Returning to the rule of law, that is the goal of Poland's new government. Constitutional lawyer Ewa Łętowska explains why this is so complicated.
Parliament session: From his front row seat, PiS leader Kaczyński takes aim at Prime Minister Donald Tusk Photo: Damian Burzykowski/imago
wochentaz: Mrs Łętowska, the President of Poland, Andrzej Duda, recently expressed his outrage at the “terror of the rule of law”. Do you feel surrounded by “rule of law terrorists”?
Ewa Łętowska: In fact, this statement by our President is causing a stir around the world. But, of course, there is no terror of the rule of law. President Duda was upset that his former Law and Justice (PiS) party colleagues were detained at the presidential palace. He himself was to blame for this. If he had not welcomed the two politicians sentenced to two years in prison for falsification of documents and abuse of power, the police would not have arrested the two criminals in the presidential palace. The fact that criminals were taken away in handcuffs was normal police work.
However, many Polish intellectuals believe that the methods of the new center-left government are reminiscent of those of PiS. Is the new coalition really doing the same as PiS before?
No, the differences are obvious. PiS dismantled democracy to seize and plunder the Polish state. The Citizen Platform (PO) and its coalition partners are doing exactly the opposite. They strive to rebuild democracy and the rule of law to restore citizens' confidence in their state. However, the repair work is difficult when both the president, the Constitutional Court and the still powerful PiS – now as an opposition party – are against the reconstruction of democracy and the rule of law.
As the first female ombudsman of Poland, she created this office to protect civil rights from 1987 to 1992. From 1999 to 2002 she was a judge of the Supreme Administrative Court and from 2002 to 2011 she was a judge of the Constitutional Court of Poland. She is considered the most recognized constitutional lawyer in the country and she is a professor at the Polish Academy of Sciences.
Again about the political style. Was the new Minister of Culture, Bartłomiej Sienkiewicz, simply allowed to replace the leadership of the PiS state media? Was that legally correct?
It certainly wasn't politically elegant. But it was not unconstitutional either. In Poland we are currently facing two phenomena that are also well known in Germany. On the one hand, there is the dual state like that of Ernst Fraenkel. (Politician and lawyer; editor's note) analyzed for the first time using the example of Nazi Germany from 1933 to 1945. And, on the other hand, there is the erroneous label that authoritarian regimes use to disguise their true intentions.
Can you explain this in more detail?
In Poland we are currently faced with an excellent example of a dual state in Fraenkel's sense: our democratic constitution exists unchanged and its articles can still be interpreted and applied democratically. Furthermore, over the past eight years, new and sometimes unconstitutional laws have created a legal practice that contradicts the Constitution. At the same time, PiS took control of the Constitutional Court; not suddenly, but over the years. Furthermore, the officials were politicized. A PiS nomenklatura emerged. Fraenkel called the two coexisting legal systems the state of norms and the state of measures.
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And what does the dual state have to do with public broadcasting or PiS state media?
In Nazi Germany, all media were aligned, including those that were previously private. Luckily, in Poland things did not go that far. But if we want to understand how it got almost here, we have to go into a little more detail. Before PiS came to power, the KRRiT State Radio and Television Council, anchored in the constitution, made all major media decisions. Almost all social and political forces were represented in this council. With one of its first laws in 2016, PiS founded a kind of competing institution: the National Media Council. She transferred all previous powers of KRRiT to this new council. However, in mid-2016, the Constitutional Court, which was still in operation at the time, decided that this was unconstitutional. But neither the parliament, with the absolute majority of PiS votes, nor the PiS-affiliated president cared much.
When the new Tusk government came to power, it found the National Media Council, which had been making decisions on public broadcasting for years, despite the Constitutional Court ruling not allowing it to do so.
Exactly. His personnel decisions were unconstitutional and therefore illegal. The normal thing would have been a law by which the new parliament would have abolished the National Media Council and returned the illegally transferred powers to the KRRiT. But there were two problems: on the one hand, the KRRiT had become politicized and was under the control of PiS, and on the other, the president had already announced his veto of a possible media law. So what can be done to turn the PiS propaganda slingshot back into a public broadcaster when normal legal channels have been blocked? A little imagination was needed.
