Countervailing forces? Poland’s president Andrzej Duda and prime minister Donald Tusk don’t see eye to eye ©Getty images

Poland’s democratic rehabilitation

Polish democracy was close to death, smothered by populists. What will Donald Tusk’s government have to do to revive it?
February 16, 2024

In the end, it only took two months of heel-dragging for Polish president Andrzej Duda, a staunch supporter of the populist Law and Justice Party (PiS), to finally accept that—despite all attempts to rig the election in their favour—the authoritarian incumbents had lost. Eventually, he swore in Donald Tusk (Civic Platform, PO) as the new prime minister on 13th December. 

Shortly afterwards, the newly minted premier thanked the country’s head of state, saying he hoped their working relationship would be constructive, cooperative and in the service of the Polish people. Tusk appeared to be struggling to control his facial expressions during this speech: he seemed unconvinced that either the president or the PiS was interested in constructive cooperation.

More than two months on, it has become patently clear that Tusk’s misgivings were judicious—and, indeed, that any hopes Duda would be cooperative were wishful thinking. With 18 months left in post, the Polish president has opted for all-guns-blazing opposition, using his veto powers to stymie every single bill Tusk’s new government has brought thus far. In this way, Duda is doing all that he can to derail Poland’s democratic reset—a new beginning of inestimable importance for the country, the EU and everyone who believes that liberal democracy is a form of government worth preserving.

For Polish democracy, Tusk’s victory last autumn came at the eleventh hour. Ruling without portfolio but with an iron fist, Jarosław Kaczyński, the chairman of PiS and hence de-facto leader of Poland, had mentioned occasionally that he needed a third term in power to finally, irreversibly change the country. Voters, it would seem, had listened carefully—and queued in front of the polling stations long into the cold night of 15th October 2023. An unprecedented number, especially of younger Poles, came to cast their ballots, pushing turnout to 74 per cent and surpassing even the 62 per cent of the legendary elections of June 1989, held as the Iron Curtain was falling. Late the following morning, the country surprised itself: Kaczyński’s seemingly ineluctable third term was off. The opposition alliance led by liberal conservative Tusk had won, and by some margin. After eight years, Poland had voted out its populists.

It is in no way excessive to compare this political sea-change with the new -beginning of 1989. The stakes are just as high. Tusk promised to reinstate the rule of law in Poland, and if he succeeds then he will create a blueprint for how degraded, illiberal democracies might restore themselves. It would be a first. Yet as the last few months have shown, fixing a broken democratic system is a tedious, lengthy and highly complicated affair. As one saying would have it, it’s easy to turn an aquarium into fish soup, but no one has yet figured out how to reverse that process.

As an experienced political operator, Tusk—who was president of the European Council from 2014 to 2019, and famously declared that “there is a special place in hell for those who promoted Brexit”—is perhaps uniquely equipped for this difficult task. If he manages to get his house in order he will, as the head of the government of one of the largest EU countries, soon be one of the leading figures in Brussels.

When Tusk authoritatively slammed Viktor Orbán as a security risk for the EU at a Brussels summit on 1st February this year, he signalled a new self-confident Poland that sees its natural home as among those who are actively defending democratic values and supporting Ukraine. With Poland no longer siding with Orbán, the EU as a whole will be stronger and more unified when confronting Putin. Yet Tusk’s victory doesn’t mean that populism is dead—not in Poland and definitely not elsewhere. There is no easy path back to the comparatively innocent times of pre-populist democracy.

Today’s authoritarian populists don’t take power by abolishing democratic institutions, but by getting inside and hollowing them out, stuffing their own party soldiers into the cavity

Indeed, the naive view that a swift return to the status quo ante might be possible is the first of two widely held misconceptions floating around parts of the western press. The second and far more central one is the idea that Tusk is just another illiberal strongman who, following his victory at the polls, will now have his way with the democratic institutions of Poland in the same manner as Kaczyński did before him. This, of course, is exactly the narrative being pushed by the PiS in its attempt to undermine the return to the rule of law. 

And who would understand the importance of democratic institutions better than them? Today’s authoritarian populists don’t take power by abolishing such institutions, but by getting inside and hollowing them out, stuffing their own party soldiers into the cavity. The result is Potemkin-village democracy in which, behind the facades, an autocratic party goes ever further in its quest for control while, all around, corruption—that chronic symptom of authoritarian rule—runs rampant.

