Poland’s embattled commissioner for human rights, Adam Bodnar, marked the end of his term in office yesterday with a warning about the future of Poland’s democracy — and his own institution. Like counterparts across Central and Eastern Europe, known collectively as ombudspersons, Bodnar is an independent government watchdog investigating violations of human rights and the Constitution. This role has made him a target for Poland’s increasingly authoritarian government, part of a pattern threatening institutions that have become a bulwark against democratic backsliding in Europe.
Bodnar, who took office under a previous government in September 2015, brought a legal challenge in 2016 against a new anti-terror law pushed through by the new ruling party, a measure that he said violated constitutional rights to privacy and free expression. Retribution was swift. The ruling Law and Justice party exerted intense political pressure, while the Parliament slashed the office’s budget by 20 percent and changed regulations to make it easier to remove the commissioner’s legal immunity. President Andrzej Duda’s narrow – and challenged — re-election victory on July 12 makes it less likely that any successor to Bodnar could be truly independent, as originally intended. Duda began his second term on Aug. 6.
“The Polish system can no longer be defined as a true constitutional democracy,” Bodnar told Poland’s Senate yesterday in a speech concluding his constitutionally mandated five-year term. “Hostile actions on the part of the government” and rising “political polarization” have stood in the way of his efforts to defend Poles’ fundamental rights, he said.
Several Central and Eastern European ombudspersons face similar risks, as political turbulence undermines their independence and “illiberal” ruling parties seek to remove independent checks on their control. Attacks on these institutions threaten to hasten the unraveling of the rule of law among key U.S. allies. Meanwhile, President Donald Trump, both by his word and his example, has done more to encourage these abuses than to stop them — he invited Duda to the White House just weeks before the July 12 Polish election.
Ombudspersons were established as key reforms in nearly every European country transitioning to democracy since the end of the Cold War. Several were created as part of the process to join the European Union, according to a June policy paper on ombudspersons in Europe authored by German Marshall Fund scholar Luka Glušac. Enshrined in national constitutions, ombudspersons received a sweeping mandate to investigate violations of human rights and democratic freedoms. By investigating and speaking out on government abuse, they can provide a strong check on governments and executive power — a role that is increasingly vital as democracy erodes in the region.
As the government in Poland pursues an increasingly authoritarian domestic agenda, Bodnar has reported extensively on the ruling party’s assault on the judiciary, restriction of free expression, and dismantling of LGBTQ rights. Simultaneously, Bodnar has raised alarms about a barrage of political pressure on his own office, including harassment via state-controlled media and other efforts to hamper and discredit his work.
Further to the east, ombudspersons in Georgia and Moldova have reported government refusals to cooperate with investigations and efforts to interfere with their work. Ukraine’s parliament, the Rada, drew international criticism in 2018 by selecting a political figure — a sitting member of parliament — as its new commissioner for human rights. Though she ultimately resigned her seat in the Rada before taking the post, the politicized appointment ran afoul of norms of independence and dealt a blow to the institution’s credibility.
The Risks of Losing These Effective Watchdogs
Eroding the power of ombudspersons risks the loss not only of influential advocates for human rights and freedoms, but also of consistent watchdogs of public administration. Similar to inspectors general in the United States, ombudspersons often examine government programs and recommend ways to root out inefficiency and abuse. This work bolsters the health of still relatively young democracies. When public administration is ineffective, popular support for government suffers, creating conditions that allow would-be authoritarians to rise.
At their best, ombudspersons are responsive to the public and independent from political pressure. Their work is strictly non-partisan and evidence-based, a vital feature in still-nascent democracies like Ukraine that are often riven by sharp political divides. The international community uses information that ombudspersons report as well. The European Commission “relied heavily” on Bodnar’s findings to take steps toward defending the rule of law in Poland, according to Glušac.
