My work in Poland is coming to an end. As I write, the University where I’ve been is engaged in a dispute with the Polish government about new legislation which will change the way that universities are organised. The constitution guarantees the autonomy of universities, and so does the disputed bill; but the three references to autonomy in principle are somewhat outweighed by more than 200 substantive references powers being given to the Minister. They range from relatively minor powers (for example, that the Minister can direct a university to appoint someone to teach sports) to rather more important ones. “Law 2.0” is framed in the belief that it is up to government and the parliament to determine how universities are run. The constitution and operation of universities is subject to the government, including how the university should be organised and run, whether the university can undertake research (the classification of universities as vocational is explicitly subject to the administrative power of the minister in article 15) and who they can appoint to be their professors. As I read it – I have to rely on my computer for detailed translations – the Minister determines what is a university and what is not (art 35), and art 40 suggests he can refuse if a university is ‘grossly in violation of the law’. The Minister apparently has the power to order a university to close (art 36), as well as the power to dispose of any remaining assets (art 37). There are clauses governing what subjects can be taught and even what the curriculum should be.
The context in which this is taking place is one where the government has been determinedly taking power to itself. The European Commission has expressed concern in strong terms:
the constitutionality of Polish laws can no longer be effectively guaranteed. This situation is particularly worrying for the respect of the rule of law since, as explained in the Commission’s Recommendations, a number of particularly sensitive new legislative acts have been adopted by the Polish Parliament, such as a new Civil Service Act, a law amending the law on the Police and certain other laws, laws on the Public Prosecution Office, a law on the Ombudsman and amending certain other laws, a law on the National Council of Media and an anti-terrorism law.
The central problem, as far as I can make it out, is not that the government is determined to undermine the rule of law; it’s that they don’t believe the Constitution really matters that much, that all it offers is a series of principles, that it’s open to the Sejm (parliament) to pass whatever laws they think fit, and that as a government they’re the people in charge. In the case of the universities, they think that universities are public institutions and that public institutions have to be kept under public control. There’s a very fundamental misunderstanding there. A constitution is a ‘basic’ law, not a set of guidelines, and it underpins everything that follows.