©Alamy Unimpressed: President of Poland Andrzej Duda attends the session of the Lower House of Parliament on 11th December 2023. Image: Alamy

In Hungary, this has been Orbán’s modus operandi; in Poland, the PiS has used more or less the same approach to reshape the political landscape. It has been a long, creeping case of state capture, one that was nearing successful completion, and which now leaves countless minefields blocking the re-establishment of the rule of law.

Polish public service broadcasting, the case that has attracted the most attention both inside and outside the country, is an illustrative example. Just days after taking office, Tusk closed the public service broadcaster TVP which had, under PiS, become little more than an instrument of propaganda. It was a strong, clear and early signal that he intended to make good on his campaign promises to restore democratic norms—the hard way if necessary. 

The international press, however, was confused: a government that comes to power and makes immediate moves on the media does not, in stylistic terms, look much like a liberal-democratic one. By occupying TVP headquarters and talking of “dictatorship” and “measures not seen since the days of communism”, PiS adeptly capitalised on this confusion.

To correctly understand what is happening here, it is important to grasp that, for many years, TVP had broadcast almost exclusively disinformation, conspiracy theories and outright lies. Its invective against PiS’s opponents took over the main evening news to an extent that I—as a former foreign correspondent in Warsaw who speaks Polish—never failed to find shocking whenever I was there in recent years. In the months running up to the election, presenters of the 7.30pm bulletin would stress how, in reality, Tusk was a German mole with a secret plan to destroy Poland as a sovereign nation. If you want to get a flavour of what it was like, try and imagine Steve Bannon and the Breitbart boys taking over the BBC. 

With a public service broadcaster riddled from the top down with PiS loyalists, there was no way for a democratic fresh start. Tusk had to act; TVP had to go. Yet the straightforward, legal way of shutting down the channel using institutional processes was impossible—Tusk would have needed the approval of the National Media Council, an entity put in place by PiS in 2016 and staffed mostly with PiS members, who appeared set on cementing PiS’s influence on the media. The way that it was set up was declared illegal by the Polish Constitutional Tribunal (which, back in 2016, was still constituted according to the rule of law) and it would of course have blocked any attempt to reverse TVP’s propaganda-like state. 

Donald Tusk, a man with blonde hair and wearing an open-necked white shirt, speaks into a handheld microphone in front of a crowd wearing black and white and waving red and white flags©Alamy High expectations: In Katowice, Poland, Donald Tusk speaks during an election convention on 12th October 2023. Image: Alamy

In view of this, Tusk decided to take another route—one opened to him by Duda, who refused to authorise the new budget for TVP in an effort to prevent it from being restructured; Tusk then declared it bankrupt under commercial law. The insolvency meant that the company’s directors could be replaced, and so it was that, on 20th December 2023, TVP was switched off. At 7.30pm the next day, surprised TVP viewers once again started receiving news on the broadcaster’s channel. The presenter told them to expect a return to facts, an “objective worldview”, and “clear water in place of murky propaganda potions”—after all, that was what public service broadcasting was there to do, he added. 

Thus far, TVP has remained true to this new maxim for the most part, appearing to do its level-best to keep reporting balanced and neutral. As such, it broadcast live segments about PiS supporters’ demonstrations against the new government and long interviews with (now) opposition leader Kaczyński.

What Poland has been experiencing is essentially a form of legal anarchy

And yet, the Constitutional Tribunal declared the dissolution of the original TVP corporate structures to be unlawful. This was to be expected; the highest court is another instrument that fell under the power of the PiS. After 2016, when the party added a few (of its) judges to it in order to secure itself a partisan majority, the EU and other European courts refused to recognise it as a legitimate institution.

For this reason, the Tusk government rejected the judgement. Adam Bodnar, the new justice minister, declared soberly that it was “erroneous”. He released an official statement explaining that, in view of the fact that the Constitutional Tribunal is, in its current form, illegally constituted, it cannot make legally binding rulings. The statement also noted that, in the case at hand, the judges who presided had, “as PiS members of parliament in 2015 and 2016, dealt with changes to public broadcasting laws, undermining their ability to adjudicate independently on the matter”, which is illegal under Polish law. As such, the restructured TVP management remains in place and continues to broadcast.

