The bandit rule of the Law and Justice Party (PiS) must be firmly disobeyed. We
must face them head-on and be ready for the consequences, whatever they may be.
Bartosz Kramek is the Chairman of the Board of the Open Dialogue Foundation.
The law on the commission to investigate Russian influences, known as ‘lex Tusk’,
is a very conspicuous reflection of the ruling party’s view on both the state and the
law. The progressive demolition of the rule of law has led us to legal nihilism in an
advanced form, which is typical for the contemporary Russia. Nihilism is quite
common there, both at the level of people’s mentality and in social behaviour
(demonstrated by all-prevalent demoralisation) as well as in Putin’s model of
government. When you come right down to it, Russians despise the law and worship
their rulers in a meek and subservient way, quite regardless of the degree of their
idiocy and corruption. The Kremlin is contented to respond to this craving.
Soviet Sources of PiS’s Inspirations
The modus operandi of eliminating electoral competition has a long-standing
tradition in the post-Soviet territories and manifests the rulers’ fear of their rivals. For
this very reason Viktor Yanukovych imprisoned Yulia Tymoshenko, Putin attempted
to poison Navalny and then sent him to a gulag, and Russian adminresurs (i.e. the
executive power apparatus deployed in the interest of the ruling party) attempt with
all their might to make life difficult for independent candidates, even in local
elections. In Kazakhstan, opposition parties are denied registration (rubber-stamp
parties are set up instead) and even unregistered parties are disallowed (sic!), while
in Moldova, opponents were blackmailed with kompromats, i.e. compromising
material with spicy scenes from private life. Such are the practices failing to meet
democratic standards that have shaped the electoral processes in these countries.
In the recent week PiS overcame scruples again by reaching for a deterrent of this
magnitude (under this law, the commission to investigate Russian influences has the
power to disqualify individuals from holding public office for 10 years).
Opposing ‘Lex Tusk’ in Defence of Principles, not Tusk Himself
Mikołaj Janeczek, one of my pro-democracy activist colleagues recently remarked
that ‘first we turned the electoral programme into a defence of democracy, now we
are changing the defence of democracy into Tusk’s defence’. He has quite aptly
caught the shallowness of democratic opposition in Poland, which usually boils
down to being ‘anti-PiS’, with strongly leader-commander attribute of the major
opposition parties.
At the same time, this quality of being ‘anti-PiS’ (although, I must agree,
insufficiently so), remains the lowest common denominator of democratic unity and
the basic moral and aesthetic imperative. One can debate whether it does have any
activating potential (the strength of which, however, is manifested by the vitality of
the eight-star anti-PiS slogan 1 ), however, the importance of removing from power the
party that claims to have brought ‘good change’ cannot be overestimated.
And just as Tusk might not be an idol for many, yet the pathologies epitomised by
the law named after him (‘lex Tusk’) call for the most steadfast protest. Somewhat
on a high note, it suffices to say that the demolition of the rule of law is once again
calling the defenders of the constitution to the barricades, while the spectre of actual
physical barricades in the near future looms ever more ominously. This fight is not in
the defence of Tusk, but in the name of principle.
An unjust law is no law at all
‘Lex Tusk’ is not a law which is binding, just as a law imposing upon LGBT+ people
the obligation to wear a pink triangle badge or opposition supporters to wear red-star
armbands would not have been. Just as a horse cannot become a senator; likewise
Andrzej Duda does not have the power to pardon the not-yet-convicted comrade
Kamiński and comrade Wąsik or to validate the extra-procedural, unlawful election of
double judges to the Constitutional Tribunal. An ordinance issued by a minister is not
an instrument that can suspend the Aliens Act, the Constitution, EU law and
international conventions so as to legitimise the so-called ‘pushbacks’ at the border
with Belarus and the ‘exclusion’ of those emigrants’ right to an asylum.
An unconstitutional law is not a law, and the primacy of European and international
law over statutory laws is enshrined in the Constitution. The hierarchy of sources of
law cannot be made to stand on its head by arbitrary decisions of political power,
and the ‘culinary Tribunal’ of Julia Przyłębska and the ‘notary’ Duda cannot serve as
the tools for twisted post factum legitimization of violations of the fundamental
underlying principles of the state and standards of legislation.
Statutes that are manifestly unjust, hurtful, immoral, and an affront to human dignity
are not law and should not be applied. This was pointed out by a German legal
theorist Gustav Radbruch after having experienced the phenomenon of law
instrumentalization by the Nazis. This thought is embodied in the Latin maxim ‘lex
iniustissima non est lex’, i.e., a grossly immoral law is not a law.
If the comparison to the Third Reich seems exaggerated, let’s be reminded of the
persistent, propaganda-supported dehumanisation of refugees and migrants
attempting to enter Poland via Belarus. The Polish authorities led by Minister
Kamiński, Minister Wąsik, Minister Blaszczak and uniformed services (the army and
the Border Guard) already have 45 people who died in the Podlasie forests on their
conscience. Women and children are amongst those who are pushed ‘over the fence’
and dying, yet for the government, it is merely a ‘hybrid weapon’ of Lukashenko and
Putin.
Given these circumstances, one should accept the presumption of
unconstitutionality of Law and Justice statutory laws (at least in certain areas) and
ostentatiously boycott their bizarre ‘commissions’. Non-judgments passed by neo-
judges should be treated in the same way. The semblance of legalism changes
nothing in these matters: the usurpation of power is not remedied by usurpers
dressing themselves in borrowed plumes.
Bandit Government is to be Resisted
Usurpation and banditry, even if disguised as a government, is something to be
fought against; it is not something you merely criticise and then wring your hands
and ultimately bend to it. Even if those in power once did have a democratic
mandate, they have lost it by repeatedly violating the constitution. When summoned
to the public prosecutor’s office, civil rights activist Władysław Frasyniuk once
declared that he will not appear when called in by an authority that places itself
above the law. The judge Igor Tuleya boycotted meetings of the Supreme Court’s
Disciplinary Chamber in his cases because he did not recognise it to be a court (and
rightly so). Both Władysław Frasyniuk and Igor Tuleya have set a model examples of
civic dignity and bearing in recent years.
In this context, one can disapprove of the lack of stamina on the part of opposition
politicians who announced, on several occasions over the last few years, to be
boycotting the public television (TVP) on a wave of righteous indignation at its
practices, only to quietly go back on air in the end and thus actually legitimise the
‘public’ television’s organised hate ravings. When a few gutsy MEPs (including five
women MEPs) voted in favour of a high-profile resolution on the rule of law in Poland
back in 2017, the Civic Platform (PO) authorities threatened them with disciplinary
liability.
Head-on Disobedience
When the chessboard of a political game turns into a boxing ring, it must be
overturned. Continuing to play the game and hoping for a change is naïve; it clouds
the public perception of the situation and lends credibility to those in power.
Boycotts of institutions, social protests and acts of civil resistance are vital when
compliance with the constitution cannot be accomplished using parliamentary
methods.
Wringing hands over yet another eye-opener demonstrating the dependency of
President Duda (who actually happens to rank lower in the power camp than the
Minister of Justice, Zbigniew Ziobro, and Jarosław Kaczyński’s pet cat), is a pure
naiveté, just as relaying on hope that those in power are able to contain themselves is.
The bandit PiS ruling party must encounter nothing less than a firm and open
disobedience, yet with a readiness to bear all the consequences. The costs will fall
first and foremost on the (still) ruling political camp.
Those summoned by the ‘committee’ in the future should have no qualms as to how
to respond.
