After the Polish elections last weekend all eyes are on President Andrzej Duda. Will the one-time Law and Justice (PiS) loyalist do his best to obstruct the incoming Civic Platform-led government, or will the president, who cannot be re-elected again, now look to his place in history and be co-operative in the best interests of the nation?
Duda is widely expected to give Jaroslaw Kaczysnki’s radical right-wing PiS, as the largest party, the first chance to form a government, even though the opposition under centre-right Civic Platform leader Donald Tusk looks certain of forming a cabinet that would command a majority of 248 in the 460-seat parliament.
With PiS expected to drag this process out, Tusk might not get a chance to form a government until mid December at the earliest.
Political experts predict that Tusk’s Civic Coalition, the centrist Third Way, and the Left will form a government that should be relatively stable, but they warn that it will be very heterogeneous, with serious differences on economic and moral/cultural issues. For instance, the Left calls for increases in public spending and abortion liberalisation, while the Third Way alliance demands tax cuts and does not want abortion to be in the manifesto.
“The one thing that unites them is getting Law and Justice out,” Professor Aleks Szczerbiak of Sussex University told a School of Slavonic and East European Studies (SSEES) seminar in London on October 18. “Beyond that it will be very difficult to agree on a government programme.”
Even on relations with the European Union, which all the coalition parties want to rebuild, there is little clarity on its approach. The opposition deliberately shed little light in the campaign on topics where Poland is sensitive, such as policies against climate change, the conditions of Ukraine’s accession to the EU, as well as reform of the bloc to make further enlargement possible, including restricting states’ vetoes.
Szczerbiak predicts the new government will move quickly to try to release EU aid frozen because of PiS’ violations of the rule of law. “But beyond that it is very difficult to know what this government would do,” he told the seminar.
Both in domestic policy and in foreign policy – where the president has greater powers – Duda could be very obstructive. For instance, many of the changes required to release the EU funds will require legislation to restore the rule of law, which the president can veto or refer to the Constitutional Tribunal, whose 15 members have all been appointed by PiS-dominated parliaments.
“There will not be a watershed moment [in EU-Polish relations],” Jakub Wisniewski, special advisor to the Globsec security think-tank in Bratislava, predicted to bne IntelliNews in an interview before the election. “There will be a slow grind of Poland back to the EU’s centre.”
It will be a grind partly because the incoming coalition does not have 60% majority to overturn the presidential veto. If he wished, Duda could obstruct every step of the new government until he steps down after the next presidential election in summer 2025.
Political experts predict he will not do this, if only because he may want to have a career in international institutions after stepping down and such behaviour would prevent that. “I don’t think that Duda is a major threat,” says Wisniewski, who was a former Polish ambassador to the OECD.
Nevertheless, there is likely to be a big fight over the incoming government’s plan to dislodge the PiS’s grip on state institutions, state companies, the public media and the judiciary.
The coalition argues this personnel overhaul is essential to prevent sabotage, improve efficiency, end corruption, restore democracy and to qualify for the release of frozen EU funds.
PiS will inevitably argue that the personnel changes are unconstitutional, although it itself conducted a huge purge when it took over in 2005, and then built up a new system dominated by its own appointees that is very difficult to dislodge.
“On each political cycle this swing of the pendulum gets bigger,” says Wisniewski. “This time [the purge] will be much more massive.”
To remove some of the PiS’s placemen, who often have fixed terms, the government might need in some cases to change the constitution – for which it does not have the required majority – or pass bills, which Duda and the Constitutional Tribunal are likely to block.
Alternatively, the government could take the extra-constitutional route and make a direct assault on the former government’s takeover of the Polish state, arguing that it was itself against the constitution.
Horses for courses
The incoming government is likely to choose different tactics for different insitutions.
In the public media, the heads of the state TV, radio and news agency are appointed by the National Media Council, which is wholly under the thumb of the PiS. Critics joke that the public broadcaster has become even more biased than under Communism. Removing its leadership is seen as a top priority.
The seminar's panellists said the incoming government could try to pass a vote of no-confidence in the members of the council and then appoint new members who would change the broadcaster’s chiefs. If that were ruled unconstitutional, it could even try to put the broadcasters into bankruptcy to force a change in the leadership.
