Exclusive: Donald Tusk is creating legal and judicial anarchy in Poland, warns Confederation co-leader and Sejm deputy speaker Krzysztof Bosak

Polish opposition MP Krzysztof Bosak is the deputy speaker of the Sejm and one of the leaders of the Confederation party.
By Olivier Bault
28 Min Read

Shortly after the exposé of new Prime Minister Donald Tusk last Dec. 12, you said from the Sejm rostrum, speaking on behalf of the Confederation, that what Donald Tusk had just said gave reason to believe that the new government could quickly fall into the same ruts as the previous one. We now hear that his predecessor, Mateusz Morawiecki, has issued an appeal to foreign countries to react to violations of the rule of law in Poland. The Law and Justice Party organized a big demonstration in defense of freedom, the rule of law, and media pluralism on Jan. 11. So, we now have the opposition fighting in defense of democracy and the rule of law through street protests and calls for help from abroad, just as when Law and Justice was governing Poland. Only that the roles have been reversed.

Do you think, a month after the left-liberal coalition government headed by Prime Minister Tusk was sworn in, that this government has already fallen into the same ruts as the previous one? Or maybe even into deeper ruts?

Unfortunately, we can say that. Of course, there are some programmatic differences between the Law and Justice (PiS) party and the center-left coalition, but there are also many similarities.

Among the parallels that have emerged especially over the past month is precisely this rather high degree of arrogance — not to say brutality — of the new government, which has been causing bitterness and criticism in the opposition.

There is bitterness in the ousted PiS party, but certainly a great deal of criticism among us, the Confederation, as well. We consider some of the new government’s actions to be simply unlawful.

There is no change at all in the style of government, contrary to what was promised before the elections. For example, there is no transparency in the preparation of draft laws, no dialogue, no consultation of any kind, and no search for some kind of national reconciliation, which Donald Tusk spoke about in his exposé.

I, in my commentary on Prime Minister Tusk’s exposé, noted that he treated us to a large portion of platitudes and a small number of concrete announcements. After a month, it’s clear that I was, unfortunately, completely right: The new government’s strategy is to act by force and surprise, and a positive program is unfortunately not in sight.

That is, unless we are to consider it a postiive program to take over more state institutions with or without a legal basis and efforts to make sure all people with any connection to PiS can no longer have an influence.

So, if we previously criticized PiS for its partisanship and at times sectarian approach to the state, Donald Tusk’s Civic Platform (PO) now deserves the same criticism.

There was a lot of talk over the past eight years about the alleged threats against democracy and the rule of law in Poland. As one of the leaders of a political camp that has always been in the opposition, how do you assess this issue? Donald Tusk had governed before, and there also seems to have been issues with the rule of law then, as you reminded him in your Dec. 12 speech in the Sejm. Now, Donald Tusk seems to be going even further and setting new standards in terms of rule-of-law violations. Which side do you think is worse in this regard? Or are the two simply worthy of each other?

First of all, let me start by saying that I believe that we do not have a problem with democracy in Poland. Democracy is a term that each political camp would like to appropriate for itself, portraying rivals as undemocratic. I believe that this is pure political rhetoric.

In Poland, a majority of voters elect a majority of the parliament and then the government is formed. Of course, we can have a whole range of objections to the way election campaigns are conducted, but basically the mechanism for appointing and changing those who govern us as a result of the will of the people works properly in our country.

The rhetoric of democracy being destroyed only hides dissatisfaction with one political force or the other pursuing its agenda. As a rule, rhetoric about the crisis of democracy camouflages a certain political agenda.

Some people equate specific details of the system with democracy. I, for one, believe that the essence of democracy is simply the appointment of those in power by the majority and the functioning of this mechanism that allows to change those in power.

When it comes to the rule of law, however, there are problems in many countries, including Poland. In my opinion, certain problems with the rule of law have been present in Poland regardless of which party was in power. These include, in particular, problems with protracted court proceedings, various types of carelessness or dishonesty in the courts, and low-quality judicial decisions.

In recent years, when PiS was in power, new problems were added to this list of older problems, which have not been resolved either, to say the least.

