VISEGRAD BLOG: Poland will be a test case of how to reconquer the state and rebuild a liberal democracy

VISEGRAD BLOG: Poland will be a test case of how to reconquer the state and rebuild a liberal democracy
Donald Tusk’s broad coalition government is in an all-out war with President Andrzej Duda.
By Robert Anderson in Prague February 22, 2024

When new governments take over in Central Europe, it is often a chaotic affair. There is little tradition of neutral public service, so ministries and state companies are usually purged so the incoming parties’ supporters can get their snouts in the trough.

But even by regional standards, the ongoing changeovers in Poland and Slovakia have been bloody, following the elections there last autumn.

In Poland, Donald Tusk’s broad coalition government is in an all-out war with President Andrzej Duda, a Law and Justice (PiS) loyalist who seems to see his main role as defending his radical rightwing party’s placemen in the semi-authoritarian system leader Jaroslaw Kaczynski built up over two terms in power.

In Slovakia, Robert Fico’s new leftist coalition has focused on retaking control of the police and prosecution service. It is now ramming through a criminal justice reform that will give a ‘get out of jail’ card to many of its supporters who are currently in jail or were facing prosecution for corruption under the outgoing centre-right government. The bill has sparked big demonstrations and the progressive President Zuzana Caputova last week sent it to the Constitutional Court. She has also refused to approve the government’s new spy chief.

The European Commission is desperately trying not to become involved in both countries’ domestic politics, particularly given the looming European parliamentary elections in June; nevertheless, it will have to take a stance.

The Tusk government is seeking the quick release of EU aid to Poland, which was frozen because of the PiS administrations’ violations of the rule of law, notably by its take over of the judiciary. In response, PiS argues that the government is itself violating the rule of law by firing its appointees, and that any release of aid would prove that the Commission’s stance has always been biased.

Meanwhile in Slovakia, the opposition parties hope the Commission will punish the government by freezing EU aid because of its deliberate obstruction of the fight against corruption.

The changeovers are very different – Tusk is rebuilding democracy while Fico is dismantling it – but how they  play out, and how the EU responds, will have a crucial influence on the Commission’s struggle to preserve the bloc’s values against populist attempts to subvert the rule of law, led by Viktor Orban’s Hungary.

Embezzlement with impunity

In Slovakia, the issues are fairly clear. The Fico government pushed through in a much shortened procedure a package of reforms that abolish the Special Prosecutor’s Office (which specialised in corruption cases), cut penalties for financial crime, reduce the statute of limitations for when prosecutions can be made, and weaken protections for whistle-blowers. After the changes, bribery of up to €250,000 could be punished with just a conditional sentence.

The criminal justice reforms increase the risk of EU funds being embezzled with impunity– already a serious problem in the country – and therefore the Commission should freeze further payments until they are reversed.

Fico is already meeting strong resistance from opposition parties, civil society and the media. The Constitutional Court may intervene to frustrate the government’s plans. Already it appears that the latest tranche of Slovakia’s EU Reconstruction Fund payments worth €900mn has been suspended.

The Slovak economy is stuttering and the budget deficit has ballooned, so freezing EU funds could really hurt. If the EU acts firmly, there is therefore a real possibility that Fico’s attempt to neuter the police and judiciary system could be halted.

The problem, however, is that the Commission may not have the stomach for this fight, given that its existing conflicts over the rule of law with Poland and Hungary are sapping its energy, and it is now nearing the end of its term. There is also a fear that punishing Fico’s government will just drive it into an alliance with Orban, further paralysing EU decision-making.

Wringing of hands

In Poland, by contrast, the issues are more nuanced. Liberal commentators are already wringing their hands that Tusk’s government is being too aggressive in dismantling the PiS system. They would prefer it to take a softer approach and if necessary wait until Duda steps down next year before making key changes.

Tusk’s muscular liberal government has removed a raft of PiS appointees, including the CEOs of state companies and the head of the National Prosecutor’s Office. It has also launched enquiries into PiS scandals over Pegasus spyware, the aborted postal vote campaign, and the corrupt sale of work visas. It now appears to be gearing up to investigate the central bank’s blatant attempts to help the government before the election. Most controversially, it has bankrupted the public broadcaster in order to change its management.

Tusk’s government has had to look for loopholes or even bend the rules because it faced a much tougher challenge than Fico did when it assumed power. PiS had inserted its placemen everywhere, and changed the rules of the game so that removing them could be blocked by either the president or the captured Constitutional Tribunal. Moreover, overriding the presidential veto in Poland requires a 3/5 majority in parliament, which Tusk lacks, rather than a simple majority as in Slovakia.

There is a real risk now that Poland will remain stuck in “legal dualism”, with the PiS refusing to recognise the changes the government has made. This would lead to continuing political polarisation and create huge uncertainty for businesses and foreign investors.

The Tusk government hopes to replace Duda with its own candidate in the presidential election next year, which will enable it to complete its reforms and its changes of personnel much more easily. However, even if that happens, PiS on current form looks unlikely to accept the legitimacy of the changes and would attempt to reverse them if it ever returns to power.

Dismantling authoritarianism

Liberals are fundamentally misunderstanding the nature of the PiS system if they believe Tusk should tread water, just as they underestimated Orban when he returned to power in 2010.

Using at best borderline illegal means, the Hungarian and Polish radical rightwing governments took over all state institutions, the judiciary and the media to try to ensure that they would never lose power again. When the rules wouldn’t allow them to do what they wanted, they simply changed the rules.

Freedom House now categorises Hungary a “hybrid regime”. Orban has so hollowed out Hungarian democracy that it is hard to see him ever losing an election again. Kaczynski came very close to completing the same process before his surprising election defeat last October.

Rather than assessing each action by the Tusk government for its compatibility with the rule of law, each must be seen as part of a concerted drive to dismantle an authoritarian system. The Tusk government cannot be expected to bind itself in knots because of dubious rules passed by authoritarians. These rules must be seen as parts of an authoritarian system and thrown out. There should also be no compromise with the party placemen who were inserted into posts just to carry out the regimes’ orders and frustrate any attempt at future reform.

If the Tusk government simply gives up the first half of its term and treads water on the hope of winning the presidency, it risks PiS sabotage of its policies and a collapse of trust in politics. Both would help PiS return to power and complete the job of hollowing out Polish democracy.

The Czech example shows the risk of this approach. While in opposition, the centre-right parties accused billionaire populist Andrej Babis of taking over the state and running it for the benefit of his agro-chemical conglomerate Agrofert. Once in power under Petr Fiala, they did not launch any serious anti-corruption drive or any investigations of the Babis government’s scandals, such as its handling of the COVID-19 pandemic (and it has also had its own scandals). The result has been a collapse in support and likely defeat at the next general election.

Tusk has had to move fast to dismantle the PiS system, just as any future Hungarian democratic government would have to do so to destroy Orban’s system.  Poland will be a test case of how to reconquer the state and rebuild a liberal democracy.

Nevertheless, the EU should not rush to judgment on Poland but should release its funds gradually, depending on how the government’s retaking of the state and rebuilding of the rule of law is working out in practice.

The key issue should be whether the new government is establishing a robust system of state bodies, with real power, and staffed by competent, independent people. The government must also respect that system by allowing these bodies to act independently as a genuine check and balance on the executive. This would build professionalism and encourage public trust – marking a real contrast with what happened before – and make it much more difficult for a future PiS government to dismantle it ever again.