By Jack Leydicker
Sylwia Gregorczyk-Abram is an attorney-at-law and social activist, working with NGOs on developing a democratic civil society and protecting the rule of law in the Polish justice system. She is Co-Founder of the Justice Defense Committee and the Free Courts Foundation, both of which monitor and archive political pressure on judges and lawyers, giving them legal aid. She regularly participates in legislative processes in Poland’s Parliament as an expert in parliamentary Constitutional Governance and Reform of the Justice System groups. She also presents on the state of the Polish justice system to the European Commission.
This conversation has been edited for brevity and clarity.
For those unfamiliar with the situation in Poland, could you provide a brief summary of what the Polish government is doing?
Since 2015 when Law and Justice, [the ruling party], won the election, a lot of things have changed in Poland with respect to the independence of the judiciary and also with human rights. And as you probably know, and as readers will know, since it’s hard not to notice, we are having a very intense and difficult relationship with the EU. Only today, the Vice President of the Court of Justice said that Poland will get a 1 million Euro per day penalty for not executing the judgment of the Court of Justice regarding the Disciplinary Chamber.
What is the Disciplinary Chamber, and what has Law and Justice done to take control of the judiciary?
As regards the independence of the judiciary, Law and Justice did so-called “reforms,” and took over the control, of course, of the Constitutional Tribunal, which is the obvious one, because then you can just do everything you want to do to your own country. And then the Supreme Court and regional courts have created a disciplinary system against Polish judges to create a chilling effect against their rights. This is difficult for the European Union because they’ve created a new Disciplinary Chamber only to punish judges who they believe should be punished, and those are usually the ones that criticize [the government]. They’ve created from scratch, from the very beginning, two new chambers. One of them is responsible to say at the very end, whether the election went right or wrong. The second is the Disciplinary Chamber created only for the judges and lawyers that aren’t cooperating with [the government].
They’ve made changes, of course, in the whole system, of choosing new judges and promoting old ones. And now, with the takeover of the Constitutional Tribunal, they are basically undermining the whole presence of the EU because they said that, in July, any kind of interim measure passed by the EU is ineffective since it’s not according to the Polish Constitution.
People have thrown around the word “Polexit” to describe a potential Polish withdrawal from the EU. Do you think that is feasible and if so, what would that mean for the future of both Poland and the EU?
Fortunately, the Polish people are really pro-European Union. The last polls, I think, say 90% of Polish people, maybe 80% or 70%, but really a huge majority of Polish people want to be a part of the European Union. That’s what they say. They feel like they are European citizens, although I don’t know whether they really understand what that means in respect to common values and common rules. They want to be a part of the European Union because, of course, you can travel without any borders, you can go on student exchange trips, you can work in all those countries with few formalities, with families in other countries. But still, they feel a part of the European Union, which is a good sign, because in the case of any kind of referendum like what we saw in the UK, which nobody ever expected, then they may not vote [to withdraw from the EU]. But as far as Polexit is concerned, I would say that there are two different kinds of Polexits. The formal one, which is, of course, very difficult, given that they have to do a referendum and people have to vote. But there is a different kind of exit and a different story for the European Union. This is a story about creating two different kinds of EU. The first kind belongs to well-developed countries like Germany and France and so on, and the other kind belongs to the countries like Hungary, Poland, and Bulgaria, which will get less money and are left somewhere behind. This might actually happen in the future because, of course, Polexit itself is difficult, right? We saw how difficult the Brexit example was, but yet I don’t exclude the Polish government from trying this referendum at any point. They say now that they don’t want to do that, but I can’t rule out anything that the Polish government might try. But as far as the law is concerned, Poland is already there, because the judgment of the Constitutional Tribunal undermines the basic rule of EU law, so we are already no longer a part of the common legal system. We are very fortunate to be a part of the European Union, and I don’t want to even think about what would have happened if we weren’t a part of the European Union.
I know there’s a lot of debate on what tools EU lawmakers and politicians have at their disposal to coerce Law and Justice to implement the rulings of the Court of Justice. I’m curious what your opinion is on rule of law conditionality mechanisms, making EU funds contingent on passing the Court of Justice judgments?
We don’t really know how that will work. [Those mechanisms were] created because of Poland and Hungary, and you’re right, it’s a conditional mechanism because it’s saying either you have the independence of the judiciary in your country or you’re not getting more money. But it was never used in the past, it was just created recently. So we don’t really know whether to use it, because it’s always a political decision. Although, I believe that’s the only way. Either use this mechanism or give penalties for Law and Justice. We have a large amount of money to help countries after COVID, and the threat from the EU is that Poland will not receive its COVID funds until it fixes the situation with the judiciary. This is a very political decision. I thought it would happen, although last week, Angela Merkel said again, “let’s open a dialogue, this is very hard for Poland, and the Polish people should not suffer consequences for their government.” This is about politics, that’s why the Court of Justice imposed this penalty. And if the Polish government does not pay, they can withdraw money from Poland’s COVID relief fund.
How does the Polish public view the moves that the EU is making to coerce Law and Justice into passing these judgments? Does that reduce the popularity of the EU in Poland?