The new issues are related to the fact that PiS tried to reform the courts. These reforms were paralyzed by the resistance of the judicial establishment, the serious mistakes made by the PiS government itself, and the repeated changing of the reform concept with dozens of changes in the laws organizing the judiciary, as well as the transfer of the conflict between the judicial establishment and the PiS government to the international level, which led to interference from the European Union and also the European Court of Human Rights in the Polish court system.

The interference consisted of favoring the judicial establishment and equating with the rule of law the strong position of the old judicial establishment, whose habits have their roots in the communist period.

We in the Confederation, which is a right-wing, libertarian, national, and conservative force, profoundly disagree with equating the rule of law with the domination in Poland of the legal and judicial establishment formed during the communist period and transformed during the process of democratization.

This is a critical diagnosis that unites us with PiS.

What separates us from PiS is the reforms that PiS tried to make. Not only did they not rectify the situation in any way, but they significantly worsened it, as the reforms consisted of the partisan takeover of a number of judicial institutions, such as the National Council of the Judiciary and the Constitutional Tribunal.

This led to an extremely strong conflict within the judiciary that gave rise to a partial judicial-legal dualism, whereby the institutions simply do not recognize each other’s position and jurisprudence.

This results in a state of what can unfortunately be called partial anarchy.

So, in addition to the problems with the proper operation of the courts, now there are problems with the dualism of the legal system, in which courts or state institutions do not respect each other’s decisions, rulings, or judgments.

This is a rather serious problem that is coming to light with full force right now because the new government, the PO-led coalition government, is basically acting in such a way that it ignores the state, legal, and judicial institutions previously established by the former PiS parliamentary majority.

By doing so, the new parliamentary majority and its government are generating a kind of juridical dualism.

It was this dualism that led to the arrest Tuesday night of two former PiS ministers. They were arrested based on rulings by one court that contradicted those of other courts, including the Constitutional Tribunal, and deliberately ignored President Andrzej Duda’s pardon of the two men — now opposition deputies — in 2015. It appears that each of the two big feuding camps now has its own judges and does not recognize the rulings of judges who they consider to belong to the other camp. How can this continuous escalation be stopped and how can we get out of this situation?

First of all, the situation is in no way symmetrical between the center-left and PiS.

PiS, as a result of its eight years of very intensive reforms — changing the law dozens of times, as I said — has managed not to build support in the courts, but only to take over two institutions that stand at the top of the judicial hierarchy, namely the Constitutional Tribunal and the National Council of the Judiciary.

However, the National Council of the Judiciary in its current form is not recognized as legitimate by all. Some consider that it no longer fully complies with the constitution. The Constitutional Tribunal, where some of the judges are former PiS deputies, which is highly controversial, is also being questioned.

These are institutions that stand at the very top and are not in the business of judging ordinary cases.

What’s more, the Constitutional Tribunal, which PiS has managed to take control of, is paralyzed by very strong internal conflicts, including among those new judges who were appointed by PiS.

It can be said that the picture of these reforms is very sad. They turned out to be completely ill-conceived and they have had bad effects.

As for the specific case of the detention of two Law and Justice MPs, who are former ministers that used to be in charge of the secret service and police, this shows not one, but many problems, both with the judiciary and with PiS itself.

Their case was about their abuse of power, not as politicians, but as people who were heads of the special services. At the time, they were neither MPs nor ministers.

The case is from many years ago, when they were in charge of the special services and allegedly abused their powers, cracking down on corruption and chasing politicians. I personally believe that they broke the law at the time, and the proceedings conducted over the past several years in the courts against them were justified, as were the convictions.

The crux of the dispute, however, is not whether they broke the law and were rightly or wrongly convicted.

At issue in this dispute is the fact that they were pardoned for these acts by President Andrzej Duda, a president associated with their political camp. The dispute over whether they could be later convicted at all or their case should end, and whether they should now serve their prison sentences, stems from the dispute over whether the president had the right to pardon them.

It must be said that before President Duda pardoned them, there had been no case of someone being pardoned who had not yet been definitively convicted. This was the first such case and this is why it was questioned. However, the president acted based on constitutional provisions and, in my opinion, he had the right to act in this way.

