It is my intention to help troubled Poland, in a troubled Europe, in a troubled World. I am a great fan of the new government of Poland lead by the Prime minister Mrs Beata Szyd³o, elected 4 months ago on liberal democratic principles, and the new President Dr Andrzej Duda, elected 7 months ago. Both aim to responsibly smooth the political rifts which appeared in Poland after the Solidarity movement, after the collapse of the Soviet Union, after transition from the past so called Socialist Democracy to the present Liberal Democracy, and after becoming a member of the NATO and the EU.

The responsible smoothing of these rifts has to find a compromise between the wisdom ‘'zgoda buduje, niezgoda rujnuje'’ (corresponding to the English ‘united we stand, divided we fall’) and the new reality of the new Economy, Capitalism and the free market. In the new World all the citizens individually, and all the enterprises coordinated by government regulatory law, have to be innovative, competitive and not expect anybody else to take care of them, feed them or complete duties for them. In this new World you have to play tough for every dollar (monetary or political) or go for any discount whenever possible. This compromise has to be reached playing by the book, by Poles complying with the new rules of Liberal Democracy. So, let us try to adhere to these principles.

To avoid building any new rifts we recorded the audio of the event and made it available online along with a transcript and all but one (I missed it) slides used at the event.

Click here to read "The Questions ignored"

The lecture was a mixture of academic issues about Liberal Democracy, of interest mainly to Sociologists and Politicians, and included a case study: the recent legal problems of the Liberal Democracy in Poland. Pakulski failed, however, to introduce the general audience to differences between Democracy and Liberal Democracy. In his talk the democracies were mixed up, they developed over time ending up with the present one, which only occasionally has been referred to as the Liberal Democracy.

(For a nice discussion of the various forms of Democracy one can refer Polish readers to the article by Professor Adam Wielomski.)

We learned implicitly that the important components of the Liberal Democracy include a Constitution, Parliament, High Court and the Constitutional Tribunal; the latest one being a care taker of the Constitution and playing by the book, being the ultimate arbiter between bitterly competing political parties represented in the Parliament.

We were reminded by the Lecturer that Hitler and Stalin came to power in a Democratic way, and in both cases the Constitution and Parliament were functioning, but they did not play by the book. Both of these Parliaments changed and manipulated the Constitution. They did not have a Constitutional Tribunal, the ultimate guardian of the Constitution. The content of the talk strongly implied and accused the new Polish Parliament and the new Polish government formed by the victorious in the 2015 election PiS Party (Law and Justice Party) of fiddling with the Constitution and with the Tribunal Court, what clearly was implying the question in the talk title.

To explain the problem in simple terms Pakulski, and Krygier later as well, referred to the game of rugby, where competing teams play tough, yet the Referee (corresponding to the Constitutional Tribunal in the Liberal Democracy System) is recognized as an ultimate guardian of the game rules and his decisions are final. The importance of a fair game, without animosities or poisonous emotions, playing by the book was underlined in the lecture many times.

A number of arguments were presented to convince the audience that the new PiS (Law and Justice) government drastically violates these book rules. How did it happen that such a government got to power? The research presented in the lecture showed that the turnout in the election was about 38% (in fact it was 50.92%, see footnote 1) and that young unemployed, uneducated and left behind (the skilled ones migrated) people and the old people frequently attending church contributed decisively to the PiS electoral victory. Implicitly we learned that PiS and its voting bloc introduced poisonous emotions into the game. That was basically the main content of the message of the lecture and of its discussion by Professor Krygier. We refer to a transcript and the audio recording of the whole event.

At this point Professor Pakulski missed his excellent opportunity to identify a new academic type of a danger which may lead to a deviation from principles of the Liberal Democracy: it is when one team selects the arbiter of the game, when this arbiter remains a vivid fan of his team and when he stretches the game rules whenever necessary. Both Distinguished Professors missed their opportunity here to analyse and present to the Sydney Democracy Network their views about the humiliation which this type of deviation from the Liberal Democracy may impose onto an electorate not only deeply believing in Democracy, but also being proud of being the first nation in the Europe (3rd May 1791) and the second one in the World (after the United States of America - 1788) who proclaimed its Constitution. Let us stress that it was this type of pathology and deviation from Liberal Democracy that in the first place created the legal and constitutional problems in Poland.

