WARSAW, Poland - Reversing Poland’s illiberal course was a central promise of Prime Minister Donald Tusk’s campaign, which helped return him to power in last year’s election. Making good on that, however, may be easier said than done — partly because of the checks and balances Tusk wants to restore.
Andrzej Duda, the holdover president from the years ruled by the Law and Justice party (PiS), has considerable power to stand in Tusk’s way. He is on the last lap of his two terms. When he steps down in the middle of next year, it leaves an opening up for grabs.
That makes the months until then a crucial period for Tusk and his broad coalition. They need to convince voters that they are worthy of filling the presidency, as well.
Tusk has not done himself any favours recently. Earlier this month, he signed off on a Duda-approved judicial nomination who was under scrutiny as a “neo-judge” — a term for PiS-era appointments.
When Tusk tried to revoke his signature on the nomination, it gave critics the chance to accuse him of undermining the rule of law. Tusk’s justice minister has backed his boss, saying the conduct was appropriate.
Check and balance
When the two met earlier this year, Tusk told Duda that he wanted the “terror of the rule of law” to reign supreme. It was a bold way of saying he wanted to restore normal democratic processes that the PiS years eroded.
That cuts both ways: Duda may be a staunch PiS ally, but as president he is also a check on governmental power and hasn't hesitated to perform that role.
Perhaps most notably, he blocked a bill that would have worked to undo PiS judicial reforms, which imposed political control over the appointment body that determines who sits on the bench. The move cost Poland billions of euros in European Union funds, which were frozen in response to undermining democratic norms and violating European Union principles.
In an effort to kill the legislation, Duda turned to the Constitutional Tribunal — a top court packed with PiS loyalists. Tusk’s coalition chose to ignore the court, giving Duda the opportunity to frame Tusk as the one undermining rule of law.
"Please ask the prime minister and his ministers how they feel about breaking the law, after they vowed at the presidential palace that they would obey it," Małgorzata Paprocka, Duda's chief of staff, said at the time.
The optics of undermining a court, even a biased one, are a kind of legal booby trap that PiS left behind for its successors to fall into. Yet Tusk’s government faces little choice but to fight fire with fire.
“The Tusk government has indeed, at times, resorted to creative lawyering and bending the letter of the law to achieve its aims,” said Jakub Jaraczewski, a research coordinator for the Berlin-based NGO, Democracy Reporting International, told The Parliament. “Restoring the rule of law using legal tools meant for a normal transition of power is almost impossible.”
The European Commission ended its Article 7 proceeding, which it uses against members potentially violating the rule of law, against Poland a few months ago. Despite the cautious optimism, a Commission spokesperson acknowledged the “difficulties that might arise in the course of the legislative process. We can also not expect Poland to solve the remaining issues overnight.”
A race to fill the presidency
Many of Tusk's plans to restore rule of law might have to wait until Duda is out of the way next year. Yet if Tusk hopes to have a shot at having an ally taking Duda's place, he will need to keep an unruly coalition together. That is a long time in the political life of four parties ranging from Tusk's centre-right liberals to Catholic conservatives to the Left.
Tusk’s Civic Coalition party is expected to field Warsaw mayor Rafał Trzaskowski as its presidential candidate. His victory would make Tusk’s campaign promises easier to deliver on.
That is hardly guaranteed. A September poll by state pollster CBOS suggested that 40% of voters now oppose the Tusk government, up from 36% in July. Just 32% of respondents were still supportive.
Meanwhile, PiS made gains in municipal elections earlier this year, which could set the stage for a larger comeback. It remains unclear who the party would put forward as its presidential candidate, but they could use the same formula that made Duda popular in 2015: a fresh face without a track record to attack.
True to its national-conservative brand, PiS has hinted that it might unveil that candidate on 11 November — Poland's Independence Day.