Reversing the Polish drift to the illiberal path

Polish Prime Minister Donald Tusk during a press conference on January 30th 2024. Photo: The Chancellery of the Prime Minister of the Republic of Poland / wikimedia.org

For the past couple of years Poland has been making headlines for its perceived democratic backsliding and increasing authoritarianism. Aligned with Hungary, Warsaw formed an opposition bloc within the EU, vetoing and defying its rule-of-law agenda. However, with the change of power following the parliamentary elections in October 2023 and the formation of a pro-EU coalition government, European democrats might have breathed a sigh of relief. The new Polish prime minister, and a former president of the European Council, Donald Tusk, vowed to “bring Poland back to the European stage”. Nonetheless, the legal system he inherited has suffered a series of structural reforms, deemed by many as unconstitutional and incompatible with EU law, which raised concerns over the tension between legality and legitimacy. When Polish institutions have split loyalties to the new and old governments, and the judicial system is in disarray, to what extent can the new government bend the rules in order to restore the rule of law without acting like its authoritarian predecessor?

The Polish constitutional crisis started in June 2015 with the irregular appointment of five judges to the country’s Constitutional Tribunal. This was done by the Sejm that was then controlled by Tusk’s Civic Platform (PO) party. The court struck down two out of five of these nominations, declaring them unlawful and void. In response, President Andrzej Duda refused to swear in any of the PO-appointed judges. Following October elections, in December 2015, led by the right-wing nationalist PiS (Law and Justice) party, the Sejm appointed five new judges, causing a legal conundrum that is still relevant today. With that decision, the PiS government started the process of consolidating its power over the judicial system. Over the next few years PiS took control over the Constitutional Tribunal and introduced legislative amendments that politicized and eroded the safeguards of the independence and impartiality of the country’s judicial and prosecutorial systems. Changes to the National Judicial Council and the creation of the Disciplinary Chamber of the Supreme Court have allowed the government to effectively influence the appointment of new judges and persecute those judges who would not “fall in line”. The role of the Attorney General was instrumentalized to persecute the opposition, activists and critics of the regime.

Despite eight years of rule with an unquestioned majority, in October 2023 PiS lost the parliamentary elections and had to hand over power to a coalition of centre-left to centre-right parties. Donald Tusk, who assumed the role of the Polish prime minister for the third time in his life, subsequently promised a “return to the rule of law”. However, that return has proven to be more challenging than many had imagined. The president and parts of the administration still loyal to the former regime took an obstructionist position, promising not to make the new government’s job easy. The reformed legal system does not support the governing coalition’s plans for a modern liberal state. The legitimacy of the government, elected in the highest turn-out election in Polish history, clashes with the legality of reformed institutions.

The case of the presidential pardon

Struggles over jurisprudence and the legitimate use of power started with the case of Mariusz Kamiński and Maciej Wąsik, former anti-corruption agents and later deputy ministers in the PiS government who had been sentenced to prison for abuse of power. In 2015, Duda used his presidential prerogative to pardon them, allowing them to assume public offices again. However, in 2023, the Supreme Court ruled that the presidential pardon was invalid due to procedural errors. The Speaker of the Sejm Szymon Hołownia did not wait long and stripped Kamiński and Wąsik of their mandates. The drama took an extraordinary turn when the MPs’ appeal motions were sent through two channels. Following ordinary procedures, two appeals were sent by the Speaker to the Labour Chamber of the Supreme Court. Unusually, copies of the same appeals were sent by Kamiński and Wąsik personally to the Chamber of Extraordinary Control as well. This second chamber was created by PiS and is filled with political appointees that are viewed negatively by the European Court of Justice. The two chambers announced two opposite opinions in what can only be described as unprecedented legal chaos. “If two chambers of the Supreme Court fight and loathe each other”, commented the constitutional Professor Ryszard Piotrowski, “then practically we do not have a Supreme Court”. The interior minister then ordered the arrest of the two MPs, who were found hiding in the presidential palace. In the finale of the act, and in a display of quasi-monarchical power, Duda pardoned the two criminals again. Nevertheless, the question of whether they are still MPs is yet to be clarified. In this sense, although the legality of the actions of the president and the Supreme Court is guaranteed by the current legal system, their legitimacy is still questionable. The Chamber of Extraordinary Control that protected the MPs’ mandates is widely considered to be unconstitutional and not in line with the principles of independence and impartiality. Even if President Duda is entitled to pardon whoever he wishes, by doing so he admitted that Kamiński and Wąsik committed their crimes. As a result, his choice to protect them is purely political.

Assault on TVP

Another battle was fought over public media, which also reveals tensions between legality and legitimacy. At the beginning of its reign, PiS seized control over public media, turning it into a mouthpiece for party propaganda. Therefore, dismantling this much-hated machine and placing it under public scrutiny was at the top of the Tusk government’s priorities. The Minister of Culture Bartłomiej Sienkiewicz sacked and appointed replacements for leading figures of Polish Television (TVP), Polish Radio and the Polish Press Agency on the basis of corporate law. However, it is disputed if under the current legal regime the minister is permitted to make these decisions. Appointment and dismissal regarding the boards of public media corporations is the sole responsibility of the National Media Council (RMN), which was established by PiS in what was described as an attempt to tighten control over the country’s public media and to “bypass” the constitutional regulator KRRiT. In fact, RMN appointed an “anti-CEO” on its own, leading to a preposterous situation in which two opposing boards competed with each other over the rightful control of TVP. The minister’s decision was met with an enormous outcry from the PiS opposition, which culminated in the occupation of TVP headquarters and Duda vetoing the section of the budget bill financing the public broadcaster. Unwilling to admit defeat, Sienkiewicz did the unexpected and announced the liquidation of the corporation. His CEO effectively became an executor, independent from RMN jurisdiction. Nonetheless, the court has refused to put the new board in the National Court Register, a decision that the minister promised to appeal.

Quarrels over the Supreme Court or public media are hardly the only relevant disagreements. The Polish justice minister is now “deep in the trenches”, trying to reform the judicial and prosecutorial systems. The boundaries of what is legal and what is legitimate have been pushed to their limits for years in Poland. Due to this, the rule of law crisis has entered a peculiar stage of legal “dualism”. Legal experts challenge each other by trying to answer very fundamental questions over institutional primacy. In plain sight, the conduct of the new government seems to bend the rules to its limits, balancing on the edge of legality. Nevertheless, their actions only target institutions considered to be unconstitutional and incompatible with EU law. Amid the current political climate, the new governing coalition has limited options in repairing the state. Simply introducing legal amendments is not possible without the president’s cooperation. Constitutional control is unfeasible with a dysfunctional Constitutional Tribunal. Thus, in order to restore the rule of law, the new government might elect to not “play by the book”. In this chaos, somewhat reassuring is the positive opinion of the EU Commissioner for Justice, suggesting that these actions constitute legitimate attempts at restoring the rule of law. The conflict of legality versus legitimacy will continue, but can be won, if and only if decision-makers do not lose sight of the democratic principles that led them onto this path in the first place.

Kamil Matusiewicz is a MPP Candidate at Hertie School and an assistant to the project “Recharging Advocacy for Rights in Europe”. 

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Civic platform, Donald Tusk, Law and Justice, Poland, Polish politics