EU liberals crushing the law in Poland by ‘transitional justice’

What has been going on in Poland since December 13, when Donald Tusk’s left-liberal coalition government was sworn in, should worry all Europeans and probably also Americans. Not only so because both Brussels and the Biden administration have openly supported the unprecedented violations of the rule of law that have taken place in Poland, but also because of the justification behind such support.

Things look as if the liberals in Brussels and Washington were treating Poland as an experimental field that will show whether the rise of right-wing “populism” can be stopped with undemocratic means.

The approach used in Poland, which could be used elsewhere in the West – or maybe is already in use to some extent, although not as openly –  is called “transitional justice.” It was originally deployed in countries such as South Africa to dismantle the apartheid regime, for example, or in South American nations after democracy was (re)established. 

This approach consists of justifying violations of the rule of law and democratic principles for a while, in order to establish or bring back the rule of law and democracy where the inherited constitution and laws, if they were to be respected, would protect the former dictators and human-rights violators.

Although the previous conservative governments that ruled Poland in 2015–2023 were neither dictatorial regimes nor human-rights violators, the country is now experiencing a coup driven by this implementation of “transitional justice.”

Such a coup had to be prepared first by eight years spent accusing the conservative government of the United Right coalition led by Law of Justice of breaking the rule of law and democratic as well as “European values.” 

And beware: this is just the kind of discourse we can hear in America about Donald Trump’s presidency and the looming end of democracy if he is re-elected.

We hear it too in several European countries about the threat posed to democracy should right-wing “populist” parties, or supposedly “far-right” parties (often labelled as such simply for promising to stop mass illegal immigration, or, worse still, to limit access to abortion), be elected.

But what can happen when the liberals and the left win elections nowadays? If you want to know, just look at Poland where Law and Justice lost the elections on October 15, 2023, after eight years in power.

In the last few months, Poland has experienced the unlawful takeover by the ruling left-liberal coalition of the public media, the courts, and the regional prosecutors’ offices in the wake of the National Prosecutor’s Office itself. And the liberals’ coup in Poland is now on track to be finalized with the takeover of the Supreme Court, the National Council of the Judiciary, and the Constitutional Tribunal. 

It will be crowned with a purge that has already been announced among more than 2,500 judges, the imprisonment of the key leadership figures of the Law and Justice (PiS) party, and the banning of the latter if it does not first implode under the heavy burden of persecution, investigatory committees in the Sejm, and controlled leaks from the criminal prosecutors’ offices, all without any possibility of defense.

In October 2022, Adam Bodnar, Poland’s former ombudsman and a former left-wing activist who, since December 2023 has been Poland’s justice minister, explained in Gazeta Wyborca that “[M]any expect that after the elections are won by the opposition, it will be possible to return to the path of the rule of law. The future of the Constitutional Tribunal, the system of common courts, the composition of the National Judicial Council, or the status of neo-judges are being discussed. Transitional time options are being considered.”

The term “neo-judges” has been in use in opposition ranks since the 2017 reform of the National Judicial Council, for all judges appointed after that reform, as a way to delegitimize all judicial appointments made after that reform duly voted by Parliament and duly signed into law by President Duda.

A fundamental difference between the way Law and Justice acted in the years 2015–2023 and what the Civic Platform-led coalition has been doing since last December, is that the conservatives had both a majority in the parliament and a president, Andrzej Duda, on their side, so they could pass laws to make the changes they had promised to the voters, like the ones concerning the public media or the ones concerning the judiciary.

Whatever one thought of the previous ruling coalition’s behavior, formally speaking the constitutional order and the law were respected. This is no longer the case under Donald Tusk’s coalition.

Not having a majority of 3/5 in the Sejm that would allow them to overturn the presidential veto, the new governing coalition has decided to use the politics of fait accompli based on resolutions of the Sejm and legal opinions.  

The unlawful, forceful takeover of Poland’s public media last December was conducted based on a simple resolution – with absolutely no legal effect – adopted by the Polish Sejm on December 19, 2023. On that same day, the Minister of Culture and National Heritage, Bartlomiej Sienkiewicz, appointed new supervisory boards in the public media, which in turn appointed new management boards. 

The minister’s actions were undertaken in violation of the law currently in force in Poland, which says that the public media’s supervisory board members are appointed by the Council of the National Media. Strikingly, the forceful takeover of the headquarters of public television was done with the help of private security agencies that had been hired to that effect while the police cordoned the area. 

Justice Minister Adam Bodnar then famously said, in an interview on Radio Zet: “We are not operating in a situation of public media that would actually be run based on the principles of full freedom and information pluralism, but of media that carried out the tasks of a certain party monologue and a monopoly on the provision of information. (…) We have a situation where we are restoring this constitutionality and looking for some legal basis to do so.” 

What’s important, this statement about the ongoing search for “some legal basis” was made by the minister of justice AFTER the forced takeover of the public media by Donald Tusk’s government.

In November 2023, that is, after the electoral victory of his left-liberal coalition against Law and Justice’s United Right Coalition but before his government was sworn in, Donald Tusk had said at a press conference, about his plans for swiftly taking back control over the public media: “Please do not worry about my effectiveness. It will comply with the law as we understand it.”

