless, with the minister of justice and prosecutor general, and the head of the commission and candidate for mayor of Warsaw being in political opposition to the current mayor of Warsaw under whose watch much of the alleged corruption took place, there is a need to ensure the entire process is above board. This is a good example of why there is so much concern about the changes to the appointment of judges brought by this government. With a politician now having, short of great self-restraint, the ability potentially to influence the judicial process, it is more important than ever that not only must justice be done but it must be seen to be done – rather than be seen to be believed.

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Inclusive

“Smart, sustainable, inclusive growth is the key to job-creation and the future prosperity of Europe.” The words of Jose Manuel Barroso, former prime minister of Portugal and president of the European Commission who, one assumes, might have known although the words are as blindingly obvious as to merit no detour on the road to enlightenment. No matter, the Polish prime minister for one is happily presiding over a booming economy which is geared towards “inclusive growth” to create equitable opportunities for all, according to an opinion piece posted on the wsj.com website entitled Meet the Polish Tiger.

Mateusz Morawiecki wrote that Poland’s market economy is booming allowing the government to take care of the least fortunate.  “Poland recently became the first country in nearly a decade to graduate from emerging-market status and enter the ranks of the world’s developed economies.” Last Monday Poland had its capital market upgraded from emerging to developed market status by leading index provider FTSE Russell. Thus, the Polish capital market became the first in Central and Eastern Europe to join the ranks of developed markets such as the United States, Japan and Germany.

According to Morawiecki, “the distinction is the fruit of a long effort to build a flourishing market economy on the ruins of the communist system that the Solidarity movement helped topple in 1989.” Reprising a familiar theme, he said that while the economy as a whole prospered some people found themselves left behind as success “too often” depended on “connections, not hard work”. He also said that his government led by the Law and Justice party had “cracked down on rampant tax fraud and evasion,” increasing revenue from value-added tax by 26 per cent in just two years, assisted by enhanced enforcement and innovative digital tools.”

Morawiecki said Poland’s ruling conservatives had invested in healthcare, education and public works projects. “We have shown that helping the least fortunate isn’t incompatible with growth,” adding that Poland’s economy had expanded by more than ten per cent over the past two-and-a-half years, “the most among the top 10 EU economies.”

And the statistics do look good. Ratings agency Moody’s last month revised upward its forecast for Polish GDP growth this year to 5 percent,  projecting economic growth next year at 4.2 per cent. The Polish economy grew 5.1 per cent in the second quarter of this year, the country’s Central Statistical Office said in late August. According to Eurostat, Polish unemployment in August was the second lowest in the EU at 3.4 per cent, against the highest, in Greece at 19 per cent, and an EU average of 6.8 per cent.

So far so good, but the economy may slow according to Grzegorz Maliszewski, chief economist at Bank Millennium, who was speaking after Poland’s Purchasing Managers’ Index (PMI) hit a 23-month low of 50.5 points in September, according to Markit, a provider of financial information services. This was compared with analysts’ expectations 51.5 points, and a December figure of 55 points. According to Markit the Polish manufacturing sector was “close to being stagnant” in September, with the number of new orders shrinking for the first time since October 2016.

Be that as it may, thousands of police and other uniformed services took to the streets of Warsaw on Tuesday to demand higher pay and more favourable pension rules.Police officers, border guards, prison service employees, firefighters and others took part in the rally, during which protesters planned to petition the country’s president and prime minister with their demands. Deputy Interior and Administration Minister Jarosław Zieliński told Polish Radio 24 beforehand that the demonstration appeared to have been politically motivated. He said the government had increased the monthly pay of police officers by over PLN 1,100 (EUR 256, USD 295) on average since coming to power, and noted that protests over pay were not held when police wages were unchanged stayed put under the previous government led by the Civic Platform party.