As this shows, what Poland has been experiencing since Tusk’s election is essentially a form of legal anarchy. The government is being blocked constantly by a politicised judiciary which—working in unison with the PiS loyalist president—appeals to pseudo-democratic institutions against every attempt that the new executive makes to restore the true principles of liberal democracy.

These continuous acts of sabotage show how misguided it is to assume that there will be a swift return to the way things were. In essence, Tusk is dealing with a dilemma to which there is no immediate answer: switching off the propaganda tool TVP was, albeit requiring a tactical ruse, simple enough. What he cannot do, however, is demote or dismiss the nearly 3,000 judges appointed by PiS since 2018; and he cannot simply abolish the Constitutional Tribunal, as doing so would take Poland from its current state of legal anarchy into one where the rule of law was totally absent.

The most direct and most normal way to de-politicise hollowed-out democratic institutions would be to make changes to the law. Yet Duda is not only sabotaging every attempt by using his veto but is now also taking to the airwaves to denounce the “terror of constitutionality” allegedly unleashed by the Tusk government since last October’s election.

It’s not hard to make out PiS’s true objective here. Duda and his allies are not only trying to talk the current situation up into a constitutional crisis, creating a state of maximum legal and semantic chaos. No, they are trying to do something even more radical—namely to politicise the very idea of constitutionality, depicting it as a weapon used only by PiS’s enemies. In doing so, they are trying to devalue the concept of the rule of law as the nonpartisan foundation of liberal democracy.

The central question that arises from this is of a constitutional nature, and is, in jurisprudential terms, as fascinating as it is new: is it acceptable, necessary even, to break the law in order to restore the rule of law? 

It’s a question that Polish legal scholars are debating. The purists insist on the primacy of adhering to the law and yet have no practical solutions to the current impasse. The Helsinki Foundation for Human Rights and members of the Stefan Batory Foundation (an independent NGO established by -Hungarian-American financier and philanthropist George Soros) have declared that the way the Tusk government went about dissolving TVP was a breach of constitutional principles: members of the government should not be able to replace the directors of a public broadcaster. Yet, at the same time, both NGOs had to admit that, in the face of the damage done to constitutionality in Poland, there were no other options. 

©Alamy PiS off: a crowd of thousands gathers in opposition to the incumbent Law and Justice party in Warsaw on 1st October 2023. Image: Alamy

This didn’t stop them from accusing the new government of unnecessary haste: “the minister could have at least attempted to introduce personnel changes in these bodies and, only after failing to do so, directly dismissed the management and supervisory boards,” wrote one legal expert. But as many critics of the move had to concede, this would have been a purely legalistic process with a very obvious result.

Recognised authorities on constitutional law have reached other conclusions. In a widely read statement, legal expert Ewa Łętowska observed that Tusk is indeed using unsatisfactory “second-choice legal measures”, such as applying commercial law to shut down a broadcaster, but that “when a quick legislative change cannot be counted on, those applying the law should interpret it in such a way as to at least partially return to constitutional principles.”

In a legal system that is antagonistic to constitutionality, it is permissible to use tools that do not adhere excessively to the law in order to return to the spirit of the constitution. When a country is no longer governed by the rule of law but instead by rule by law, illiberal governments can use formally correct legal justifications to cement their power, perverting the legal system. As such, this legal situation can be seen as illegal.

This understanding is anchored in the concept of “defensive democracy”, the principle that laws, legislation and court rulings can limit certain fundamental rights in order to prevent forces from obtaining control through democratic means with the aim of permanently destroying democracy itself. Łętowska refers to the idea of a “militant rule of law” which allows for exceptions within perverted legal systems to the existing rule of law, and for a principled reinterpretation of the rule of law as defined in the constitution.

Is it acceptable, necessary even, to break the law in order to restore the rule of law?

In Poland’s case, Wojciech Sadurski, professor of jurisprudence at the University of Sydney and a professor at the University of Warsaw’s Centre for Europe, spells this out in even clearer language: “As we live in a country that is not democratic… acting as if it were a normal state of law means nothing less than giving up on any reforms, because they are prohibited by law.” Applying this perspective, it becomes clear that in the transition period, submission to PiS laws would be a recipe for democratic failure, meaning as it would playing by PiS rules in a game designed specifically to preserve PiS power. So what matters is the constitution itself, not statutory lawlessness designed to incapacitate future democratic government.

