Dince the beginnings of the government of Donald Tusk, inaugurated on December 13, 2023, Polish political life has entered a period of strong turbulence, as if the “conservative revolution” that had been implemented, since 2015, by the nationalist party Law and Justice (PiS) of Jaroslaw Kaczynski was to be defeated by a “liberal counter-revolution”. Each week brings its share of dramatic events: the takeover of the public media, for which the assistance of the police was necessary, that of the public prosecutor’s office by the Minister of Justice, and the spectacular arrest of two former ministers of PiS, convicted of abuse of power, who had found refuge within the presidential palace, are the most striking examples.
Each time, the government was accused by certain observers of using methods bordering on legality in the name of restoring constitutional order. Regarding the so-called “public” media (but conveying brutal government propaganda under PiS), the courts ruled illegal the method of the Minister of Culture which consisted of dismissing the members of the boards of directors. The Minister of Justice, Adam Bodnar, himself admitted to having used a “legal loophole” to dismiss the national prosecutor, Dariusz Barski, a PiS loyalist, whose position was created shortly before the elections to safeguard the party’s interests in the event of a loss of power. In the case of the two former PiS ministers convicted by independent courts, the scale of the means implemented for their arrest, worthy of an anti-terrorist operation, may have given the impression of a political cabal.
These elements must be linked to the reality faced by the new majority, which has inherited crumbling institutional structures and legal chaos unparalleled in modern democracies. In eight years, the PiS has established a real party-state, served by a nomenklatura which has cemented as much as possible the levers of power put at the service of its interests. The government faces a hostile state apparatus, and must deal with President Andrzej Duda, from the PiS, who, with his right of veto, fully assumes his party’s legacy of disrespect for the State of right.
Two parallel legal systems
For eight years, PiS overthrew the Polish institutional order by systematically violating the Constitution. The new power thus finds itself confronted with atrophied institutions, which have become incomprehensible even to the most experienced jurists. More than two thousand judges who have taken office since 2015 have a dubious legal status, because they were appointed by a “reformed” Judicial Council in an unconstitutional manner. The Constitutional Court, also forceps politicized and an instrument of outgoing power, remains a legal anomaly whose legitimacy only the PiS recognizes. As for the Supreme Court, it renders contradictory deliberations depending on whether the chambers seized are composed of independent magistrates or appointed by the PiS.
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