Poland's Post-Populist Rehab

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"All solutions were flawed, but the most flawed was to do nothing, and to do nothing slowly." That is what Julian Barnes wrote about how to deal with past crimes in The Porcupine, his 1992 novel about the collapse of communism in Eastern Europe. Today in Poland, where Prime Minister Donald Tusk is trying to restore liberal democracy after eight years of populist rule, this advice seems more than timely. Rather than do nothing, Tusk is taking the opposite approach: he is moving quickly and decisively to rehabilitate Poland's public institutions and loosen the grip that the right-wing Law and Justice party had on virtually all spheres of public life, from the judiciary and the media to the military, the education system and museums.

After the swearing-in of a new government in December, Tusk quickly began to restore the rule of law in Poland. His new justice minister, Adam Bodnar, presented a special "action plan" to the General Affairs Council of the European Union to address concerns about the democratic backsliding that took place under Law and Justice. Bodnar outlined a plan for a constitutional reset and began removing some prosecutors and judges from their posts. The most important tasks in the process of restoring the full independence of the judiciary, including changes to the Constitutional Tribunal and the Supreme Court, have yet to be carried out, as they are the most complicated. In early March, the parliament passed a resolution "to remove the effects of the constitutional crisis of 2015-2023," a first step toward restoring the independence of the Constitutional Tribunal. Certainly, the most controversial of the changes undertaken by the new government was the firm decision by Bartlomiej Sienkiewicz, the new minister of culture and national heritage, to legally liquidate the state media and reestablish it under new management.

But Tusk's forceful approach has also stirred mixed feelings among many who had expected Poland to easily revive its democracy overnight. "What on earth is happening in Poland?" read the title of a recent article in The Economist. Indeed, it may be difficult for outsiders to understand the legal battles taking place over literally every state institution. But the intensity of these fights speaks to how much damage Law and Justice did to Poland's democratic institutions while in power, and to populism's continued popularity in Poland and beyond. Today's fight to restore democracy in Poland is exactly that—a fight—and it requires the resolute methods that Tusk is employing if democracy is to have any chance of prevailing.

CREEPING IVY POPULISM

What is going on today is often compared to the turmoil of 1989, the year Poland held its first partly free elections and started its democratic transformation. After the fall of communism, the question arose as to how the pro-democracy camp could take over state institutions that had been controlled so completely by the communists. Today, the same question arises about taking power out of the hands of Poland's national populists. In 2015, Law and Justice swept to power under the leadership of Jaroslaw Kaczynski. Within almost a decade, the right-wing populist government wrapped itself like ivy around once democratic institutions.

Law and Justice party nominees were placed in key positions in virtually all state bodies. The populist government interpreted neutrality as favoring the previous government and thus required that impartial officials be removed. Above all, institutions such as the Constitutional Tribunal, the Supreme Court, and the state media were subordinated to the will of the Law and Justice party. Over time, other institutions of financial importance, including the National Bank of Poland and the main state enterprises, and a variety of cultural institutions, including museums, also came under the control of the government. At the same time, the disbursement of huge amounts of state money was linked to the implementation of national conservative policies.

Even though they are no longer in charge, the national populists still have resources, positions, and control of some key institutions, as the ex-communists did almost 35 years ago. They continue to control the Constitutional Tribunal, which has the authority to block legislation and therefore stand in the way of necessary reform. Until its final days in office, the Law and Justice government was preparing various legislative traps, including efforts to give more power to the country's president, Andrzej Duda, a former Law and Justice member who usually remains aligned with the party. In the summer of 2023, a bill was swiftly approved in parliament to guarantee the president's influence over Poland's appointments to the European Union and strengthen his role in EU policymaking.

Despite the similarities between now and 1989, particularly the level of state control by the previous government, certain aspects of today's situation in Poland make rapid democratic reform perhaps even more difficult.

First, unlike communism in 1989, illiberal populism is hardly in global retreat: indeed, a populist-authoritarian wind is blowing not only from countries such as Russia and China but also from the West. In 1989, Mikhail Gorbachev, the leader of the Soviet Union and father of perestroika, was a symbol of the era. Today the embodiment of the populist era is former U.S. President Donald Trump, the Republican Party's leading candidate for president, who could return to the White House after November's election. National populists are in power in Italy and won elections in the Netherlands last November. The struggle against illiberalism is consequently much more difficult than the fight after the demise of communism in 1989 because it is not only about rebuilding a better state but also about inventing better ideas and innovative ways to communicate them.

CLEARING A LEGAL MINEFIELD

When Law and Justice came to power in 2015, it quickly targeted Poland's judiciary, the only branch of government it didn't control. Apart from the highest Polish courts mentioned above, thousands of new judges were appointed, and some of them indeed proved loyal to the newly installed system. The office of the state prosecutor was joined with that of the minister of justice (they were previously separated), which gave the Law and Justice party even more influence in major cases.

