COVIDA Student Blog Post A crisis at the heart of the Union: Warsaw, Brussels and the Rule of Law

 

Francis Javier Dichupa

COVIDA Collective
University of Victoria

November 2021

 

Photo Credit:
The Chancellery of the Senate
of the Republic of Poland

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Francis Javier Dichupa

COVIDA Collective / University of Victoria

 

Javier is a recent Political Science graduate from the University of Victoria. He is currently a research assistant, member of the COVIDA Collective and has worked with fellows from the Cedar Trees Institute. His areas of focus are European Politics, Political Theory and Political Economy. Javier is interested in the concept of joining hands and applying this framework to his studies. On his free time Javier enjoys getting out into the wilderness with his friends and reading.

The rise of illiberal democracies within Europe is alarming. Poland’s ruling Law and Justice party (PiS) has been waging war against the integrity of the Polish Judiciary. Starting in 2015, the PiS has moved to install pro-party justices across the Polish court system. In this context, EU law and EU courts have become especially important bulwarks of judicial independence. However, the Polish Constitutional Tribunal ruled in early October that the European Union’s law does not have primacy over some sections of the Polish Constitution. By limiting the application of EU law and reach of EU courts, the recent ruling of the Polish Constitutional Tribunal not only undermines the rule of law in Poland, but also constitutes a serious challenge to the European Union itself. This transgression is too grave for the EU to ignore. The period in which dialogue can be used to avert  this crisis has passed. The conflict between Brussels and Warsaw is quickly devolving into a zero-sum game. However, the reality is that no party will truly win this dispute, and the ultimate losers of the conflict will be the Polish people and the citizens of the EU at large.

Background
The PiS has been working feverishly to consolidate its power by breaking down the separation of powers between the Republic of Poland’s executive, legislative, and judicial bodies. After the 2015 Polish Election, the PiS government refused to confirm judicial appointments made by the previous parliament and instead appointed Justices supportive of the party to the Constitutional Tribunal (Gersdorf & Pilich, 2020, p. 345). This action stripped the Constitutional Tribunal of independence and violated Polish law. Furthermore, president of the Constitutional Tribunal, Julia Przyłębska, allowed three additional judges to be nominated by parliament to the Tribunal (Pech, Wachowiec & Mazur, 2021, p. 6). These appointments were done without any formal legal basis and constituted undue political interference in the judiciary.

The next court to fall to PiS’s influence was the Polish Supreme Court in 2017. In 2017 the Polish government made changes to the retirement criteria of judges on the Supreme Court. The Polish government intended to force certain judges on the supreme court to retire early and then replace them with judges under PiS influence (Pech et al. 2021, p. 8). However, the Commission launched infringement proceedings on July 2nd, 2018......