Poland allowed to violate rule of law if ruled by pro-EU liberals

Donald Tusk has overtly claimed in recent months that in case of electoral victory on October 15, as prime minister of Poland he will disregard all laws passed by the Polish parliament since 2015 which he finds to have been adopted in violation of the Polish constitution and/or EU law. For this reason, revoking unwanted laws will not require any debates or votes in the newly elected parliament.

Olivier Bault

 

Even if they win the elections on October 15 and can form a governing coalition under the leadership of Donald Tusk, a former Polish prime minister and former president of the European Council, the liberals and the left in Poland will likely not have the necessary three-fifths majority in parliament to overturn possible presidential vetoes. President Andrzej Duda, a Law and Justice (PiS) politician, was reelected in 2020 and will, God willing, remain in place until 2025.

But this is not really a problem in the eyes of Tusk, who seems to believe that if he heads the Polish government, Brussels will no longer bother so much about respect for the rule of law in that country.

 

See also on that subject “The EU’s rule of law trap”:

 

Good for him! He has overtly claimed in recent months that, as prime minister, he will disregard all laws passed by the Polish parliament since 2015 which he finds to have been adopted in violation of the Polish constitution and/or EU law. For this reason, according to Tusk, revoking unwanted laws will not require any debates or votes in the newly elected parliament.

As European Commission President Ursula von der Leyen said when Tusk returned to Poland: “Dear Donald, you embody our values. Now you return to your home country to stand up for them.”

Great meeting with @donaldtusk at the @EPP congress in Rotterdam.

Dear Donald, you embody our values.

Now you return to your home country to stand up for them.

Many thanks for your tireless work as EPP President.#EPPRotterdam pic.twitter.com/A8IDnXxpIy

— Ursula von der Leyen (@vonderleyen) June 1, 2022

The German president of the European Commission then expressed her wish to see her “dear Donald” soon get back his former post of prime minister of Poland.

About those values, concerning respect for democracy and the rule of law, on which EU officials and Von der Leyen like to lecture member states and Poland and Hungary in particular, here is what Donald Tusk said during a meeting with voters in March this year:

“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 understand it will be a completely arbitrary one-man decision, taken by Prime Minister Donald Tusk, and that no legislation will have to go through parliament to invalidate the laws enacted by the two previous parliaments (elected, respectively, in 2015 and 2019).

In the same way, Donald Tusk has the firm intention of canceling the judicial reforms approved by the Polish parliament in 2017 and later “without having to wait for President Duda to kindly sign” the new majority’s bills into law, that is, without acting in a lawful and democratic manner through the usual legislative process. And he will, in passing, dismiss judges appointed when he was no longer prime minister of Poland. At least, that is what he has been claiming he would do.

Here, for example, is what Tusk said during a meeting with voters in November 2022:

“For me, the most important thing is to work closely with Polish judges and courts, as well as with EU courts. 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.”

In the same spirit, Donald Tusk, if he becomes Poland’s next prime minister, intends to “find tools” to make “harsh, unequivocal decisions concerning the Constitutional Tribunal, the judges who have been dismissed [through disciplinary procedures], the false chambers [of the Supreme Court] and the neo-Judicial Council.”

“Neo,” by the way, is the prefix used by the liberal left’s opposition leaders and media outlets whenever they talk of the country’s national judicial council, the KRS (Krajowa Rada Sądownictwa), after the 2017 reform passed by parliament. Similarly, to call into question the legitimacy of all new judges, they talk about “neo-judges” when referring to the judges appointed by President Duda among candidates proposed by this “neo-KRS.”

So, when reforming the judiciary that has been reformed by the current conservative majority, Tusk will do what is necessary so that his reforms “do not get bogged down in endless debates and so that most of the decisions [his government] have to make do not depend on the good or bad will of President Duda.”

The reformed KRS was ruled in conformity with the Polish constitution by the Polish Constitutional Tribunal in March 2019, but, with active support from the European Commission and other EU institutions, Tusk’s Civic Platform has maintained that this tribunal is unlawful and any of its rulings enacted since 2016 can simply be ignored.

Already prior to the 2019 elections, in which the PiS-led coalition renewed its absolute majority in the Sejm, Tusk’s PO promised to simply throw out of the Constitutional Tribunal three out of fifteen sitting judges. Their appointment was disputed amid a row originally caused by the PO’s attempt to appoint judges in advance in the face of their looming electoral defeat in 2015. Polish constitutional judges are elected by the Sejm, with a simple majority vote, for a non-renewable period of nine years.

Here, for example, is what MP Michał Szczerba, an important figure in Tusk’s Civic Platform, said in 2018 about his country’s Constitutional Tribunal:

“We will remove people from it who are not judges. I’m talking about the three fake judges who shouldn’t be in it, and they will certainly have to leave.”

In the same interview, Szczerba further said about the Judicial Council: “Those people who, at [Justice Minister] Ziobro’s instigation, entered the current National Judicial Council must be aware that this is a short-lived adventure and they will be removed.” He also promised that all the judges appointed to the Supreme Court after the 2017 judicial reforms would be dismissed.

But PiS then won the 2019 parliamentary election, renewing its absolute majority in the Sejm.