After he issued his pardon, it was first overturned by the Supreme Court, but then rulings favorable to the president were issued on this matter by the Constitutional Tribunal, at a time when it was already dominated by PiS appointees.

In short, we have politicians who broke the law, we have a legally controversial presidential pardon, and then we have conflicting rulings by the Supreme Court and the Constitutional Tribunal on the matter.

After Law and Justice’s election defeat, judges in one court, the Warsaw District Court, felt emboldened and brought the case to an end by sentencing those two former heads of intelligence services linked to PiS to prison. Another court, acting on the basis of regulations introduced by the Law and Justice party itself when it was in power, then ordered the swift execution of the punishment.

In my opinion, this shows not only a crack in the Polish legal system but also the failure of PiS politicians themselves to secure their legal position when they were in power and could enact clear and unambiguous laws. The reason they didn’t do this in my opinion is because they didn’t anticipate losing power.

I do know, however from a comment you posted on X, that you are quite critical of the fact that these two politicians were arrested on the grounds of the Presidential Palace.

I make a distinction between two things. My position is nuanced due to the fact that I do not belong to the political camp of those two convicted deputies and I do not believe that they deserve to be defended regardless of the circumstances, but neither do I belong to the center-left camp, which seems happy to imprison its political opponents.

I believe that we should stand on the ground of neutrality and the rule of law in such matters.

I believe that if politicians have broken the law, they, like any citizen, should be tried and punished for it. So I think the courts had the right to judge them. If they have been given a prison sentence, they should go to jail. On the other hand, however, I believe that, according to the constitution, the president had the right to pardon them and the president’s pardon should be respected. It is simply a mistake for the court not to respect the president’s pardon order.

I also believe that if a court had nonetheless decided to execute the prison sentence and the police were to detain them, it was probably the worst possible idea to detain them at the Presidential Palace when they were President Duda’s guests.

It looks like a provocation or a kind of political revenge for the president sticking up for them and questioning whether they should go to jail.

The president is arguing with the government over whether his pardon decision is valid. The government, on the other hand, is showing that it will not give him a chance to protect his political colleagues and that whether they stay with him inside or outside the Presidential Palace, they will go to jail.

The decision to arrest them on the grounds of the Presidential Palace, unfortunately, raises the level of political conflict, making the conflict between Prime Minister Tusk and President Duda no longer just a programmatic and political conflict, but also a personal one.

This was all done in a very bad way, as it took place when the president was absent from his office as a result of some intrigue. The intrigue was that the minister of the Civic Platform government who controls the police and secret service gave special orders to the Presidential Palace security, forcing them to be disloyal to the president whom they are supposed to protect.

I believe this ruins trust in state services, trust between politicians and trust between state authorities. I also believe that this damages the image of Poland, because a situation like this, where former ministers are detained in the Presidential Palace of a president linked to the opposition, is more reminiscent of the standards of some non-European countries with coups or military takeovers than the standards of a European country ruled by law.

Donald Tusk promised Poles a return to the rule of law and governance based on a lower level of political conflict, yet so far he has been no less brutal in his actions than Jarosław Kaczyński. The level of controversy over his actions can actually be said to be higher in the first month of Tusk’s rule than was the case with the actions of the PiS government.

It can be said that the manner in which the Donald Tusk government swiftly took over the public media was also more akin to Eastern standards than European ones. The lawlessness of this takeover was confirmed last week by the registry court, which refused to enter the public media’s new board members appointed by the culture minister in the national court register.

Indeed, the takeover of government-dependent media occurred without the passage of a law that would have allowed for such action. In our opinion, regardless of how the courts will now rule, there has been a clear violation of the law.

Judges in the courts are, of course, also frightened by the current situation. We have information that some judges are going on sick leave so as not to have to judge the actions of the new government, which first seized the editorial offices of the public media with the help of private security agencies and the police, and only later stated that it would seek a legal basis for this.

Admittedly, last week’s court order refusing to register the new public media authorities does not have a significant, conclusive role in the entire conflict. Instead, it shows that at least in this case the court decided to rule in a way that is unfavorable to the government, which I am glad about. It shows some courage and judicial independence.

