Judge Safjan started by outlining his lecture. He discussed post-1999 transformation of Poland, followed by the period after 2015 when the Law and Justice Party (PiS) took power, and concluded with some comments on the challenges to the restoration of the democratic rule of law in Poland.
According to Safjan, after Poland managed to emerge from communism through a peaceful revolution, it become a leader in successful democratic transformation, culminating in the country’s accession to the EU and NATO. In addition to the political changes, the reform process meant higher living standards, economic development, and change in social mentality. This process towards clear and precise goals with visibly positive results was halted by dramatic events which led to a deformation of democracy by calling into question the idea of rule of law – independent judiciary, protection of fundamental rights by a strong constitutional court, free media, and respect for minority rights.
Safjan argued that the election of the PiS in 2015 was the result of the divergences of consensus, expectations, and preferences of the quality of life between the elites and the rest of the population. According to the judge, benefits were unevenly distributed in Polish society. Such unequal conditions were painfully felt by the society, particularly when compared to the equality of communism, despite it being an equality of scarcity. Simultaneously, legal elites were arrogant and doctrinaire, failing to see the need for communication and observe that the principles of equality and economic development were differently applied in practice. The combination of the failures of the new post-communist system and the unwillingness of the elites to ensure the effective application of the principles of equality and economic development were capitalised by politicians who exploited them through demagogy and populism.Consequently, the “good change” promised by the PiS actually sought to dismantle the democratic rule of law. This was a planned process, according to the judge, through the establishment of new political constellations from the very beginning of the democratisation process aiming to interrupt the continuity of the democratic processes and establish an authoritarian system. In a few months this became clear as PiS declared that “Justice is above the law and justice is what results from the will of the people…”
After gaining power, the PiS did not adhere only to the principle that the ruling majority takes all, but they sought to control the very mechanisms supposed to safeguard the democratic system. Safjan argued that the first outcome of this plan was the capture of the constitutional tribunal to legitimise openly unconstitutional laws. Judges who saw differently their mission – that is, to protect democratic principles – were castigated as enemies of the people and were stigmatised as part of caste.
Safjan observed that the discourse of the PiS was dominated by their attack on judges, and they gradually sought to establish a pro-government and nationalist narrative in the media and in the education system.
While devastating, the affront to the democratic rule of law and constitutional rights led to greater citizen activism and concern for the defence constitutional rights. The massive protests of thousands of Poles against the measures taken by the Polish government to curtail the independence of the judiciary and the de facto ban of abortion rights were unprecedented. Safjan considered these protests as a key juncture of civil awakening and constitutional awareness, and he underscored that democracy and freedom cannot be preserved without civil society.
Safjan ended his lecture by cautioning that the process for the restoring of Polish democratic rule of law ought to avoid extremes: neither passive waiting for political change nor revolutionary radicalism. Despite the challenges, Safjan maintained that the processes of restoring rule of law must proceed by using all available methods by gradually marginalising undemocratic institutions.
The lecture was followed by a rich discussion, which focused on a variety of topics – from the relationship between law, morality, and the professionalism of the Polish judges to the challenges of restoring rule of law and the role of citizen engagement. Safjan further discussed the role of the Catholic Church in Poland and some of the key differences between the nature of democratic challenges that Poland faced after 1989 and the current challenges of restoring the democratic rule of law after the politicisation of the Polish judiciary.
by Alban Dafa (ESC Research Assistant)
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