Well, it’s really hard to say. I would say that some politically active people, to be honest, are very impatient with the European Union, because they think that the EU should have done something a long time ago. They think that it is already too late to react, the system is broken, it’s destroyed, judges are suspended and disciplinary proceedings are pending, and the EU has done basically nothing. This is what they think, that the EU should have done more. And as Law and Justice is concerned, it really depends on the message sent because they’ve been saying to the public that the EU wants to take our money back and there are bad people in the European Commission. I don’t observe that Polish people are getting annoyed with these messages. I feel that they think enough is enough, and the European Union should do something. And even people that are not, you know, voting for opposition parties, are tired of conflict with the EU. They don’t understand why on earth there is a threat of withholding money for the Disciplinary Chamber. For example, farmers don’t really care about the Disciplinary Chamber. The government is appealing to those people, saying that “oh, the EU cannot tell us what to do, domestic law is higher than EU law, and if we allow the EU to tell us what to do, they will start interfering with our education system and our traditional Polish values.”
That brings us to an interesting point in terms of traditional values. You mentioned in your lecture a while ago that the government is using the idea of traditional values and the heavy Catholic influence in Poland to galvanize support and say “these people are trying to destroy what it means to be Polish.” Is that campaign working, are the Polish people receptive to that?
Unfortunately, yes, it is working. I didn’t expect that to actually work, but it is working. Polish people don’t really think about the Polish traditional family, they just want to feel safe, you know. And the “traditional” family in Poland is made up of a man, a woman, and kids, so of course, threats to your family are always effective. So, even if you don’t understand what’s going on, you don’t want your family to be threatened. So it’s very effective and they’ve done that with refugees from the very beginning and then with the LGBTQ, and they are used as scapegoats in absolutely every political election. The president, the members of parliament, they all use the LGBT card. Although, now, it’s moving again to refugees because there was a crisis at the border. So in the next election, I would say that they’ll use both cards, the refugee card and the LGBT card, because the LGBT society is seen as threatening to the idea of traditional Polish families and traditional Polish education. And unfortunately, the Catholic Church supports this kind of hateful rhetoric. They are really against the LGBT society and some very important people in the Polish Catholic Church said publicly that the rainbow flag is worse than the red Communist flag. So, when you hear this message coming from somebody working high up the church, it resonates, because people go to church every Sunday.
Is the way that Law and Justice is eroding the independence of the judiciary and galvanizing support by trumpeting these values and fabricating threats of LGBTQ people and refugees going to embolden other countries to do the same?
Well, definitely with the independence of the judiciary, this is why it is so important. That’s why the European Union has to react in a very tough way, because when democracy is not very strong, the executive power will naturally come to exert control over the judicial system. So this is like a grim, red light to them, sent by the Court of Justice. Of course, this is also about the EU as a whole. Every court and judge in Poland are European courts and judges. So if you have a case concerning Polish citizens and citizens of other countries, then if the Polish system is not meeting the criteria of independence, that raises many challenges. People may choose not to implement the judgments because the criteria of independence of the judiciary was not met.
Also, in terms of values, when I was in Denmark for a speech to the European Parliament, I spoke to a Danish professor who told me that after the near-total ban of abortion, politicans in Denmark began saying, “oh, maybe this is actually a good idea to follow?” Of course, they are right-wing politicians, but they’ve never had the courage to say that in the past, and now they do because they see this happening in Poland. So clearly, what happens in one country will cause ripple effects in other countries. And for some governments, this would be a very effective way to maintain power for a long time.
Do you think that the illiberal conservatism that Law and Justice is using to market itself is finding traction in the public in other countries? Are the public in other countries receptive to that discussion? I suppose it depends on the country you’re discussing.
It really depends on the country, yes. For example, in Germany, people are very aware of the situation. It’s usually Germany, France, Denmark, and the Netherlands, who are interested in the situation in Poland, and we have been exchanging messages for a long time. There are several countries interested in what’s going on, and usually they are interested because they’re geographically very close to Poland.
Going back to the Polish public, you mentioned that, if you’re a farmer, if you’re not involved in politics, many of these issues can seem very abstract and not directly related to you. I know that you have experience in galvanizing people to protest on the streets for democracy and for human rights, so how do you make sure that people who maybe don’t believe that this affects them directly are still aware that this is happening, are still aware that it’s a problem?
That is actually how I started. So, in 2017, when the crisis just began, [Law and Justice] introduced the National Judiciary Council and the Disciplinary Chamber. It really surprised me that thousands of people, massive crowds, went on the streets and fought for the independence of the judiciary. We didn’t think that would happen, we didn’t think that was possible because the independence of the judiciary is a very abstract idea. But people did protest, and just then, we decided that, as lawyers, we should do something to go to the streets, talk to the people, to have them with us all the time because it is very common during protests for people to be arrested and simply disappear. So we wanted to protect them. We thought that if we talk to the people as lawyers, that may not be very interesting, so we asked some very famous celebrities in Poland to help us. We created a series of very short movies, three-minute movies, explaining why this situation is important. And they always start the same way: assuming that the viewer isn’t interested in politics, and isn’t interested in the independence of the judiciary. We put the viewer in the shoes of, for example, a victim of domestic violence, and the perpetrator is somehow connected to the ruling party. We demonstrate how there can be no justice in that scenario. Or, imagine a situation in which politicians control public services and are misusing them. If a court that is pressured by that politician takes your case, then do you think they’re going to rule in your favor? So, we’ve done like 200, 300 short movies and it became very, very popular. You know, I really didn’t expect that, I was just a regular lawyer, but soon it was on every media channel in Poland.
Jack Leydiker is a first-year in Jonathan Edwards College. You can contact him at firstname.lastname@example.org.