1. How did the parliamentary elections pan out?
Following the parliamentary elections in October 2023, the political situation in Poland has changed substantially. According to the final count by the National Electoral Commission, turnout reached a record-setting 74.4%. In the lower house, the Sejm, the opposition, secured 248 seats, compared to the Law and Justice (PiS) securing 194 seats; in the higher house, the Senate, the opposition secured 66 seats, compared to PiS securing 34 seats. As a result, PiS had lost a parliamentary majority held since 2015.
In a bid to buy time for PiS, on 6 November, President Andrzej Duda had designated the incumbent Prime Minister Mateusz Morawiecki to compose a cabinet and become Prime Minister again, despite PiS lacking not only seats, but also potential partners for a coalition. Just days later, the opposition announced Donald Tusk as candidate for Prime Minister.
On 27 November, Morawiecki was sworn in by President Duda for a third term as Prime Minister. On 11 December, Morawiecki lost the vote of no confidence in the Sejm, with 190 votes for yes against 266 votes for no, which followed with a nomination of Donald Tusk for Prime Minister, with 248 yes votes and 201 no votes against [1], [2].
In parallel, during the first session of the new Sejm held on 13 November, Szymon Hołownia, founder and leader of Poland 2050, was elected Marshal (Speaker) of the Sejm, thus winning over the PiS incumbent Elżbieta Witek. In the Senate, Civic Platform’s Małgorzata Kidawa-Błońska was elected Marshal of the Senate.
2. What is their aftermath?
All-in-all, these results constitute a major step for Poland to take a turn back in the direction of democracy and the rule of law after 8 years of PiS being in the driver’s seat and devastating the constitutional checks and balances. However, even though PiS lost the parliamentary majority held since 2015 in both houses, substantial challenges remain.
First of all, PiS still obtained the best result of all political parties with 35.4%, compared to 30.7% of the Civic Coalition led by ex President of the European Council and current Prime Minister Donald Tusk, followed by 14.4% of the Third Way, 8.6% of the Left, and 7.1% of the Confederation.
Second of all, Prime Minister Tusk and the ex opposition in both houses will still face substantial difficulty with passing legislation, considering that President Duda remains in office until 2025. With the looming power of veto, which requires a majority of 60% to overcome, any attempts of the opposition to undo the damage perpetrated by PiS will likely be jeopardised and will have to wait until the presidential election in 2025.
Third of all, and most importantly, one of the biggest challenges and tasks of the new parliament will consist in reversing and repairing almost a decade of abuse of the rule of law by PiS and the hijacked state institutions such the Constitutional Tribunal, part of the Supreme Court, the prosecution service, the state media and various supervisory/auditory bodies and multiple government agencies etc.
3. The State of Repair
New Prime Minister Tusk himself had promised to “chase away the darkness… chase away the evil” and to “fix everything together” [1], [2] in parallel, however, he had also argued and warned time and time again throughout the campaign that repairing Poland will be a challenge, which takes shape of several people and topics.
3.1 President Andrzej Duda & the legacy of PiS
Already in October 2023, President Duda, notorious for his loyalty to PiS, had not only sworn in a minority government with the incumbent Prime Minister Morawiecki that had only lasted for a couple of weeks (until the expected non-confidence vote), but had also pledged to defend the politico-institutional legacy of PiS by using his power of veto.
In the Sejm, winning over a presidential veto requires a majority of 60%. In consequence, this will constitute a challenge for the new Prime Minister Tusk and the new parliament in repairing the rule of law, constitutional principles, and judicial and institutional independence until at least the 2025 presidential election.
3.2 Minister of Justice Zbigniew Ziobro & the politicisation of the public prosecution
Since 2015, Minister of Justice and Public Prosecutor General Zbigniew Ziobro has been hijacking and politicising, and instrumentalising the public prosecution on behalf of PiS. As a result, the public prosecution became an instrument for not only abusing, but also inducing a chilling effect vis-à-vis not only any opposition and activists, but also independent prosecutors and judges, and even entrepreneurs. ODF had written reports about such malicious prosecution “Polish Public Prosecutor’s Office: Selected Cases of Malicious Prosecution Since 2015” and about the persecution of entrepreneurs and corporate raidership, with cases of Przemysław Krych and Piotr Osiecki.
