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ANITA KARWOWSKA: 11 months ago, we asked you during an interview with "Wyborcza" whether democracy in Poland had come to an end. Back then you answered: "Not yet I hope". How would you answer that question today?
PROF. ADAM BODNAR: I would offer the same answer: not yet I hope. At the end of my last speech in the Senate I said: "The Constitution and civil rights have not yet perished, so long as we still fight for them. [Editor’s note: Mr Bodnar is referring to the opening line of the Polish anthem: “Poland has not yet perished, so long as we still live”]. I still see spaces of pluralism and contestation in defense of the constitutional values.
We underestimate the behavior of the courts, which continuously perform the function of a check on the executive power. Contrary to political expectations, judges have repeatedly stood up for civil liberties and rights. Just in the past year, one can give examples of courts siding against the illegal LGBT-free zones or the detention of protesters by police. Against all odds, all hope is not yet lost.
During the aforementioned final speech in the Senate, however, you also invoked the words of the late legendary Solidarity activist and dissident Karol Modzelewski, who warned that we are heading towards a police state.
Back when he said those words, he called me a frontline soldier in the battle against the dismantling of Polish democracy. In turn, I felt obliged to report that I fulfilled these duties to the best of my ability on the Ombudsman front. While my mandate as the Commissioner for Human Rights ends on July 15, when the Constitutional Court ruling comes into force, my fight for civil liberties and rights will continue.
Karol Modzelewski spoke about the police state in 2016, when Poland looked very different than it does now.
The pandemic showed how the police can use their tools of coercion to suppress demonstrations, to silence critics of power, how they can apply the law unevenly - they can act in extremely brutal ways with impunity towards some, while turning a blind eye to other groups.
But as long as we have independent spaces of dissent that allow us to speak openly about these phenomena - not only domestically, but also before international institutions - I still have hope.
Your term of office coincided with the rule of Law and Justice, which during that period dismantled numerous democratic institutions. How did the successive stages of this authoritarian turn affect the effectiveness of your activities as the Ombudsman?
Effectiveness in the context of the Ombudsman is not a clear-cut criterion. A government, equipped with all its arsenal of tools of power, can be judged based on whether it is effective or not. In my case, I could make suggestions, intervene in specific cases, and appear before the courts.
The Ombudsman is supposed to be the one who warns against cases of abuse or inspires people to do something. However, he cannot be held accountable for the fact that the authorities have not fully implemented the issues he fights for.
The refusal to compromise is written into the DNA of the current government.
As an example, it has been impossible to have any constructive discussion with the Ministry of Justice.
If the ruling camp would be even a little open to dialogue, it would be possible to solve, for example, the glaring issue of the Supreme Court Disciplinary Chamber. We must be aware of this context and understand the conditions in which we live today.
I believe, however, that if it were not for my activity in the field of stopping repressive actions against the LGBT communities, the situation of these citizens would be much more dramatic than it is now. I also have the satisfaction of helping those who suffered from abusive clauses in their CHF-denominated mortgages. It was a long road, but thanks to our consistent information campaign and strategic actions they can now more effectively assert their rights before the courts.
Was there something that we could have done to slow down this slide towards authoritarian methods?
Let me give you an example. What was the reaction of the journalistic and political opposition circles in the autumn when the information about the takeover of Polska Press publishing group by the state-owned oil giant Orlen went public? Basically, it was defined by resignation: if the ruling camp buys the local press, then that is it, nothing we can do about it.
I tried to change this narrative of hopelessness by calling for constitutional protection of free speech and drawing attention to threats to many local editorial offices. To no avail, it seemed. However, this week a district court in Warsaw sided with my reasoning, at least for the time being, and halted the execution of this transaction.
So, I ask, if we still have certain spaces for debate and civic activity, are we using them as well as we should? Are we really doing everything we can not to let go in defense of freedom and human rights?
Sometimes we accept the reality far too easily, we get distracted by catchy yet fleeting controversies, at the expense of seeing clearly the longer perspective of the changes taking place in Poland.
We weep over a dying democracy, while at the same time doing too little to save it.
I believe so. I believe that we are doing too little to save democracy in Poland. If we still have a dozen or so universities, thousands of intellectuals, activists, and journalists who can still voice their views, surely it is not unreasonable to think that we could do more.
Of course, I can point to many specific representatives of these circles who are actively fighting for democracy. But when I think about how numerous they are and what potential they represent, I have the impression that we yield too easily.
I do not want to refer only to the information bubbles in which we function, but I have to point out how much we also focus on "our" topics, thinking that they encompass the whole world.
And yet the media message is controlled 50-60 percent by the ruling party. Its recipients sometimes do not even know what is happening in our space, which is still free and independent.
What is the message they receive now?
If we were to listen to what is being said about me in the public and pro-government media in recent days (although I am not able to follow all of it), it probably consists of a long list of accusations focusing on how ideologically skewed I am.
There is no mention of the more than 70,000 complaints that came to my office over the last year, nor is there anything about our actions in response to those requests. This is not in the interest of the authorities.
If this interview reaches any Law and Justice voters, what would you tell them about the Constitutional Court's ruling on the Ombudsman’s office?
I would tell them that the independence of this institution is important for everyone because the government and other agents have to comply with the Constitution and the law, not political sympathies or antipathies.
And it is very likely that they will lose an independent office that deals with their rights, regardless of what those rights are. Even if you feel relatively safe because you may be supporting the position of the current government, that could always change. You might find yourself at odds with the ruling camp. The independence of the Ombudsman office is meant to protect you when this occurs.
Prof. Ewa Łętowska, former Ombudsman and former judge of the Constitutional Court told "Wyborcza" that “the Ombudsman does not have fangs or claws, but those who try to dismantle the rule of law nonetheless have to be a little afraid of him. What was the Law and Justice afraid of with you serving your term?
All I can say is that the ruling camp decided that my office is to be subordinated to them and the opposition-held Senate must lose its role in picking the new Ombudsman.
It was less about me personally, and more about the governing party deciding to bring this political project to its logical conclusion.
In a recent interview you said that you would like to run for the post of Commissioner of Human Rights of the Council of Europe. Will you follow in the footsteps of former Prime Minister Donald Tusk, watching from afar as Poland descends even further away from democratic standards? Maybe you should stay and save what can still be saved?
That answer referred to my long-term plans and ambitions. The Commissioner for Human Rights of the Council of Europe is a very honorable position. Today, independent officials like me do not have any chances in terms of running for high-level posts in international organizations anyway. It is impossible to be appointed to them without the support of the national authorities.
I will continue to be active in public life. It is not that I will disappear overnight. I am 44 years old; I believe that I still have at least 30 years of public service ahead of me. The public has given me such a strong mandate of confidence in recent years that I cannot now say: sorry, I will retreat from public life and find refuge in academia, focusing solely on writing articles for scientific journals. Yes, I will write them, but above all I feel obliged to continue to actively serve the citizens.
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