Poland’s experience is a warning for an EU with the far right on the rise in the polls. After eight years of an ultra-conservative Law and Justice (PiS) government that undermined the rule of law, Donald Tusk’s Liberal Executive – a coalition of centre-right parties with a progressive minority – faces major challenges in restoring democratic health. It has been almost six months since he came to power, which have already brought victories, but which have also been fraught with obstacles, controversies and challenges.
Radoslaw Markowski, director of the Center for the Study of Democracy at SWPS University in Warsaw, defines the process as an “uphill battle” that faces “continuous sabotage” by the president, Andrzej Duda (a member of PiS until he took office). post). The main task to dismantle “the regime of authoritarian clientelism”, as defined by the ultra-conservative legislatures between 2015 and 2023, is to rebuild the rule of law.
The architect of this great reconstruction is the Minister of Justice, the jurist and former Ombudsman Adam Bodnar. In conversation with EL PAÍS, he agrees that one of their main obstacles is that they do not have the three-fifths parliamentary majority necessary to reverse the president’s veto, which Duda frequently exercises. The minister points out that some laws will have to await a friendlier president, he hopes after the 2025 elections. “We use non-legislative methods, but we have limited possibilities of doing things comprehensively,” summarizes Bodnar.
The former government controlled by Jaroslaw Kaczinsky “assaulted” justice “from the moment it came to power,” says Markowski. Critics denounce that he placed like-minded people in the Constitutional Court, the Supreme Court and the National Council of the Judiciary (KRS, in its Polish acronym), the governing body of judges, which became elected by politicians instead of by the judges. Tobiasz Bochenski, PiS candidate in the European elections and doctor of law, assures, however, that his party’s judicial reform was inspired by countries such as Germany and Spain. The deputy maintains that it was designed to improve the effectiveness of the system and reform the judicial career, in the hands “of an oligarchy.”
The changes promoted by former Justice Minister Zbigniew Ziobro, including the disciplinary system for judges, compromised judicial independence, according to the European Commission, and cost the country the suspension of 59.8 billion euros in recovery funds. Also the beginning, together with Hungary, of the procedure that can withdraw the right to vote in the Council.
“Victory” in Europe
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Bodnar, with an action plan and a firm commitment to reforms, has ensured that money has started to flow to Warsaw and that the Commission has definitively closed the Article 7 procedure this week. “A great victory”, according to Jakub Jaraczewski, research director of the Democracy Reporting International think tank, because he has achieved it after introducing “some improvements in the rule of law, but without major reforms.” Like other analysts, the expert believes that the Commission’s decision, based more on promises than on facts, is politically motivated.
Tusk won the elections promising a tough line against his predecessors and a deep cleanup to recover PiS-controlled institutions. Beyond the reflections on the double standards of the Commission or the desire for revenge of a part of society and politics, some jurists denounced that the first movements of the Government were made on the verge of legality and in some cases, infringing the law. The clearest occurred a few days after his inauguration, with the first attempt to take over the public media, accompanied by grotesque scenes such as sit-ins by PiS politicians at the headquarters of those media. After those turbulent days, public television has changed the propaganda programming that spread hate culture to broadcast less partisan news. The general opinion is that they are very boring now.
The controversy has now moved to the legal community, due to the reform of the judiciary. The big mess is what to do with the more than 2,500 judges—and their sentences—that the National Judicial Council appointed during the PiS era, taking into account that many appointments and promotions were politically motivated. The main associations of judges want to see these magistrates, known as new judges, dismissed and without the possibility of participating in the decisions of the governing body of the judges. Other organizations, such as Jaraczewski’s, the Helsinki Foundation for Human Rights or Amnesty International, believe that each case should be studied and defend, in line with the Venice Commission, that these new judges can participate in the KRS. “The tension and friction are significant,” Jaraczewski describes. According to Bodnar, the Government is still reflecting on the issue.
Malgorzata Szuleka, from the board of the Helsinki Foundation for Human Rights, where Bodnar worked in the past, reflects on a phenomenon that also clouds the process of returning to democratic normality. As a power control entity, her organization has criticized the new Government when it has taken dubious steps. In a deeply polarized society that comes from an Executive with authoritarian overtones, criticizing liberals is frowned upon. There is even a derogatory adjective: “Symmetrist”. “They call us everything, even ‘new judges’ defense front,’” says Szuleka in his office near Parliament, when what they seek is for the process of restoring the rule of law to be unquestionable.
The judiciary law is already in the Senate, a few steps away from Duda’s signature or veto. Another norm with an even more uncertain future is the one that seeks to reform the Constitutional Court, a body instrumentalized by PiS. With three judges sitting on the Court whose appointment is considered unlawful, and a president whose mandate is believed to have expired, the Sejm, the lower house of Parliament, approved a motion that strips it of legitimacy. The Government, as the minister acknowledges, ignores the decisions of the Court, which systematically opposes any initiative of the Executive.
Electoral brake
In the long term, Bodnar hopes that political parties will agree to make a “constitutional reset,” but he believes that the time has not come. The succession of elections does not help. Poland held regional and local elections in March and April and is immersed in the campaign for the European elections. On the horizon are the 2025 presidential elections.
The elections, with a very diverse coalition that addresses very different voters, have also prevented progress on other pillars of consolidated democratic societies, such as civil rights. Milosz Hodun, president of the Projekt: Polska Foundation, describes the PiS governments “as very dark times.” The ultra-conservatives cut off funding and access to the Administration to NGOs and organizations defending the right to abortion, migrants, refugees, the LGTBI community, etc., and created an alternative network. “We learned to be independent and some became more active than ever,” he explains in his office in the center of Warsaw.
“PiS did not change many laws, but it created an environment of hatred towards LGTBI people, activists, judges, prosecutors…” explains Hodun. Now there are even ministers of Civil Society and Equality. Another thing is that the Government’s most conservative partner, the Third Way coalition, is slowing down long-awaited laws, such as the legalization of abortion or equal marriage, which will remain civil unions. “The internal conflicts are very visible,” says the analyst, who recognizes that the illusion generated by the victory of the liberals is dissipating because many people are impatient because the changes are not coming.
Szuleka did not have high expectations in the area of human rights, although he acknowledges that the rhetoric has changed, “which is liberating after eight years of being considered a Soros agent.” Regarding the rule of law, her other area of action, she states that she was among those who thought the process was going to be “long, convoluted and painful.” “We have opened a new chapter of a great crisis, which continues.”
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