Polish President Andrzej Duda accuses the new government of creating “terror,” a “terror of the rule of law,” by presenting a series of violations of the law by new Prime Minister Donald Tusk that the latter has allegedly carried out since he was sworn in in mid-December.
From the point of view of Prime Minister Donald Tusk’s coalition, the exact opposite is true: for him, the decisions taken are necessary steps to rid the country of the “Regime” that the previous PiS-led, legitimately elected government allegedly created in the eight years it was in government. Meanwhile, the PiS leadership presents a Manichean judgment of Tusk’s team.
This is not just a rhetorical skirmish. A quarter of a year after PiS’s defeat in parliamentary elections, Poland is sliding into a constitutional crisis that could turn into a national crisis. The president and the government increasingly clash over which laws should be enforced and which should not, and which court decisions should be recognized and which should not.
Chaos advances in the judicial power
The situation continues in the judiciary: two branches of the Supreme Court have issued contradictory rulings on the same politically sensitive issue and have denied each other the right to rule on the matter; in the prosecutor’s office, two men are issuing instructions claiming to be the rightful leader—one man from PiS and one who has been appointed by the new government in its place.
Over the past eight years, PiS has reorganized the judiciary, public media, state-owned enterprises, and public services to serve the party. In doing so, of course, it made its own rules and appointed its own men, as any governing party would have done; just look at what is happening in France, for example. In this, he was supported by President Duda and the Constitutional Court, which PiS brought under his control from the beginning of his government. After all, no European country has ever seen a government appoint its opponents to the top of its institutions.
The Constitutional Court follows the previous government (as a matter of course).
Elections have changed the government for now, but they cannot erase the offices appointed by PiS. It does not end the “Spain system” in Poland, as it does not exist, unfortunately, in any European country. Any government takes the bureaucratic apparatus or judiciary appointed by predecessors, and so it is in Poland as well.
If the new governing alliance wants to fulfill its election promise to depoliticize the judiciary, or rather to repoliticize it in its own image and likeness, making it closer to the standards desired by Brussels, it will have to amend numerous laws passed by PiS. But there are two obstacles: the President and the Constitutional Court. Both continue to act fully in line with the PiS party line of resistance in the power struggle.
Duda will remain in office until the summer of 2025, and the majority of judges loyal to PiS will remain on the Constitutional Court until at least 2027. The new government’s majority in parliament is not large enough to override the presidential veto. If Duda continues to maintain a confrontational attitude, a permanent blockade cannot be avoided.
The government has a chance to bypass the Constitutional Court by casting doubts on its composition and acting as an arm of the European courts. For this reason, the government has already ignored two Constitutional Court rulings in the dispute over the restoration of public media. In other cases, it has made decisions denying the validity of PiS-era regulations. However, by doing so, the government is creating a gray area in which its asserted respect for the “rule of law” is being blurred.
Of course, Germany supports the new Tusk government in this direction, but this makes it more fragile domestically and politically and demolishes its claim to act only for the restoration of the rule of law and the constitution. If this is to be respected, it must be so for all; it cannot be respected only when it suits. The diverse coalition supporting Tusk has opposition to PiS as its raison d’être, but it is much less organic. It may not be able to bring its own presidential candidate to victory in 2025. If not, the stalemate would continue, and pro-Europeanism is unable to compromise, even when the structure of the state is at risk.