Why rule of law in Poland matters?
A selection of experts answer the question. Sadurski / Krygier / Halmai / Pech / Belavusau / Csaky / Chapman
Prof. Wojciech Sadurski | Professor, the University of Sydney & University of Warsaw
Why is the rule of law so important? One possible answer is that one cannot have democracy without the rule of law. And this is for three reasons. First, democratic choices are not made spontaneously, ‘naturally’, but require procedures. Observing those procedures, even if we may find them occasionally irritating, is the rule of law. Second, because democratic outcomes have value only when they are constrained by the rules of the game. Otherwise, it is the rule by law and not the rule of law. Third, ‘the rule of law not persons’ stands between us and arbitrary will of another fellow citizen. Otherwise democracy degenerates into oppression.
Prof. Gábor Halmai | Professor and Chair of Comparative Constitutional Law, European University Institute
This year we (should) celebrate the 30th anniversary of the democratic transition in East Central Europe. This transition started in Poland with a round-table discussion, where the participants agreed to introduce a system governed by the rule of law. This Polish way to a constitutional democracy was followed in my home country, Hungary as well. In recent years in these two countries, once the pioneers of a peaceful ‘rule of law revolution’, and in the meanwhile members of the European Union the values of the rule of law have declined, and even the EU was unable to stop this decline. Therefore, national civil initiatives, such as RuleOfLaw.pl are instrumental to attract attention to the dangers, which threaten the values of the 30 years old democratic transition.
Prof. Martin Krygier | Gordon Samuels Professor of Law and Social Theory, University of New South Wales
The ideal of the rule of law is to tame power so that those who wield it cannot act arbitrarily – uncontrollably, unpredictably, disrespectfully. In 1989, Poland startled the world by being the first to free itself, and by example its neighbours, from communist dictatorship that systematically denied this ideal. It launched an experiment inconceivable in the region only a moment before: a polity where power could be routinely framed and tamed by law. If this ideal is sustained against powers that show no respect for it but simply regard law as an instrument of their rule, something precious will be saved, for Poland, for Europe and for the world. If the struggle fails, a promising experiment will end as a tragic failure.
Prof. Laurent Pech | Professor of European Law, Head of Law & Politics, Middlesex University London
Why should we value the rule of law? Because it is a principle which aims to protect everyone against the arbitrary use of power not only in Poland but everywhere. How does the rule of law do so? Primarily by subjecting public authorities to procedural and substantive limits under the control of an independent judiciary. Why should we worry when public authorities in Poland or elsewhere seek to undermine it in the ‘name of the people’ or under other false pretences? Because, if not resisted, this will lead to rule of law being replaced with the rule of (strong)men.
Prof. Dimitry Kochenov | University of Groningen
The European Union is built on the presumption that all its Member States are constitutional democracies based on the rule law and the respect for human rights. The whole point of the Union is to unite nations based on these core values and boost economic integration between them. It is thus not a surprise that the magnetic force of the Union for the nations of Central and Eastern Europe has been extremely strong due to both factors: economic integration has played a role similar, if not superior to the idea of joining the European family of values. Yet, the values presumption was so strong, that the instruments to ensure that it is true to life only appeared very late in the Union’s legal history. Poland and Hungary today are putting these instruments to the test. The very soundness of the Union’s foundational presumption is at stake.
Prof. Tomasz Tadeusz Koncewicz | Chair of European and Comparative Law, University of Gdańsk and 2019 Fernand Braudel Senior Fellow, European University Institute
Independent and impartial courts and effective judicial review are at the heart, not at the margins, of the EU rule of law. Similarly, the case law of the Court of Justice provides strong arguments in favour of interpreting the rule of law as one of the meta-principles of the entire constitutional framework of the EU. It is the interpretation that might change, but the hard core of the principle stays: separation of powers, effective application of law, judicial review, right to an effective remedy, principle of legal certainty, legitimate expectations and the principle of proportionality. The rule of law must be recognised to be one of the foundations of the consensus in the sense that the Court of Justice spoke in the 1970’s of the supremacy of EU law as forming “the very basics of the EU legal order”.
Dr Uladzislau Belavusau | T.M.C. Asser Instituut – University of Amsterdam
As much as religion is full of strict rituals, liberal democracy is based on a sophisticated protocol to safeguard justice and equality, the rule of law. Unlike religion, the rule of law is less mystified, and its procedures taming arbitrarily powers are easier to grasp and question. Thus, the rule of law lacks the totalitarian powers of various sects in controlling their adherents. Poland is lately not just an enfant terrible, refusing to observe an outdated rite – since the 1990s, this rite has been its only ticket to the world of democracy, market prosperity and equal EU citizenship.
Zseylke Csaky | Research Director, Europe & Eurasia at Freedom House’s Nations in Transit
What is happening to the rule of law in Poland will determine the fate of democracy in the country. But the outcome will also have reverberations—symbolic as well as direct—that extend well beyond Poland’s borders. The government’s attacks on the rule of law have been exceptional in the EU and as such, are being closely watched by emerging strongmen and democracy advocates alike in the region and globally. As a resource, RuleOfLaw.pl is therefore critical to provide up-to-date and accessible information and analysis on the state of play in this local but also global struggle.
Annabelle Chapman | journalist writing about Poland
The rule of law is one of the foundations of the EU. With its new RuleOfLaw.pl website, the Warsaw-based Osiatyński Archive and Foundation for Civic Development Forum has brought together news and analysis in English on the rule of law in Poland. It offers a valuable resource for journalists, lawyers and policy-makers across Europe who want to stay informed about the changes to the Polish judiciary, their implications – and what the EU can do about them.
Sylwia Gregorczyk-Abram, Maria Ejchart-Dubois, Paulina Kieszkowska-Knapik, Michał Wawrykiewicz | lawyers, Free Courts Initiative (Wolne Sądy)
Rule of law is simply rule for the game called “State” in which players are called “citizens”. No rules means chaos in the game. No rule of law means chaos in the State. Citizens become Josephs K from Process of Franz Kafka which can be accused and sentenced with no guarantees of their freedoms, by however gains the power. We know how it ends from the history. Everybody who wants to freely play the game called “State” needs to protest when rule of law is breached.
Edit Zgut | Foreign policy analyst, PhD Researcher at IFIS PAN
Polish people have frequently given their lives for freedom. They deserve to be protected by a well-functioning rule of law state where the government and its agents are accountable under the law and their political leaders stand up against corruption. The key feature of Jaroslaw Kaczynski’s and Viktor Orbán’s regime is that both of them were abandoning the political achievements of their countries’ democratic transitions, and both referred to these periods as failures in order to justify their authoritarian system-transforming efforts. Ruleoflaw.pl is an excellent initiative that fills a much-needed gap in the Polish media sphere to have a better understanding of these trends in the former eminent students of the transition.