On December 20, 2023, the Polish Sejm adopted a resolution stating that all the previous Sejm’s acts between March 2018 and May 2022 regarding the selection of the National Council of the Judiciary’s members were adopted in flagrant violation of the Polish Constitution.

In this context, Adam Bodnar’s Ministry of Justice proposed a “test of independence” whose aim is to verify the impartiality and independence of the more than 2,500 judges who were appointed to their positions after the 2017 change in the law on the National Council of the Judiciary. 

This test, framed by the executive and legislative branches of power, is going to interfere with the very core of judicial power – that is, the constitutionally guaranteed status of judges as both irremovable and equal.

Meanwhile, Justice Minister Adam Bodnar has suspended the presidents of the country’s most important appellate courts without following the formal requirement concerning the National Council of the Judiciary’s involvement in the process and acting against the Constitutional Tribunal’s interim orders which forbade him to do so. 

The same Bodnar, acting under the orders of Prime Minister Donald Tusk, has also taken full control of the prosecution system. Under the Law on the Public Prosecutor’s Office, “[t]he National Prosecutor and the other deputies of the Prosecutor General shall be appointed after having obtained the opinion of the President of the Republic of Poland, and dismissed upon his written consent.”

Knowing he could not count on President Andrzej Duda’s support in the liberals’ takeover of the National Prosecutor Office, the justice minister ruled that National Prosecutor Dariusz Barski never in fact effectively took office, as his appointment in 2022 was tainted with a formal defect.

He based this assertion on legal opinions he had himself ordered. Bodnar’s claim led to another formal defect that is real, however: Donald Tusk appointed a new national prosecutor, Dariusz Korneluk, without first soliciting the President’s opinion, as required by law.

As Donald Tusk had told his supporters in November 2022: “Most of the decisions destroying the Polish judiciary will be reversed without waiting for President Duda’s kind signature. Because most of these decisions were decisions against the Polish Constitution, against Polish law, against EU law. At least those decisions regarding judges’ appointments and promotions, as well as the structures they have created, are legally invalid. It will not require some detailed laws to restore the rule of law in Poland.”

Thus, Poland is now in a situation where, as a result of thousands of judges having their status challenged and new prosecutors being unlawfully appointed in the wake of Korneluk’s unlawful appointment as the national prosecutor while the legality of their predecessors’ appointments is being denied by Donald Tusk’s government, hundreds of thousands of court rulings and hundreds of thousands of pending criminal pre-trial proceedings can now be called into question.

On March 6, 2024, the Sejm adopted a resolution declaring that ten different acts of Parliament concerning the Constitutional Tribunal were in violation of the Constitution and the European Convention on Human Rights.

At the same time, three of the past appointments of constitutional judges were likewise declared to be invalid. Many decisions of the Constitutional Tribunal were also said to be null and void.

Since then, the Tusk government has been ignoring all interim orders issued by the Constitutional Tribunal.

Donald Tusk had overtly said this is exactly what he would do, although few believed him then. 

For example, during a meeting with voters in March 2023, the former President of the European Council said: “Believe me, it’s not that complicated to restore legality in various areas of life in those places, on those issues, where, not only in my opinion, PiS introduced changes breaking the law – whether it be the Constitution or EU laws. (…) I know that there will be lots of critics, but, if it depends on me, I will certainly not back down. I will consider decisions that have violated Polish law, the Polish Constitution, and EU law to be, by definition, invalid.”

We are now waiting for the final steps of this coup with the takeover of the Supreme Court, and also the promised takeover of the Central Bank, whose current president, appointed under Law and Justice, is against Poland adopting the euro. 

In July 2022, Donald Tusk had said about its president, Adam Glapiński: “Adam Glapiński is there illegally. He will not be central bank chairman for even a day longer and no act of parliament will be necessary.”

Asked about how this will be done, PO deputy leader Tomasz Siemoniak, who is now Poland’s interior minister, explained that “strong men will show up and lead the [central bank] president out.”

It looks like Tusk’s ruling coalition later opted for Plan B, however, which is to put the central bank president to trial before the Tribunal of State so that he gets automatically suspended for the time of the proceedings.

But then Glapiński raised the alarm at the European Central Bank even before the Tusk government was sworn in by President Duda. ECB President Lagarde’s reaction, which was made public, seems to have put off PM Donald Tusk and Interior Minister Tomasz Szymoniak for the time being.

“Today marks a new chapter for Poland,” Ursula von der Leyen claimed in early May when announcing the European Commission’s decision to withdraw its case against Poland in the Article 7 procedure it had launched in 2017.

I would add to that: “Today marks a final warning for all conservatives in the European Union.”

Indeed, it is Ursula von der Leyen herself who told Donald Tusk in June 2022: “Dear Donald, you embody our values. Now you return to your home country to stand up for them.”

To help him win last October’s election, the European Commission went as far as to block billions of euros in EU funds for years, only to start unblocking them just a few days after Donald Tusk was sworn in. “We see clear determination to correct things and to repair things in the judiciary and prosecution,” said European Commissioner for Values and Transparency Věra Jourová at the beginning of May to justify her intention to ask the Commission to lift its sanction procedure against Poland.

So this is not just about Poland.

Attorney-at-Law Jerzy Kwaśniewski is President of the Board of Ordo Iuris Institute for Legal Culture, and Associate partner at Parchimowicz i Kwaśniewski Spółka Adwokacka law firm.