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And how do you assess the attitude of Brussels? It is known that the Confederation, as a sovereignist party, is not in favor of the European Union authorities meddling in Poland’s internal affairs. What is striking, however, is the difference in Brussels’ approach to these issues. When Law and Justice took over the public media in 2016 under a law they had duly passed in parliament, there was a great uproar and finger-pointing at Poland. Today, when the same media have been forcefully taken over by the left-liberal government in clear violation of the law in force in Poland, there is complete silence and even tacit support from the European Commission.

This question should be answered in a slightly broader context. Foreign actors in general, namely, first of all, Brussels and the EU institutions, secondly, Washington and the U.S. Department of State, which also spoke out on the rule of law in Poland, thirdly, the embassies of other European countries, which allowed themselves to make various statements to the Polish authorities, lecturing them on democratic values and tolerance alongside other so-called European values, as well as, fourthly, the international media.

All these actors now avoid any evaluation of the new government’s actions.

It is obvious to me that this is due to the double standards of the European Union, Western countries, and the international media, where a government with a more conservative, right-wing, patriotic, or sovereignist message will always be stigmatized and met with very harsh criticism, no matter what it does. On the other hand, if a centrist government does similar things or even harsher things, everyone just keeps silent and refrains from making comments.

I am sure that those who observe the situation in Poland see what is happening and have their assessment of the situation, but for political reasons, they do not express it.

It is a well-known fact that Donald Tusk is a friend of the EU elite. He is perceived as the Eurocrats’ man in Poland. The same can be said of the left-wing party present in his coalition government, which is the only party in Poland that very strongly supports Eurofederalist tendencies. Similarly, the coalition party Poland 2050 is a progressive liberal party that belongs to the same group in the European Parliament as Belgian MEP Guy Verhofstadt, who was so vocal when lecturing Poland under PiS. Well, and the last of the coalition parties, the PSL agrarian party, belongs to the European People’s Party just as Donald Tusk’s Civic Platform.

So they have a kind of protective umbrella from all the politically correct forces in the European Union, as well as from the liberal forces and those associated with the Democratic camp in the United States. Hence the lack of any critical assessment of the recent government actions in Poland.

How then to solve this problem among Poles themselves? What does the Confederation propose?

The conflict over the rule of law and the judiciary in Poland has become so convoluted that it would take many hours to explain all its details, and from this picture emerges a situation from which there is no good way out.

We in the Confederation believe that these institutions can neither be repaired nor substantially reformed under the current law. Therefore, we postulate the idea of a constitutional reset of these highest judicial bodies in Poland, such as the National Judicial Council, the Supreme Court, and the Constitutional Tribunal, through a special amendment to the Constitution.

We believe that such an amendment to the Constitution should be adopted in an atmosphere of consensus among the main political forces, and the judges sitting in these major bodies should all be changed.

How to select their new members is a matter for discussion. It could be a draw, a competition process, a vote, or an appointment process. The point is that there should be no continuation of these old judicial arrangements, which date back to the communist era, nor should the party political arrangements be reproduced in a straightforward way in the courts.

There are plenty of good young and middle-aged lawyers in Poland. Regardless of their political views, they should be allowed to hold leadership positions in the courts and gradually raise the level of the judiciary.

On the other hand, nothing good comes from politically directing these bodies, as PiS attempted to do, because it is met with tremendous resistance.

It is not possible to reform these bodies by putting judges on retirement because the privileges of the old judicial establishment, often belonging to the Left, are upheld by the European Union, which equates these privileges with the rule of law and the independence of the courts.

So, in short, only such a constitutional reset could help, and we propose this knowing fully well that the main political forces, first and foremost Law and Justice and the Civic Platform, are by no means interested in this type of change, because it would go against their interests.

Krzysztof Bosak is the leader of the National Movement, a Christian nationalist party, which is part of the Confederation Liberty and Independence alliance, also called Confederation (Konfederacja). The Confederation is made up of Christian nationalists and conservative libertarians and has 18 deputies in the Sejm.

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