And according to BIG InfoMonitor and the Credit Information Bureau, companies that collect data about debt, over 345,000 people aged 64 or over have failed to make payments on their loans, the PAP news agency reported. The average debt among people aged 64 or over stands at PLN 21,230, with many citing medical expenses as a reason for indebtedness, along with arrears of rent, telephone and utility bills.

So, there is still some way to go before everybody is included in Poland’s economic boom.  And as the economy’s period of catch-up draws to a close, and economic growth slows, those clouds on the horizon, demography, innovation, and skills will grow larger. Let’s hope the government is making hay while the sun shines.

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Gift

“A gift consists not in what is done or given, but in the intention of the giver or doer.” The words of Seneca, a Roman philosopher and writer of tragedies, who no doubt had in mind the words “timeo Danaos et dona ferentes” from Virgil’s Aenied, generally translated as: beware of Greeks bearing gifts. These words are at somewhat odds with the English proverb, never look a gift horse in the mouth, and had the Trojans taken Laocoön’s advice and done just that, Troy might have endured longer. Be that as it may, it is a gift of a different sort which occupied the thoughts of the Polish prime minister in Poznań on Thursday.

Mateusz Morawiecki opened the plenary session of the Council of the Bishops’ Conferences of Europe, attended by representatives from 45 countries, being held there by saying that Poland’s tradition of solidarity is the country’s gift to Europe. “Solidarity and freedom … is anchored in the teachings of the Church, in the great Christian tradition, the tradition of all of Europe,” he said. In the view of the prime minister, solidarity gave dignity to people in times of oppression. Speaking of Poland’s experience under two totalitarian regimes – the WWII-era fascism and the communism which followed – Morawiecki said that solidarity was Poland’s answer to those oppressive times.

And, famously, Solidarity was the name of the Church-backed anti-communist movement which emerged in Poland in the 1980s. Morawiecki said the Solidarity of the 1980s embodied values such as community, justice, and support of the weak which values, according to him, Poland continues to promote. He said that “solidarity is a Polish brand, the living incarnation of the Polish spirit … and our most valuable contribution … to the future of Europe”.

The Church had been, the prime minister noted, a refuge for Poles and Polish culture during periods when those were being suppressed, for example during the periods of partition and foreign rule which lasted for over a century. He reminded those present that this year Poland is celebrating a century since the end of those partitions, when Poland regained independence at the end of the First World War.

Leaving aside the cynicism which suggests that most expressions of solidarity are of as much practical use as expressing solidarity with the drowning man while staying safe and dry on the water’s edge, Polish solidarity is to be welcomed. There is no reason to fear Poles bearing gifts, although, inevitably, not everybody may expect to receive this gift in equal measure, although, with delightful lack of irony, it is freely expected of others.

Thus, the Polish government criticised Germany for allowing NGO head Lyudmyla Kozlovska to visit Berlin despite Poland putting her on a list of people barred from entering the EU, saying that “We would have expected Germany to show solidarity.” At the same time, Polish state-owned television allowed an academic to ask whether this meant Germany had “declared war” on Poland and resurrected the Molotov-Ribbentrop Pact.

Kozlovska’s name was added to the Schengen Information System after Poland’s Internal Security Agency rejected her application to reside in the European Union. Stanisław Żaryn, the spokesman for Poland’s special services coordinator, Mariusz Kamiński, said the agency had “serious doubts concerning the financing of the Open Dialogue Foundation, which is run by Ludmila Kozlovska”. In response she said the move was “Kamiński’s personal political revenge on my husband, Bartosz Kramek” who onet.pl reported, had been involved in “anti-government civic movements”.

Kozlovska also said that her deportation had complicated her plans to take part in the planned Bundestag conference, entitled: “Human rights under threat – the dismantling of the rule of law in Poland and Hungary”, but that she had been issued a special visa which allowed her to attend, onet.pl reported. According to Kozlovska, the Polish authorities consider her to be a threat to the Polish national interest, but she claims to be defending both Polish and European interests, which happen not to be in line with the interests of the Polish government.

