by Roger Cohen
Poland’s lurch into illiberalism and rewritten history, following the well-trodden Hungarian path toward the curtailment of democracy, is the most alarming political development in Europe since the fall of the Berlin Wall almost three decades ago.
Without Poland’s brave leadership and the Solidarity labor movement’s defiance of the Communist government, the crumbling of the Soviet imperium in Central Europe would not have been precipitated. Poles recovered their nation, their history and their freedom in 1989; a Europe artificially severed regained its geography and wholeness.
My friend Adam Michnik, enfant terrible of this Polish Revolution, once told me what he had fought for at the price of repeated imprisonment under the Communists. “My obsession had been that we should have a revolution that not resemble the French or the Russian, but rather the American, in the sense that it be for something, not against something. A revolution for a constitution, not a paradise; an anti-utopian revolution, because utopias lead to the guillotine and the gulag.”
Michnik’s cry was, “Liberty, Fraternity, Normality.” It was heady to listen to him in the early post-Communist days. Normality — freedom from the deathly hand of the nomenklatura and the prying eyes of the secret police — was thrilling.
A revolution for a constitution! The country duly acquired one, and a pretty damn good one, stating that Poland is a democratic state ruled by law, with a political system based on separation of powers, and setting out a range of individual rights.
It is this Poland — of democracy guaranteed by constitutional checks and balances — that the government of Jarosław Kaczynski’s Law and Justice Party has set about undermining since 2015, with the backing of President Andrzej Duda. Their model has been the Hungary of Prime Minister Viktor Orban, systematically at work on an illiberal project since 2010. The process is gathering pace.
The Law and Justice Party has turned the Polish lower house of Parliament, or Sejm, into a rubber stamp for its agenda. It has also waged a relentless campaign against an independent judiciary. This has involved increasing political control over the Constitutional Tribunal, Supreme Court and the ordinary courts through insistence on early retirement (and so replacement) of judges and refusal to comply with constitutional opinions. Judicial appointments have been politicized, an extraordinary process for review of elections created, the independence of the public prosecutor effectively eliminated, and court dockets manipulated.
The Venice Commission, a panel of constitutional law experts, said in December 2017 that the various measures put “at serious risk” the independence of “all parts” of the Polish judiciary.
“We are witnessing a slow but insistent and intentional process of undermining the courts so that they will not enforce the Constitution against the executive and the legislature,” Sarah Cleveland, the American member of the Venice Commission and a law professor at Columbia University, told me. “It’s a process of death by 1,000 cuts.”
The death involved could be that of constitutional governance and Poland’s democracy itself.
Several things need to be said here. The first is that Poland, by far the largest of the formerly Communist Central European nations that joined the European Union and NATO, has gone from poster child of liberty to standard-bearer of nationalist reaction, propelled by the phantasms of migrant waves and European Union “interference” manipulated by Kaczynski. It is an extraordinary volte-face. It is also testimony to how illusory the triumph of liberalism in 1989 has proved under the pressure of globalization.
The second is that Donald Trump’s United States, potentially the chief bulwark against illiberalism’s rise, has gone AWOL. He gave Kaczynski and the nationalists a pass during his visit to Poland in July. Indeed, the president has been conducting his own campaign against an independent judiciary. He’s called the American criminal justice system a “laughingstock’ and “a joke,” dismissed the legal system as “broken,” insulted judges, called for quick “strong justice” (read the death penalty), and labeled courts as “political.” The impression Trump leaves is that he’d be happy with Vladimir Putin’s law courts, Xi Jinping’s press, and Rodrigo Duterte’s war on drugs.
All this, of course, has empowered the likes of the Polish government. Anyone who seriously believes Trump is innocuous through incompetence on the world stage should think again.
A formal European procedure has been initiated that could lead to the loss of Poland’s voting rights within the Union; it should be pursued with vigor. Poland and Hungary cannot be allowed to sabotage without cost the club of which they have been, and remain, such conspicuous beneficiaries.
The fourth is the most serious. Independent courts (like a free press) hold power to account; they establish facts and truth. In their absence, the way is opened to Michnik’s “guillotine and the gulag.” When truth goes, so does freedom.
Poland’s grotesque “Death Camp” law, signed this month by President Duda, must therefore be seen as of a piece with a broader assault on truth. The law makes it a crime to accuse “the Polish nation” of complicity in the Holocaust or any “Nazi crimes committed by the Third Reich.”
Poles suffered terribly during World War II. The fact that many of the Nazis’ death camps, including Auschwitz, were on Polish soil has led to unforgivable conflations. But if Poles were victims, they were also at times accomplices and perpetrators in the slaughter of Polish Jews, as has been well documented in Jan Gross’s study of the Jedwabne pogrom of 1941, among other works.
I know this history personally, having been married to a woman whose Polish Jewish mother was saved through the bravery of a Pole (now belatedly honored at Israel’s Yad Vashem), and whose Polish Jewish grandmother was betrayed by a Pole and sent to the gas chamber.
Poles, as no others, know the terrible toll of false history. They know how the Soviet Union tried for decades to obscure the reality of the Katyn massacre. Yet now, a miserable bunch of small-minded nationalist upstarts are trying to play jingoistic games with historical facts in pursuit of their illiberal betrayal of the great Polish contribution to European freedom.
Awaken, Poland, before it is too late! Revolutions for a constitution are worth defending to the hilt.