Fancy?
Yes, because the route should still be legal. The first thing the Tusk government did was to announce loudly and loudly that EU law would apply again in Poland and that Poland would recognize and implement all rulings of the European courts. This alone represents a major step forward for the government, which can now rely on the numerous rulings that have been handed down in Luxembourg and Strasbourg over the last eight years. Furthermore, the Sejm announced in a resolution that it wanted to convert the PiS propaganda slingshot into a public broadcaster, as provided for by the Constitution. It should inform citizens in the most objective way possible and be pluralistic. Only then did the Minister of Culture exercise his right of domicile as the owner of the station and replace the supervisory boards. The entire operation was under the supervision of the commercial courts.
So that was completely legal?
It was unusual, but not unconstitutional. In a functional democracy, this would have been done with one or more laws. But that is not possible at the moment. However, the new coalition should push a media law through parliament. Then we will see if the President vetoes it, as he has announced.
Is there a temptation for the Tusk government to exploit the (illegal) opportunities created by PiS, this time in the service of the victorious coalition?
I hope it doesn't come to that. However, the small steps method makes it more difficult to rebuild the rule of law. Especially since the president is not involved in it either. This slows down the process of legislative reform towards normalization of the situation. But breaking the law cannot create legitimacy.
Reforms must be carried out at many levels simultaneously. How does the government want to avoid legal chaos?
Of course, there is a risk of such chaos occurring. But it's not new. We have had chaos here since the start of the populist PiS government in 2015. Especially for Western Europeans it is important to remember that in Poland there was never a legal cult like in France, Great Britain or Germany. That has to do with history. In the 19th century, the Russians, Prussians and Austrians divided Poland and established their own laws in the divided areas. This right was alien to the Poles and they sabotaged it at every opportunity. This situation lasted 123 years, until the Treaty of Versailles. Poland was independent for only 20 years until it was divided again in 1939, this time by Hitler and Stalin. The occupation law was once again foreign. Most Poles also felt that the post-war communist law was “not Polish.” Poland's path to appreciation for law, the rule of law and rule of law principles has been difficult.
“PiS dismantled democracy to take possession of the Polish State”
Is it to be feared that Polish citizens will soon lose patience with the new coalition because it does not “deliver” immediately?
I hope it doesn't come to that. In fact, many Poles find the current political circus quite entertaining. The Sejm Internet channel continues to have very high ratings and some meetings are even broadcast in cinemas. The cry “Bring popcorn!” It has already become a well-known word. However, it remains to be seen whether politics consumed as infotainment will generate strong support from civil society.
On the other hand, PiS politicians now defend “democracy and the rule of law”, want to complain to the EU about the Tusk government and invoke freedom of expression. Can Poles still see through this cacophony?
This label fraud is, of course, a big challenge. What does Donald Tusk mean when he talks about “free media”? What does Jarosław Kaczyński mean when he defends “free media”? It's the same thing? In the case of the media, probably all Poles have understood: the propagandists of the PiS party are definitely not free media. With courts it is more difficult: how can someone who is not a lawyer understand when a court is a “real court” and when it is called that but in reality it is only the façade of an independent court? Or even with the judges. We are facing a very big problem. Because in the last eight years, about a quarter of all judges – and we have about 11,000 – were promoted in a more than dubious way.
Who explains these distortions in the State to citizens?
This is a challenge not only for the government, but also for judges and prosecutors, who must rebuild the battered legitimacy of the courts. This task is even greater and more difficult than the transformation of the years 1988 to 1990.
Will the Tusk government succeed in restoring liberal democracy in Poland?
I don't know, but I really hope so. However, this will not be a democracy like before 2015. We are not going backwards, but moving forward, even if slowly. Democracy will be different from what we imagine today. But if nothing extraordinary happens in these ultimately turbulent times, Poland will once again be a pluralistic democracy in a few years. Of course, the national-populist PiS will also have a place in it, but so will the left, the Christian Democrats and the liberals.