Poland did however demonstrate solidarity with the Hungarian government on Wednesday when the EU parliament voted in favour of a motion to trigger Art. 7.1 of the Treaty on European Union against Hungary over rule of law concerns. Similar action was taken against Poland in December, at which time Hungarian Deputy Prime Minister Zsolt Semjen had vowed that his country would defend Poland against “unjust” and “political” measures by the EU. In aquid pro quo, Poland will “vote against any possible sanctions” that could be “imposed on Hungary within … European institutions,” the Polish foreign ministry said in a statement posted on its website.

Which is to say nothing of the EU’s frustration with Poland over the latter’s perceived lack of solidarity with those EU members, especially Greece and Italy, grappling with the influx of refugees from across the Mediterranean and Middle East. Or, indeed, with EU values such as the rule of law, judicial independence and so on. Perhaps Seneca was right after all.

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Never Freer

“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.

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Sustainable

“We need economic growth that is sustainable and job-rich rather than just statistically impressive.” The words of Guy Ryder, the current director-general of the International Labour Organisation. And, he’s right. As technology advances, the challenge will be to find useful employment for those whose jobs disappear.  Of course, ‘twas ever thus, particularly since the late eighteenth century when the handloom weavers were displaced by the machine powered looms in factories as the Industrial Revolution began. Sustainable economic growth, in the sense of continuing, is always welcome, although since nobody has yet succeeded in abolishing the economic cycle, it seems that peaks and troughs will still occur. But otherwise, the use of sustainable seems to have acquired some sort of totemic power – like putting the letter ibefore the name of products – because it seems fashionable rather than for any deeper meaning.

Whatever sustainable may actually mean, according to Poland’s prime minister, the path of growth of Poland’s economy has it, and is being increasingly driven by investment. Mateusz Morawiecki said, in an interview with the PAP news agency on Friday, that the economy was doing “increasingly well,” and that, “importantly and optimistically,” it was growing “in a sustainable manner.”GDP growth was “finally beginning to be” based on three pillars: investment, exports and consumption.

Poland’s Central Statistical Office (GUS) said in a flash estimate two weeks ago that the economy grew 5.1 per cent in the second quarter of this year. Last week GUS reported that capital expenditure by Polish companies in the first half of the year was PLN 54.4 billion (EUR 12.7 billion, USD 14.7 billion) some 10.3 percent higher than in the same period last year. There has been more investment in buildings, machinery, equipment and vehicles leading to the largest year-on-year rise in business investment being the highest since Poland’s ruling Law and Justice (PiS) party came to power in late 2015, the prime minister said.

This good news is reflected in Poland’s unemployment rate which GUS said on Friday was 5.9 per cent in July, unchanged from the June figure, the lowest in 28 years. There were 961,800 people registered as jobless at employment offices nationwide in July, down from 967,900 in June, according to the Central Statistical Office.

Public finances are also benefitting, with the budget deficit next year being forecast to be the lowest since 2009, Poland’s finance minister, Teresa Czerwińska said on Thursday. The government is working steadily to reduce the deficit, taking advantage of the positive economic trends. The budget deficit is forecast not to exceed PLN 28.5 billion (EUR 6.6 billion, USD 7.6 billion) in 2019, with a target for the general government deficit of 1.8 per cent of GDP. The preliminary draft budget assumes 3.8 per cent growth and inflation at 2.3 per cent.

All of which might help to explain, if one sets any store by opinion polls, why, according to a poll by CBOS, conducted between August 16 and 23 on a sample of 1,115 adult respondents, PiS is supported by 44 per cent of voters, with opposition Civic Platform (PO) trailing at 19 per cent. The Kukiz’15 grouping is third on 7 per cent, and the rural-based Polish People’s Party (PSL) is fourth on 5 percent. Other parties would fail to reach the 5 per cent threshold needed to gain seats in parliament under Poland’s electoral system.