It is an undeniable fact that it was the previous government (8 years in power), run by the PO (Civic Platform) party (see footnote 2) that created the pending legal and constitutional crisis in Poland. Facing a dramatic defeat in the coming parliamentary election, in a conscious and aggressive move that violated the Constitution, the PO party introduced a single legislation (June 2015) allowing them to elect 5 new judges of the Constitutional Tribunal in their last 5 days in power. They aimed to achieve a 14:1 ratio of judges in their favour in the Constitutional Tribunal.

The presumption that the judges of the Tribunal will be politically neutral, as the Constitution requires, seems only theoretical, as the bitter conflict this move provoked shows. Professor Krygier commented about this move only after I was allowed to formulate my comment, despite interjections from the Chairman, at the very end of the discussion; he said: The outgoing government tried to pull a swift trick over its incoming rivals…. Well, that was a good lesson about Liberal Democracy and the freedom of speech, thank you Professor Pakulski, Professor Krygier and Professor Keane.

For 45 years I have been an Academic Statistician with experience gained in Poland, US, Germany and Australia (Macquarie University). In my profession an analysis of a phenomenon under consideration based only on data selected to support my conclusions and carefully hiding all data that raises doubts about my views is considered to be cheating and may result in serious consequences, including an expulsion from the profession. It seems that the standards in Social and Political ‘Sciences’ differ drastically to those of Science. Manipulations with selected data and waving clumsy graphs should be a subject of a separate study and can be used as a show case of a misuse of statistics.

Well, let me continue with my presentation of facts that follow from the PO’s move to unconstitutionally create a 14:1 ratio of judges of their choice in the Constitutional Tribunal. The new President did not take oath from the five unconstitutionally elected PO judges. The new Parliament declared that the part of the June 2015 legislation enacted specifically for the purpose of allowing PO to elect 5 judges had no legal power and instead introduced new legislation allowing them to elect 5 judges of their choice. The new Parliament also approved new legislation requiring 2/3 of the votes in the Constitutional Tribunal. The President took immediately oath from the newly elected judges, just ahead of the Constitutional Tribunal session, where the Tribunal declared that the June 2015 PO legislation complied with the Constitution in the cases of 3 judges but did not comply in the cases of the remaining two judges.

The legal rift between the parties that followed is based on the following arguments.

The new PiS dominated Parliament (37.58% of votes) and the PiS government argue mainly that
1. The Constitution allows the Constitutional Tribunal only to declare the considered legislation as complying with the Constitution or violating the Constitution. The Constitution does not allow the Constitutional Tribunal to selectively declare when the considered legislation is complying with the Constitution and when it does not. As clearly the Constitutional Tribunal agreed that the June 2015 legislation was violating the Constitution in the case of the two judges, the whole legislation has no legal power and, consequently, the new Parliament was right in their legislation allowing the election of the 5 judges of their choice;
2. The Constitutional Tribunal violated the Constitution also in other ways
a. The Chairman of the Constitutional Tribunal publicly expressed his views and actively took parts in media discussions prior to the Tribunal session referred to in point 1. This is not allowed by the Constitution.
b. Two of the judges of the Tribunal and the Chairman of the Tribunal took part in preparing the legislation introduced by the previous Parliament about the Tribunal. This again is not allowed by the Constitution.

The present parliamentary opposition consisting of a desintegrating PO party ( about 24 % of parliamentary votes) and a closely related new and extremely aggressive Modern Party (less than 6% of parliamentary votes) argue under the label KOD (Committee Defending Democracy) that the new Parliament has to comply unconditionally with the controversial verdict of the Constitutional Tribunal. They managed to get thousands of people to the streets aggressively demanding immediate compliance with their demands and destruction of the government. PiS supporters have also come out in their thousands protesting against the KOD protesters. KOD and its supporters have taken their anti-government campaign abroad and this includes the lecture that is the topic of this essay.

An important addition to this basic picture: the PiS government brought this matter to the Venice Commission of the Council of Europe and is waiting for their final decisions, which are due in the middle of March 2016.

My personal view of the legal conflict: facing a situation where both the umpire and the opposing team (PO) are playing unfairly and not by the book, the PiS plays tough. It has to do so to try to save the Polish electorate from the humiliating effects arising from deviations from Liberal Democracy introduced by the previous government – the Constitutional Tribunal representing one party only. This would be a parody of Liberal Democracy, even a parody of Democracy. I do realize that the present case is not an easy one from a legal point: what do you do when the Constitutional Tribunal does not play by the book? I believe that a compromise solution can be found. To the contrary, the KOD movement bears many features of tyranny anarchy and I am afraid of its leader Petru as a dictator. Solving problems on the streets by violence is very dangerous.

