POlen's President Andrzej Duda accuses the new government of “terror” – a “terror of the rule of law”. He portrays their policies since they were sworn in in mid-December as a series of lawbreaking. From the perspective of Prime Minister Donald Tusk's coalition, exactly the opposite is true: they describe the decisions because of which the President sees Poland slipping into lawlessness as steps to restore the constitutional state after its dismantling by the right-wing populist PiS, to whose camp Duda belongs.
These are not just rhetorical skirmishes. A quarter of a year after the PiS's defeat in the parliamentary elections, Poland is sliding into a constitutional crisis that could develop into a state crisis. The president and the government are fighting on more and more fronts about which laws should be applied and which should not, and which court decisions should be recognized and which should not.
In the service of the PiS
This continues in the judiciary: two chambers of the Supreme Court have made opposing judgments in the same politically explosive matter and mutually denied each other the right to decide on the matter; In the public prosecutor's office, two men who claim to be their legitimate boss are giving instructions – a PiS man and one whom the new government has put in his place.
The reasons for this development lie in the PiS's time in power and its refusal to accept the loss of power. Over the past eight years, PiS has restructured the judiciary, public media, state-owned companies and civil services so that they served the party. In doing so, it violated the constitution, bent laws and ignored rulings from Polish and European courts. She was supported in this by President Duda and the Constitutional Court, which brought the PiS under control at the beginning of its rule.
Constitutional Court on PiS party line
The PiS has given up government power. Given the majority situation after the October election, there was no way that looked remotely legal to prevent this. But the PiS doggedly defends its bastions in the state institutions, especially in the judiciary, which remains the central battlefield of Polish politics. If the new government alliance wants to realize its election promise to depoliticize the judiciary and restore its independence (which is also a prerequisite for the payment of billions from the EU Corona reconstruction fund and thus for the implementation of many announcements), it must pass numerous decisions made by the PiS Change laws. But there are two obstacles standing in the way: the President and the Constitutional Court. Both continue to act entirely on the party line of the PiS, which is apparently prepared to destabilize the Polish state in the fight for power, whose strength is supposedly its highest goal.
Duda will be in office until the summer of 2025, and there will be a majority of judges loyal to PiS in the Constitutional Court until at least 2027. The new government's majority in parliament is not large enough to override a presidential veto. If Duda remains on a confrontational course, a permanent blockade cannot be avoided. The government has a chance to bypass the Constitutional Court because there are serious doubts about its legitimacy in its current composition. These are reinforced by judgments from European courts. Citing this, the government has already ignored two rulings by the Constitutional Court in the dispute over the restoration of public media. In other cases, it has made decisions by denying the validity of rules from the PiS era.
The difficult repair of a damaged democracy
In each case there were reasons for this, which were supported by luminaries of Polish constitutional law. Nevertheless, the government is entering a gray area in which its assurances that, in contrast to the PiS, it will only act with clearly constitutional means is beginning to blur. But at the moment she has no choice but to move forward on this path. If she didn't do that, it would be tantamount to capitulating to the PiS – and thus a betrayal of the voters of the coalition parties. All other projects for which they were elected are subject to their winning this fight.
The PiS's election defeat was seen by many in Europe as a sign of hope that it is possible to defeat authoritarian and anti-European forces. The political battle now being waged in Poland shows how difficult it is to restore a democracy once damaged.
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