Whatever one’s view of their politics, so far at least, the government has managed the economy well. Whether this is sustainable remains to be seen. The continuing concerns over the judicial changes – reform seems not quite the right word – might yet have an impact. Being right on the economics but wrong on the sentiment is to sail close to the wind when so many investment decisions are influenced by emotion as well as cold facts. And there are some particular problems facing Poland, not least the deteriorating demographic picture.

For the time being this is being ameliorated by the availability of labour from Ukraine with 21 per cent of Polish employers now saying they engage Ukrainians. This is up from 11 per cent only six months ago, according to research by recruitment company Personnel Service, the Polish employers’ organisation and the state employment service of Ukraine. According to the study, some one million Ukrainians are expected to travel to Poland for work over the next two years, and Belarusians will comprise the second largest group.

But is it sustainable? That depends on many factors, not least on how many see Poland as a stepping stone on their westward journey, rather than as a final destination.

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Return

“Neither can the wave that has passed by be recalled, nor the hour which has passed return again.” The words of Ovid which, since we have yet to develop time travel, remain as true now as ever they were. And after passing over many waves, and spending many hours travelling to Australia, Polish president Andrzej Duda has suggested to Polish Australians that they might like to return – geographically if not temporally (cynics might disagree on that) – to Poland.

The visit is aimed at boosting bilateral ties, especially trade, as well as meeting as many Polish expatriates as possible during this, Poland’s centenary year. According to Duda, there are 180,000 folk in Australia of Polish heritage, while the Polish diaspora world-wide is some 20 million.

Meeting Polish Australians at Keysborough near Melbourne, during the first ever official visit by a Polish head of state to Australia, the president said that Poland is developing, is increasingly beautiful and that Poles are ever better off. He added that when they visit Poland “you will be able to look with satisfaction and think: maybe it would be worth coming back.” Duda also thanked Australia for accepting Polish soldiers after the second world war during a ceremony in Melbourne to commemorate troops from both countries who took part in an eight-month campaign in Tobruk, Libya, in 1941.

President Duda also met Malcolm Turnbull, the Australian prime minister, and the foreign and defence ministers, to discuss defence, security and energy ties. The suggestion that this meeting would be cancelled because at the last moment the Polish prime minister decided to cancel the planned purchase of three Australian frigates, which was one of the main purposes of Duda’s trip, was not correct.

Be that as it may, is Poland’s current performance likely to lure folk back from Australia? Certainly, Poland’s economy continues to perform well. According to the Central Statistical Office (GUS), industrial production in Poland grew 10.3 per cent in July compared with a year earlier, with output in the construction and assembly sector up 18.7 per cent year on year. In the first six months of this year 6.3 per cent more homes were completed than during the same period in 2017.

Looking at the economy as a whole, according to the latest flash estimate from GUS, the economy grew by 5.1 per cent in the second quarter of this year compared with 5.2 per cent GDP growth in the first quarter. The figure for 2017 as a whole was 4.6 per cent and the investment and development minister Jerzy Kwieciński said in May that Poland was capable of maintaining economic growth at between 4 and 5 per cent.

Annual inflation stood at 2 per cent in July, according to GUS, the same level as in June, but up from 1.7 per cent in May, 1.6 per cent in April, and 1.3 per cent in March. Average wages rose 7.2 per cent in July compared with a year ago. This takes the average Polish monthly wage to PLN 4,825 (EUR 1,122, USD 1,298), a slight decline from PLN 4,848 a month earlier, but still modest by Australian standards (median wage approximately EUR 3,000). At the same time, total employment in Polish companies increased 3.5 per cent in July year-on-year (the figures are for companies with more than nine employees).