We can now see that Donald Tusk’s Civic Platform, in the run-up to the parliamentary elections due to take place on October 15, has not renounced its plans to dictatorially remove the judges who were appointed while the conservatives were in government. Indeed, Tusk’s party, which is a member of the center-right European People’s Party, to which the European Commission president also belongs, makes no secret of its intent to proceed by arbitrary decisions of the executive branch, without going through a lawful legislative process, which President Duda might block with his veto power enshrined in the Polish Constitution.

 Whatever one thinks of the Polish United Right’s judicial reforms, they were at least lawfully enacted by parliament.

In July 2022, in the city of Radom, Donald Tusk also announced that when he becomes prime minister he will have the Polish central bank’s chairman removed without going through the normal procedure, just because he and his friends consider that Adam Glapiński’s appointment was flawed from the start and that it was a political appointment. Asked by a journalist how concretely Tusk intended to proceed to get Glapiński out of the central bank, the Civic Platform’s vice-chair and former defense minister Tomasz Siemoniak explained to a bewildered journalist that some “strong men will convince him.”

On July 8, 2022, Glapiński held a press conference, during which he reacted to the open threats expressed by the two PO leaders: “Siemoniak was kind enough to say that ‘strong people’ will come and get the chairman out (…) I would find it really frightening if Poland entered such a period in its history that strong people would remove officials they don’t like from government institutions. I hope this will not happen.”

It is not the first time Donald Tusk’s Civic Platform has shown its contempt for the principle of an independent central bank. So they know by experience that, being pro-immigration and pro-LGBT Eurofederalists like the Eurocrats in Brussels, they can enjoy full impunity in that regard, in contrast to the current conservative majority.

In the summer of 2014, a scandal broke involving audio recordings made without the knowledge of those concerned, in Polish restaurants frequented by members of Donald Tusk’s government. When the scandal broke, Tusk had left his function as prime minister of Poland for that of president of the European Council, which carries less responsibility and is much better paid.

One of these recordings concerned a conversation held a year earlier between interior minister Bartłomiej Sienkiewicz and the then chairman of Poland’s central bank, Marek Belka. The minister, who in the conversation appeared to be speaking on behalf of Prime Minister Donald Tusk, asked the central bank chairman to come to the rescue of the state budget by turning on the money printing press at just the right moment before the next elections, in order to avoid a victory for Jarosław Kaczyński’s conservative Law and Justice party. Sienkiewiecz argued that such a PiS victory would scare off foreign investors and mean a catastrophe for the country’s economy.

Belka agreed in principle but mentioned the obstacle posed by “this f….g Monetary Policy Council” (sic). The former communist dignitary Belka said he would deal with this obstacle provided he had the prime minister himself as his interlocutor and not finance minister Jacek Rostowski. Another condition set by the central bank’s chairman was that Donald Tusk should replace his finance minister, although Belka did not name the replacement in this conversation. Rostowski was dismissed by Donald Tusk two months later. The third condition was that the Polish parliament should pass a law increasing the powers of the chairman of the central bank at the expense of the Monetary Policy Council. The bill in question was being debated in parliament when the compromising tape was leaked.

Tusk’s friends lost power in 2015, largely because of the compromising recordings (this and others), but Marek Belka remained chairman of the Polish Central Bank until his term expired in 2016, even though he had evidently acted in violation of the Polish law and constitution. It seems that the country’s new conservative leaders after the elections held in the fall of 2015 were more concerned with the law and legal procedures than the Civic Platform’s liberals are today.

It is worth noting in passing that, at the time, the EU institutions did not react to the tape revealing the de facto lack of independence of Poland’s central bank, even though they had earlier put pressure on Hungary when it tried to re-establish, through laws duly passed by parliament, a degree of democratic control over its own central bank.

Similarly, Brussels has been attacking the Morawiecki government and its parliamentary majority for years, going as far as to block the funds promised to Poland as part of the Next Generation EU post-Covid resilience and recovery plan, even though the judicial reforms enforced by PiS have been based on laws duly enacted by the Polish parliament and signed by the country’s president, in accordance with the Polish constitution. The same elites sitting in Brussels have failed to react to the Civic Platform’s and former European Council president’s warnings that they intend to ignore the most basic principles of the rule of law and judicial independence once in power.

Let us hope, for the sake of democracy and civil liberties in Poland, that, if Donald Tusk and his liberal and leftist friends are to govern this country of 38 million inhabitants after the October 15 elections, these are just empty threats.

But are they?

On September 9, in the presence of Donald Tusk, who promised to make PiS leaders accountable in case of a victory, and while presenting the Civic Platform’s “100 concrete measures for the first 100 days”, the party’s leaders and MPs issued threats of prison sentences for members of the Morawiecki government, PiS figures, and civil servants alike, including PiS leader Jarosław Kaczyński and incumbent President Andrzej Duda.

And we also again heard, this time from the lips of PO MP Kamila Gasiuk-Pihowicz, who happens to be a lawyer, that three of the Constitutional Tribunal’s fifteen sitting judges will be dismissed right away by the new liberal-leftist majority. Dark threats of consequences were then also addressed to the police chief as well as to the central bank’s chairman again, the chairman of the media authority, and several ministers.

 

See also, on the subject of Poland’s controversial judicial reforms and its tug-of-war with Brussels:

• Conflict of jurisdiction between Brussels and the EU’s East getting nasty
• Eurocrats’ hypocrisy toward Poland and Hungary unveiled by report on appointment of judges in EU countries