In its eight years in power, PiS never had the parliamentary majorities it would have needed to actually change the constitution itself. Here Tusk is lucky, as he can use it as a compass in the gradual rebuilding of actual democratic substance in Poland. Repairing the system will need a touch as delicate as that used in a game of pick-up sticks. Nonetheless, there are substantial reasons to be optimistic that the Tusk government might eventually succeed in this battle.

So far, in the face of loud and shrill PiS accusations that Tusk’s attempts to democratise Poland once more are nothing short of a coup d’état, the new Polish government has largely kept its cool, calmly explaining its goals and trying to make changes without unnecessarily ruffling feathers. At times, it could stand to explain its motives more clearly—the minister for culture never detailed the reasons for switching off TVP, which was insensitive at best—but on current trends it doesn’t look as if PiS will be able, in the medium term, to hold the government back.

There remains a risk of Tusk getting bogged down or wounded by a backlash—especially now that Kaczyński and his followers have, since their banishment to opposition, become markedly radicalised. Their polling numbers have worsened since the election, however, and Duda’s earlier plan to call for a fresh ballot seems to have been quietly dropped. As such, the next big electoral test will now be the regional and European elections to be held this spring; if the new governing coalition wins here, too, that should stabilise Tusk further and keep his administration on course. 

Another potential boon would be the release of the €36bn of EU funds promised to Tusk once the PiS “judicial reforms” have been repealed. Duda, who has repeatedly used his veto to block legislation that would let these billions flow, will at some point find himself with his back against the wall. As such, what people in Poland—and all those excitedly observing this societal transition—need more than anything is patience. 

Indeed, Duda, the greatest antagonist to democratic reforms, cannot stand again at the next presidential election in summer 2025. If a candidate endorsed by the governing coalition is elected, as looks very likely, the real work of re-democratisation will be able to start.

Above all, Tusk and his government should resist the temptation to see themselves as “crusaders” against the PiS and as “avengers” of democracy. Instead of putting up their own loyalists whenever a democratic institution needs to be re-staffed, they will need to make good on the promise to restore true impartiality—as with public service broadcaster TVP. Replacing biased judges with ones who understand the importance of a neutral judiciary might seem like a good short-term solution, but really it would be short-sighted—the system would still be vulnerable to new threats in the future.

Rather, the foundations of democracy need to be renewed and reinforced so that in future it is far more difficult for any government to vandalise them to the same extent as the last two PiS administrations. The challenge is clear: to make sure that illiberal populism, if ousted from office in a democratic election, cannot easily make a comeback. We are currently seeing just what a real possibility this is with Donald Trump; Keir Starmer will similarly face many quandaries if he wins the oncoming election.

What we need to ask ourselves is this. With rising post-trust populism everywhere, how can we shore up our democratic systems to resist future attacks from anti-democratic populists?

On foreign policy, Tusk is set, at the end of Duda’s term if not before, to become one of Europe’s most important heads of government—and potentially an uncomfortable sparring partner for Germany. Although Tusk is certainly not known for the kind of anti-German jingoism of his predecessor—indeed, to the point that Kaczyński repeatedly accused him of being a German agent—an economically successful Poland with a renewed sense of self-confidence will no longer be content to be the third wheel in the “Weimar Triangle” between Berlin, Paris and Warsaw. Germany’s initial hesitation in supporting Ukraine has reawakened a deep-seated scepticism in Poland vis-à-vis Berlin; the fact that Tusk’s first foreign visit was to Kyiv was not accidental.

Meanwhile, Europe as a whole should take note of what can happen when autocratic populists rise to power, and of how incredibly difficult, lengthy and confrontational the process of restoring a shattered liberal democracy is. Facing down the kind of autocratic populism that is thriving all over the world simply doesn’t allow for “playing by the rules” and “soft transitions”: uncorrected, the pseudo-democratic systems the populists establish will leave voters more disillusioned with politics, and make the soil for future autocrats ever more fertile. 

This renders events in Poland all the more important. Rebuilding a European liberal democracy out of one that has been made illiberal is, after all, pioneering work. If Tusk succeeds, we will know that the pernicious effects of populism can be reversed—and for the first time, we’ll know how to do it.