Which is all very well, but most folk don’t make decisions affecting their own families based on economic statistics alone. At a purely practical level, if families have a life in Australia (or any other country for that matter), homes, careers, children at school, and so on, it seems unlikely that they will wish to face the upheaval of moving back to Poland just because the president thinks they might be surprised by what they find. Lower average salaries may be an opportunity for businesses investing in Poland, but they are unlikely to appeal to many with good jobs elsewhere.

Added to this is the concern about the current direction of government policy, particularly the continuing tension with the EU over the rule of law, creeping nationalisation, a tendency towards a more authoritarian approach generally, and a general uncertainty as to where this might end, it seems unlikely that many will be following the president’s advice.

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Rejection

“The rule of law means that law and justice are upheld by an independent judiciary. The judgments of the European Court of Justice have to be respected by all. To undermine them, or to undermine the independence of national courts, is to strip citizens of their fundamental rights. The rule of law is not optional in the European Union. It is a must.” The words of Jean-Claude Juncker, president of the European Commission. For which reason it will come as no surprise that the Commission in its reasoned opinion has rejected the Polish government’s explanation of its judicial reforms, on the basis that it regards them as ‘incompatible with EU law’.

On Tuesday the Commission urged Poland either to change the law which forces judges of the supreme court to retire early or to face an action in the European Court of Justice. This is the latest round in the conflict with the Polish government over its reforms to the Polish judiciary which reforms, the Commission argues, are eroding the rule of law. The government as a month to respond.

This particular episode arises following last month’s formal notice from the commission to Poland of an infringement process for Poland’s breaking EU law by increasing political influence over judicial appointments. The Polish government responded by saying that the Commission’s concerns were unfounded and that under EU rules “the organisation of the justice system is the exclusive competence of the Member States”, and that “Poland is not in breach of the general provisions of EU law when it determines the retirement age of Supreme Court judges”. This response, as reported in the Financial Times, “did not alleviate the commission’s legal concerns”. The opinion itself said that: “The European Commission maintains its position that the Polish law on the supreme court is incompatible with EU law as it undermines the principle of judicial independence, including the irremovability of judges”.

If the government fails to act, the infringement procedure could result in Poland being brought before the ECJ. One EU official said it is a political to escalate the process so quickly “and a sign that political dialogue is non-existent.”  And, in addition to this infringement process, the Commission last year launched the Article 7 procedure in reaction to concerns about the rule of law in Poland, which could ultimately lead to Poland’s losing its EU voting rights.

Infringement proceedings before the ECJ can take years so the Article 7 procedure is likely to be of more immediate concern. However, sanctions under Article 7 require unanimity and Hungary, itself no stranger to battles with EU, has said in the past that it will veto sanctions against Poland.

At is heart the problem is simple. The supreme court law which came into force in July lowers the retirement age for judges from 70 to 65 which could force 27 out of the 72 judges to retire early. The government argues these changes are necessary to deal with reforms left unfinished from the communist era while the EU is concerned that these changes increase the government’s political influence over the judiciary. Indeed, Malgorzata Gersdorf, head of the supreme court and one who would be affected, has resisted early retirement, branding the reforms a “purge”.

In its reasoned opinion, the Commission said that measures that allow a judge to appeal against early retirement and remain in office with the explicit permission of the Polish president did not constitute an “effective safeguard” for the rule of law. “There are no criteria established for the president’s decision and no judicial review is available if the request is rejected”, said the Commission.  And it’s hard not to agree that as safeguards go, that one is not safe.

Be that as it may, the supreme court has suspended applying parts of the law, citing provisions in the civil code that allow courts to suspend the execution of a law when it could prejudice a judicial appeal process. It has also referred five questions to the ECJ, including whether the law breaches EU anti-discrimination rules, and whether law violates the Polish constitution.  The Polish president’s office said there was “no legal basis” for the supreme court’s move, while the head of the Constitutional Tribunal – changes to which kicked off this saga – said it was “against the constitution”.