The problems presented above have been deliberately avoided both in Professor Pakulski’s lecture and in the core discussion by Professor Krygier. I am afraid this contributes to a serious bias about the constitutional problems in Poland that is being fed to the Australian media.

Yes, there have been yet further controversies raised in the lecture: a new media law not satisfactorily protecting the privacy of internet users and combining offices of the Prosecutor General and the Minister of Justice. The first legislation was prepared by the previous Parliament and having to deal with the rapidly developing immigration crisis the present PiS government passed this old PO legislation in the Parliament. I believe that it has been promised that further amendments will be passed at a later time. A good law can be compared to a smoothly working robot; a bad law requires a technician frequently fixing breaks down manually. The combining of the two offices in one hand (the second legislation mentioned above) was already in place in Poland in 2005-2007, when PiS formed a minority government. Similarly, in Austria, the Federal Minister of Justice is also responsible for the penal system (point 3.4.1 of the brochure ‘The Austrian Judicial system’).

A basic question not mentioned in the Pakulski lecture was where all these Defenders of Democracy were when the previous government was removing journalists from the office for broadcasting inconvenient news and removing sympathisers of PiS from pivotal positions. There was no mention of numerous criminal affairs being swept under the carpet during the previous administration. The economical and political problems of the Europe and of the World, the Finances almost universally based of debt and significantly contributing to the enslavement of countries and their peoples have not been mentioned. Relying on the content of the lecture the audience was left with impression that the ‘Orbanization’ and church attendance were the main causes of the sweeping changes that Poland is recently experiencing. There was no mention that this 'ugly' PiS government leads all the time in the polls having support 35-40% as the preferred political party, despite the strong KOD and Modern Party (13-16% support) campaign nationally and internationally presenting Polish affairs in a biased way like the discussed AIPA event organized by ‘Sydney Ideas’.

Professor Pakulski concluded his lecture surprisingly with a view that in spite of all these ‘antidemocratic’ actions of PiS and its leader Kaczynski (the bad boy of the Elites of Democracy after the 2015 election, replacing Father Rydzyk after the 2007 election) the Democracy in Poland is not in danger because people do care about. This seems to be the only point where I do agree with Professor Pakulski, the Democracy in Poland is in a good shape. Even the provocateurs in balaclavas, always present in demonstrations at time of the PO government, commonly believed to belong to special Police forces, disappeared now from demonstrations, allowing Petru and his KOD to safely organize their shows of disobedience. A good change from the previous PO government.

The event concluded with the following remark by Professor Krygier commenting on the new media law (we refer to the audio recording and to the transcript for the full context) ‘All sorts of journalists who live under the possibility that it might be exercised, will start to think in terms of internal censorship, even if the motivations of Mr Kaczynski now that he has become a democrat, are different from those when he was a communist. We don’t know.’

Well, we are learning that Kaczynski was a communist – I do recommend the reader to stay calm and do not disturb - the Elites of the Liberal Democracy are writing their own story about PiS blowing toxic passions.

As a church attendee I can now say ‘God save Australia’ because with such expertise nothing can save the hundreds of thousands of dollars entrusted to both Professors in the grants of the Australian Research Council.

Andrzej Kozek

1) in the transcript: the average vote was slightly below 38 per cent. Recall that the official turnout in 2015 parliamentary election was 50.92% and was higher than in the 2011 parliamentary election: 48.92%

2) its co-founder and chairman and former Prime Minister of Poland Donald Tusk became from 1st December 2014 the incumbent President of the European Council

RELATED LINKS

A. Kozek. Reporting on the Lecture: photos, audio & transcript

F. Molski: Fair of Foul, Lecture analysis in English

Dr Baterowicz, lecture analysis in Polish, Antypolska impreza w Sydney

Reader's Comments:
I would like to congratulate both gentlemen for their articles appearing in Puls Polonii on the 29th February 2016 re the lecture by Professor Pakulski "Is Democracy in Poland in Danger?" I have read the transcript of this lecture and totally agree with Mr Molski's & Mr Kozek's article. Stanislaw Mikolajski.