The offices also were designed to be highly resistant to government pressure: Poland was the first country in Central and Eastern Europe to establish an ombudsperson, in 1987. The commissioner for human rights serves a five-year term and can be removed only by a parliamentary supermajority and only for violating his oath of office or becoming medically incapacitated. Citizens have a right, afforded in the country’s Constitution, to file complaints with the commissioner free of cost. So far, Bodnar has continued his strong oversight despite government interference. He filed suit in April to stop the government’s plans to hold a hasty presidential election by mail ballot, plans that were ultimately abandoned under domestic and international pressure.
However, political jockeying could render the institutions ineffective, even without changes to the Constitution or the law. Parliamentary majorities could fill ombudsperson posts with political allies — as in Ukraine — tainting their vital reputation for independence. Or, ombudspersons could be quietly cowed into treading carefully, refusing to take the most serious or controversial cases out of fear of upsetting the government. The latter seems to have happened in Hungary, where a steep democratic decline since 2010 has coincided with the ombudsperson “repeatedly failing” to address “pressing human rights issues that are politically sensitive and high-profile,” according to a report by the Hungarian Helsinki Committee, a human rights NGO.
Some domestic observers believe that, when Bodnar’s term in office expires next month, the Law and Justice government will be eager to replace him with a party loyalist. Even if such a move proves too politically explosive, it’s likely that Poland’s next ombudsperson will face renewed obstruction, intimidation, and interference in the office’s work.
European and U.S. Support Is Critical
Threats to government oversight in Europe need not go unanswered. The United States and the European Union can push back with their considerable diplomatic weight, their public voice, and their example.
EU institutions have long offered assistance to national ombudspersons at a technical level, helping them grow stronger and more efficient in their oversight duties. The European Parliament and European Commission also regularly speak out about the need for independent and effective ombudspersons and encourage governments to implement ombudspersons’ recommendations, according to Glušac, who also advocates for closer cooperation between EU institutions and national ombudspersons in EU member states.
The United States played a crucial role in laying the foundations for new Central and Eastern European democracies after the Cold War, and it remains in the U.S. interest to prevent their erosion. Where democracy declines in the region, American influence will invariably recede; the cohesion of the NATO alliance will falter, leaving Russia freer to act with impunity; and China will find governments more sympathetic to its ambitions.
Protecting democracy in Central and Eastern Europe, in turn, requires protecting the oversight authority of these ombudspersons’ offices. The United States could back efforts by the EU and non-governmental organizations to support ombudspersons and raise alarms about threats to their independence.
The current administration, however, has failed to consistently use diplomatic channels to confront threats to human rights, and shows little inclination to try. Rather, Trump has honored and praised the illiberal leaders of Poland, Hungary, and elsewhere, while creating public rifts in relationships with more stable allies. Trump is quick to punish Germany and other NATO allies for falling short of defense spending targets, but he raises no objection when NATO members fall short of their obligation to uphold democratic rights and freedoms. With his public embrace of Andrzej Duda and Hungary’s Viktor Orban, Trump has led a foreign policy incompatible with efforts to defend democracy in Europe.
As troublingly, the current U.S. administration has failed to lead by example. Trump has led his own assault on independent oversight of his administration, from the politically charged removal of five inspectors general to a campaign of retaliation against government whistleblowers for reporting official misconduct. Trump even said whistleblower protections, a cornerstone of government accountability in the United States, were a “racket” causing “great injustice [and] harm” and suggested that Congress should do away with them.
Supporting democracy abroad requires humility and honest reckoning with how they are being eroded at home. The United States has an imperative to demonstrate democratic leadership, which demands that we honestly confront where we have fallen short of our own ideals. Congress could help fill some of that void for the time being, with strong public statements and through institutions such as the independent U.S. Helsinki Commission, which promotes human rights, military security, and economic cooperation. Congress can also take up a bipartisan bill to further protect the independence of U.S. inspectors general. There is no defending democracy abroad unless American leaders stand for it at home.
IMAGE: Polish lawyer Adam Bodnar, head of Poland’s Office of the Commissioner for Human Rights, stands on stage after receiving the Rafto Prize 2018 for the important stance his office took in the face of current political developments in Poland, at a ceremony in Grieg Hall in Bergen, Norway on November 4, 2018. (Photo by PAUL S. AMUNDSEN/AFP via Getty Images)