Following the parliamentary elections, Ziobro was replaced by ex Ombudsman Adam Bodnar. In line with the promise made by Tusk to return the rule of law to Poland, Bodnar has refused to fall in line with the intention of President Duda and removed National Prosecutor Dariusz Barski, arguing that “(his appointment was made) without a proper legal basis and had no effect” [1], [2].
3.3 Constitutional Tribunal (CT) President Julia Przyłębska & the National Council of the Judiciary (KRS)
Article 194 of the Constitution stipulates that “The Constitutional Tribunal shall be composed of 15 judges chosen individually by the Sejm for a term of office of 9 years (…). No person may be chosen for more than one term of office”. In 2015, the Civic Platform (PO) lost both the presidential and parliamentary elections. Moreover, 5 out of 15 judges were due for appointment.
PO therefore sought to appoint new judges “in advance”: Roman Hauser, Krzysztof Ślebzak, Andrzej Jakubecki, Bronisław Sitek and Andrzej Sokala. However, President Duda refused to swear those judges in and instead nominated Piotr Pszczółkowski, Julia Przyłębska, Mariusz Muszyński, Henryk Cioch, and Lech Morawski, all of whom were notoriously loyal to PiS and were sworn in straight away. The CT, with its President at that time Andrzej Rzepliński, only validated judges Pszczółkowski and Julia Przyłębska, and invalidated Cioch, Morawski, and Muszyński. To ensure that all of its judges be sworn in, between 2015 and 2016, PiS had enacted a total of 6 bills, which established, among others, a ⅔ majority in cases of full bench adjudications. In parallel, the term of President Rzepliński ended in December 2016, and President Duda appointed Julia Przyłębska, who is notoriously loyal to PiS. As a result, by 2021, PiS had nominated all 15 judges and the President, effectively hijacking the CT.
That same year, at the request of ex Prime Minister Morawiecki, the Constitutional Tribunal had examined Articles 1, 2, and 19 of the Treaty on European Union (TEU), concluding that these provisions collide with the Constitution, thus challenging the principle of primacy of European Union law [1], [2], [3].
In parallel, between 2017 and 2018, PiS had reconstituted the National Council of the Judiciary (KRS), causing its members to be elected by politicians rather than by judges. In 2019, the Supreme Court had ruled that the new KRS is “not an impartial and independent body”; in 2022, the European Court of Human Rights (ECHR) had ruled that the new KRS “does not provide sufficient guarantees of independence from the legislative or executive powers”. Those verdicts, however, have been rejected by the PiS government.
In a move to unfreeze the money from the National Recovery Plan (NRP) and to halt the daily fines of EUR 1 million imposed by the Court of Justice of the European Union (CJEU), PiS closed the Supreme Court Disciplinary Chamber in July 2022. However, it was merely replaced by the new Supreme Court Chamber of Professional Accountability, which remains loyal to PiS; moreover, the new KRS remains under PiS’ control.
3.4 National Bank of Poland President Adam Glapiński & “stagflation”
Since 2016, PiS has been pursuing an economico-monetary policy based on populism and huge spending programmes to fuel its social benefits to solidify its political base, causing the deficit to reach EUR 42.4 billion and the spending to EUR 199.8 billion.
Inflation rose to 17.2% in March 2023 and has been sitting above the target set by the National Bank of Poland by 2.5%. As a result, GDP growth is set to reach 0.4%, rather than the usual 4% to 6%, and Poland is tackling “stagflation”.
In consequence, Prime Minister Tusk and the Civic Coalition pledged to hold Glapiński accountable for “destroying the independence” of the Central Bank of Poland [1], [2]. However, the Constitutional Tribunal ruled that putting Glapiński on the State Tribunal would require a qualified majority, and that the new coalition could likely not assemble.
3.5 Media Freedom
For almost a decade, PiS has misused the public media as its mouthpiece [1], [2]. Director of TVP2 Marcin Wolski had admitted “I say this as an accomplice: we created propaganda at a worse level than in the 1970s” and condemned that “the Stalinist logic won: whoever is not with us is against us”. In consequence, the newly elected Sejm had passed a resolution to restore “the statutory duty to be politically neutral” of the public media. However, numerous PiS MPs were absent during that vote to protest for “media independence and pluralism” at the headquarters of TVP.
In reply, President Duda threatened to veto the spending bill for 2024 tabled by Prime Minister Tusk, which is creating “an unprecedented situation when the president tries to influence public finances for which the government is responsible”.