The most difficult area is the judiciary, which has been deformed under the last eight years to bring it under the control of the ruling party, leading to conflict with Brussels. Both the European Court of Justice and the European Court of Human Rights have passed judgements against the changes in the Polish judicial system.
The easiest of the necessary judicial reforms, according to Associate Professor Agnieszka Kubal of SSEES, is to split the role of the minister of the justice and the prosecutor-general, currently both held by Sovereign Poland leader Zbigniew Ziobro. “Those two roles need to be separated and checks and balances need to be introduced,” she told the seminar.
The second key reform is to end legal dualism and return the system to the status quo ante by sacking all the incorrectly appointed judges, or alternatively to mount a root and branch reform through a new bill, though this could again be vetoed or ruled unconstitutional.
However, undoing the previous government’s changes could plunge the legal system into chaos, given that hundreds of judges have now been appointed under the flawed new procedures and they in turn have made thousands of legal judgments.
“It would not be possible to disentangle the legal chaos that would follow,” says Wisniewski.
Almost as problematic is how to reform the Constitutional Tribunal, which has three incorrectly appointed judges. The new justice ministry would either have to take the potentially unconstitutional step of sacking the three judges, or would have to pass a bill to overhaul the whole set-up, which of course could again be vetoed by Duda or ruled unconstitutional by the tribunal.
Kubal argues that this reform is also nevertheless vital. “Before 2015 the Constitutional Tribunal attracted respect and esteem. Now the court has been marginalised,” she says.
Wind of change
Some political experts believe that this battle over personnel will not be so bloody as many forecast.
When the liberal opposition forms a government “the whole machinery of state, which currently plays in favour of Kaczynski, will turn to the other side. The wind will change,” says Wisniewski. “If people see that PiS is gone for good they will co-operate.”
The government could help this change of mood by adopting a carrot and stick approach, offering generous severance packages, while threatening to unleash the Supreme Audit Office to investigate malfeasance by those who are refusing to go quietly.
Legal experts advise that it would also be damaging for the long-term stability of Polish institutions if the government launches an indiscriminate purge that is potentially unconstitutional. “The institutions need to be given their respect, made independent and protected,” says Kubal.
There is also the thorny question of how the EU Commission would respond to a constitutional showdown in Poland. Would it back the new pro-EU government or would it say that constitutional proprieties must be respected, even if the institutions were established improperly and with the aim of entrenching PiS rule? Turning a blind eye to an incoming government's unconstitutional acts would certainly be used by Law and Justice as proof that the EU's rule of law complaints were just political attacks.
How Brussels decides would also indicate how it might respond in the future to any opposition attempt to dismantle the even more deformed political system of Hungary’s Viktor Orban (if of course it is still possible for the opposition to win an election in Hungary).
Radical right-wing populists such as Orban and Kaczynski believe they represent the people against the corrupt old elites and that they must win control of the state and exclude all other political groups from any stake in power. This means that once they win power they destroy pluralism, hollow out democracy and make it very difficult for centrists to remove them. Poland will now be a test case of how to reconquer the state and rebuild a liberal democracy.
Wisniewski argues that the incoming government might actually be able to use the EU in this process, by appealing problematic issues to the European courts, which should have primacy in assessing key issues of the rule of law.
“You can use the EU as a source of judgement, legal advice, problem solving,” he says. “[Former European Council chief] Tusk has huge authority in Brussels. Pushing problems to the international level would help Tusk.”
The Commission could also give the incoming government an immediate boost by dropping the rule of law complaints, even if the reforms were still being obstructed by Duda and the Constitutional Tribunal.
However, this has its own risks. “This would play into the Law and Justice narrative,” says Szczerbiak, arguing that PiS would say that this shows the EU’s rule of law complaints were purely political.
These worries show that unless Duda does co-operate to some extent, the government could face a very rocky ride until the summer 2025 presidential election, almost half way through its term.
“This election will be absolutely critical for this government’s future,” says Szczerbiak.
Whatever happens, Poland deep political polarisation – personified by Tusk and Kaczynski – could therefore worsen in the short term.
“It will take many years to restore sanity and to bring the fever down,” says Wisniewski.