Duda-Tusk clash pushes Poland closer to institutional crisis in first month of liberal government

The first month of Donald Tusk’s new coalition government in Poland has been highly convulsive. The confrontation between the liberal Executive and the institutions controlled by the ultra-conservative Law and Justice party (PiS) is constant. Every initiative to restore the rule of law and regain the power of public authorities is met with opposition from bodies such as the Constitutional Court and the head of state, occupied by the president, Andrzej Duda. The country teeters on the brink of a crisis in which both sides struggle to maneuver while questioning the legitimacy of some institutions and their decisions.

The last few weeks have produced dramatic scenes including the arrest at the presidential palace last Tuesday of the former interior minister, Mariusz Kaminski, and a former deputy minister, Maciej Wasik, convicted of abuse of power. Duda sought to protect them, but the police gained access to the palace while the president was away. There have also been incidents such as the occupation of the headquarters of the public media by PiS deputies to prevent the replacement of the directors. The latest chapter these days features the national prosecutor, who refuses to leave his office after the justice minister, Adam Bodnar, has decided to replace him. This is all happening with the encouragement of Jaroslaw Kaczynski, the leader of Law and Justice, who last week successfully called for a mass demonstration in freezing cold weather conditions in Warsaw.

Duda and Tusk, who head the two main state institutions, held a meeting on Monday and the encounter only highlighted the confrontation between the two men. In separate appearances, the president said he asked the prime minister to “please stop trying to break the law.” The head of government retorted that his team would continue to “restore the legal order, whether anyone likes it or not.”

After eight years of an ultra-conservative government that endeavored to cement an illiberal regime in permanent confrontation with Brussels, the coalition of three liberal forces won last October’s election with the promise of restoring the rule of law. The partners — a mixture of center-right parties with a social-democratic minority — were well aware that the task was not going to be an easy one. The PiS Executive had installed people loyal to the party at the head of the main institutions and some of these positions are safeguarded until the end of their terms of office, as is the case of the Constitutional Court. Any new legislation also requires the signature of Duda, a man who left his PiS affiliation to become president, but who has demonstrated his loyalty to the party and has warned that he will not hesitate to exercise his right to veto.

In view of this scenario, Tusk and his ilk are delving into the laws to look for loopholes and devise strategies that will allow them to achieve their goals, starting with the cleanup they promised in the PiS-controlled institutions. Stanley Bill, professor of Polish Studies at Cambridge University and founder of the Notes from Poland website, highlights the damage done by PiS to institutions, but he is critical of the Government’s first steps to repair them: “The approach is confrontational and its goal is to show force, move fast and, if necessary, borderline legal or, as one court has already ruled, in some cases, crossing the line into illegality,” he says, as in the case of the government’s first attempt to oust the leadership of the public media. The academic acknowledges the monumental challenges facing the Executive, but warns of the danger of resorting “to the same methods used by the PiS to politicize these institutions.”

Imprisoned politicians

Among other issues, on Monday Duda and Tusk discussed the replacement of the national prosecutor, Dariusz Barski, announced by Bodnar last Friday. The case of the most senior position in the public prosecutor’s office after the prosecutor general — who for now is the head of Justice — illustrates the political and legal developments of recent weeks. Duda argues that the appointment of a new national prosecutor requires consultation with the president, which has not yet taken place, and this is what he communicated to the Constitutional Court in a consultation. However, Bodnar defends that the nomination made by the PiS in 2022 was illegal and assures that he has only established such a fact and has appointed an acting role until a permanent replacement is chosen. The Constitutional Court, called into question by the liberals for their belief that it serves the PiS, has ordered the suspension of Barski’s replacement, and Bodnar has branded the decision as “flawed”.

The episode of the arrest of Kaminski and Wasik is another sign of the chasm between liberals and ultraconservatives. A court sentenced them to two years in prison in December for abuse of power in a 2007 land reclassification scandal. Duda issued them a pardon in 2015, but a Supreme Court chamber not controlled by the PiS invalidated the decision because it was granted when no final sentence had yet been handed down. After the now former deputies went to prison, Duda initiated the procedures for a new reprieve, but instead of using the measure of grace at his disposal, which has immediate effect, he chose to do so through a judicial process, which is longer.

Stanley Bill expects the confrontation between the Government and the Constitutional Court to escalate. He feels the same about the Executive and the Head of State and the opposition and the parliamentary majority. “We have an extremely chaotic period ahead of us in which the conflict is going to escalate and where there is a sense that there are two entirely separate legal realities,” explains the academic by telephone.

Jakub Jaraczewski, research coordinator of the Berlin-based think tank Democracy Reporting International, concurs that “the situation is serious. Never in post-1989 Poland [the end of communism] has the transfer of power been so hostile and seen the outgoing political power abuse state institutions with the aim of sabotaging the incoming government,” he points out.

The expert on constitutional law recognizes that some decisions of the Tusk government are “only technically legal” and others have directly “bypassed the law.” “As much as I would rather it were different, it appears that some hardline elements will be necessary due to the entrenchment of the previous ruling party and all the traps it has laid,” he says.

Only something unforeseen or the proximity of the local elections in April and the European elections in the summer could defuse the tension. At this stage, the Liberals retain their popularity in the polls despite their more dubious performances. It remains to be seen whether the PiS will maintain its stance or tone it down in order to attract undecided voters.

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