4. Consequences for the Open Dialogue Foundation (ODF)
This political tug-of-war that Poland has been going through since October 2023 certainly did not happen in vacuum vis-à-vis ODF. Back in 2018, the Internal Security Agency (ABW) issued a classified opinion which led to an entry ban being imposed on ODF founder and President Lyudmyla Kozlovska in the Schengen Information System (SIS) and the Register of Foreigners, whose residence on the territory of Poland is undesirable. In consequence, Lyudmyla was banned from entering most Member States of the European Union. Only in December 2022, the Supreme Administrative Court (NSA) ruled that the documents that were used to establish the ban failed to provide a sufficient basis to conclude that Lyudmyla posed a threat to national security; however, she was still banned from entering Poland.
In 2017, ODF Chair of the Board and Lyudmyla’s husband Bartosz Kramek had published a post on Facebook calling for civil disobedience against PiS for its abuse of the rule of law. That, along with false information from Russia, Kazakhstan, and Moldova, had likely been used for the ban.
In January 2024, the Voivodeship Administrative Court in Warsaw ordered the Office for Foreigners to remove the ban on Lyudmyla. Even though the verdict is not yet final and can be appealed by the Office for Foreigners, this is a huge step forward.
The ban came at the personal request of Mariusz Kamiński and Maciej Wąsik: Kamiński was ex Head of the Central Anticorruption Bureau (CBA) and Wąsik was his deputy, Later, Kamiński became Minister-Coordinator of the Secret Services (2015-2023) and Minister of the Interior and Administration (2019-2023), while Wąsik became Secretary of the Council for Secret Services (2015-2023) and Secretary of State at the Ministry of Interior and Administration (2019-2023).
In December 2023, Kamiński and Wąsik were sentenced to two years of prison for abuse of power in an investigation into corruption back in 2009; in 2015, Kamiński along with 3 officials from the CBA were found guilty, but President Duda had granted presidential pardons; In June 2023, the Supreme Court had rejected the presidential pardon on the grounds that Kamiński was still appealing that verdict at the time. The Constitutional Tribunal, controlled by PiS, had ruled however that the Supreme Court had no authority to question President Duda, contrary to opinions from legal scholars and experts alike who argued that this is unconstitutional and lacks even basic common sense “Pardoning an innocent person – that is, someone who has not been convicted in a final ruling – is like granting a divorce to a person who is engaged to be married”.
President Duda pledged “I won’t rest until Minister Mariusz Kamiński and his colleagues are free people again, as they should be, until they are released from prison”, although issuing a second pardon would ipso facto constitute a recognition that the first pardon was invalid.
On 19 December 2023, ODF won its 6th defamation case. Following victories, public apology, and even compensation in cases against MEP and ex Minister of Interior and Administration Joachim Brudziński and against Wąsik among others, ODF won against Balli Marzec, a self-proclaimed leader of the allegedly democratic Kazakhstani opposition in Poland, who had made vicious and fake accusations against ODF. Notorious for her sympathy vis-à-vis Kaczyński, Morawiecki, and most recently Grzegorz Braun, as well as anti-semitism and anti-Ukraine xenophobia and love of the far-right, Marzec has been active in several PiS mouthpieces and far-right media and channels on YouTube, including wPolityce, wPolsce, TV Republika, Tygodnik Solidarność, and wRealu24.
5. So what?
All-in-all, the parliamentary elections and Donald Tusk becoming Prime Minister provided a glimmer of hope regarding the rule of law making a comeback in Poland. However, as Brussels and Berlin breathe sighs of relief, Warsaw forces memories when they were gasping for air while witnessing the events in Poland.
President Duda will obviously remain loyal to PiS and protect its legacy and cronies until the 2025 presidential election; moreover, with the 2024 EU elections, President Duda and PiS have no reasons to grant any wins for Tusk’s and the new parliament’s agenda of reforms, even at the expense of EUR 59 billion frozen in the NRP.
Those, however, could constitute an opportunity for Tusk to circumvent President Duda and his veto by renegotiating the agreement with Brussels, which stands eager for a comeback of a Weimar Triangle; that, however, may require changing the order of reforms, commencing with nonjudicial files and moving on to judicial files after 2025, only under the assumption that PiS will lose again.
Cover photo: stock.adobe.com