So there you have it. Plucky Poland taking on the malign interventionist forces of the EU to bring about necessary changes to the judiciary, or the EU stepping in to defend the fundamental values of the rule of law without which freedom itself is under threat. As ever, much depends on viewpoint and context. While each individual change to the Polish judicial arrangements might be defensible on its own, taken as a whole, and in the context of a government which seems keen to consolidate its hold in every possible area, the EU is right to voice concern.

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President

“A President’s hardest task is not to do what is right, but to know what is right.” The words of Lyndon B. Johnson which probably apply not only to presidents of the United States, but to presidents elsewhere and, indeed, to all who hold elective office or any degree power over their fellow citizens. Power has a corrosive effect. As Lord Acton famously said: power corrupts, and absolute power corrupts absolutely. Which is why the rule of law is such an important feature of a properly functioning modern democratic state. Fortunately, very few leaders in the modern world enjoy absolute power, and certainly not the president of Poland, the third anniversary of whose swearing in as president was on Monday.

How has he done so far? According to the president’s chief of staff, Krzysztof Szczerski, who was speaking to public broadcaster Polish Radio on Monday, Duda’s foreign policy successes during his first three years as president included the 2016 NATO summit in Warsaw, and “activities as part of the United Nations and the Three Seas Initiative”. In terms of foreign policy, the third year of Duda’s presidency was dominated by consistent efforts to “build Poland’s position in the international arena,” Szczerski told the state news agency PAP.

In his fourth year as president, Duda will visit the White House and the Vatican, and later this month will make a trip to Australia and New Zealand.  He will also take part in a summit meeting of the Three Seas Initiative (an initiative that aims to boost cooperation among countries between the Black, Baltic and Adriatic Seas) as well as receiving the French president, Emmanuel Macron in Warsaw.

President Duda was elected for a five-year term in 2015. Last month the leader of the governing Prawo i Sprawiedliwość (Law and Justice) party, Jarosław Kaczyński, said that there was likely that the party would field Duda as its candidate in the next presidential election in 2020. According to a June poll, commissioned by the Super Express tabloid, Duda would beat former Prime Minister Donald Tusk in the second round of Poland’s 2020 presidential election if both entered the race. Roughly 52.5 per cent of those surveyed said they would vote for Duda, while 47.5 per cent said they would support Tusk, Poland’s prime minister from 2007 to 2014 and now president of the European Council. Of course, if a week is a long time in politics, as Harold Wilson is said to have said, presumably two years is an age during which anything could happen.

Be that as it may, how has the president done on the domestic front? For many, a key aspect on which the president’s performance will be judged is his defending of the constitution and his role in the various changes to the way judges are appointed and the terms they serve, particularly the appointments to Poland’s constitutional tribunal which originally kicked off this saga. As a graduate law in law from Kraków’s Jagellonian University, where he served as an assistant in the administrative law department from 2001 to 2006, and from which he gained a Ph. D. in law in 2005, he might be assumed to know what was right in relation to the working of Poland’s constitution.

And, to be fair, he did last year veto two bills (please see Veto) dealing with with the Supreme Court and the National Council of the Judiciary (although they later entered into law in amended forms and are the subject of the current rule of law dispute with the EU Commission). This showed that he knew what was right and was inclined to do right, although others will argue perhaps that this is an over generous interpretation of his actions or lack thereof, both before and since. The president’s own proposal for a referendum on the Polish constitution was last month rejected by the senate.

One problem, which may be a reason, but which is hardly an excuse, is how quickly those elected to high office seem to lose touch with reality. Leaving aside those for whom the strength of their convictions is inversely proportional to their respect for the rules, and for whom the ends justify the means, the pressures of modern office mean that holders are on a non-stop merry-go-round of meetings and engagements, meeting only officials, other politicians, and interest groups of one sort of another, allowed barely time to rest let alone think. It’d hardly surprising that in these circumstances the vision of what is right becomes clouded. Nevertheless, ultimately there is no excuse: the buck stops with president who must be equal to the task.

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