Today, lawyers are debating about how Tusk should reform the judiciary to restore the balance of power among Poland's three branches of government. The legal scholar Wojciech Sadurski, for example, argues that the Constitutional Tribunal should be "zeroed out," meaning that all judges illegally seated by Law and Justice should be removed, effective immediately. Others, such as Ewa Letowska, a former Constitutional Tribunal judge and the country's first ombudswoman, serving from 1988 to 1992, point out that it is not possible to deal with a state institution in this way because it would evoke the modus operandi of Law and Justice. She argues for a more patient approach. Contrary to expectations, Bodnar, the new justice minister, has moved quickly, making a series of bold decisions. For instance, he dismissed ten district and regional prosecutors overnight on the grounds that their appointments were unconstitutional—apparently recognizing that in certain legal areas, there is very little room for compromise.

One of the first decisions of the new government in Warsaw was for Poland to join the European Union's Public Prosecutor's Office, reversing the position taken by the Law and Justice party, which opted to keep Poland a nonmember. The move has the potential to transfer responsibility of investigating wrongdoing by Law and Justice to an independent European body rather than handling it locally. This move is interesting because it exports at least a part of Poland's post-populist challenges, bypassing the country's internal polarization. Moving such investigations out of the country would be helpful, given that Law and Justice turned the state prosecutor's office into a tool of political warfare to be used against the party's opponents. In other areas as well, the Tusk government is proposing cautious integration with the EU as a cure for national populism.

SEMANTIC ANARCHY

In 1989, Polish ex-communists were ready to be integrated into the new democratic system because they considered it a better future for themselves and their children. But today, as in so many other countries, there are two different versions of political reality: a liberal one and a populist one.

The liberal version promises Poland a future within the EU, which would require a reinstatement of the rule of law and values such as individual freedom and dignity. It means further development of the country's infrastructure and forging stronger alliances in concert with NATO. The populist future promises more isolated, nation-oriented development and an obscure vision of a Europe in which countries compete. It also includes a reactionary attitude toward women's rights, including the right to abortion.

In service of its version of the truth, members of the Law and Justice party have presented themselves as the defenders of the rule of law, even though they have been violating constitutional principles for eight years. Soon after the party took power in 2015, the government stopped publishing inconvenient Constitutional Tribunal rulings to back up its claim that the decisions had not entered into force.

Unlike communism in 1989, illiberal populism is hardly in global retreat.

Today, the leaders of Law and Justice are even appealing to the West for protection, using this upside-down rhetoric to attract sympathy. For example, Kaczynski compared Tusk to Adolf Hitler in January, saying that his government was reminiscent of Nazi Germany, where "the will of the Führer was also considered to be the law."

With each side accusing the other of breaking the law, politicians in the new government and disoriented citizens often seem to be powerless witnesses to a legal tug of war.

It is therefore unclear whether quick post-populist justice is possible. Start with the fact that Poland does not have much experience in carrying out such a transition. After 1989, many were frustrated that perpetrators of communist-era crimes faced no serious legal consequences. There was a widespread belief that the leading communists got away with almost everything. Meanwhile, today's post-populist rule began with the actual imprisonment of two prominent Law and Justice politicians who were convicted of earlier abuses of power. Their arrests came as a legal shock to the system, which was mitigated only to some extent by the presidential pardons Duda eventually issued for both.

To avoid any political, let alone criminal, liability for the period of 2015-23, the national populists are sowing a kind of semantic anarchy, describing any attempt to reinstate the rule of law as illegal. In January, for example, the two politicians who were arrested on charges of abuse of power were quickly transformed into "political prisoners," echoing how dissidents under communism were described. In this twisted way, Law and Justice is laying claim to the legacy of the pro-democracy Solidarity movement of the 1980s, whose leaders are viewed as great heroes in Poland.

POST-POPULIST TIDYING UP

To fully unwind illiberalism and prevent its return, Poland needs not just a simple restoration, but a kind of a "restoration plus." This means constructing a new state with attention to what Montesquieu called the spirit of the laws, to procedures, and to everyday habits in a social media era. Though it is rarely mentioned today, the liberal democracy in place before 2015 was also flawed: procedures that existed on paper were not correctly observed in practice, including proper implementation of the Constitutional Tribunal's rulings, and stable democratic habits were lacking. If the change brought by Tusk is to be long-lasting, these deficiencies will have to be addressed.

Voters also want reforms in other state institutions, including education, health care, and the social security system. Despite obvious modernization since the country's democratic breakthrough 35 years ago, these complex bodies remain underfinanced and ineffective, which is perhaps the most important distinction between Poland and the countries of western Europe.

Liberal democrats in Poland must also consider that the geopolitical situation has radically changed. Therefore, some elements of Tusk's foreign policy may bear a resemblance to that of Law and Justice. Russia's full-scale invasion of Ukraine has made aid to Kyiv a nonpartisan issue: the Tusk government is strongly in favor of it, too. The uncertain outcome of the war in Ukraine means that the transatlantic option, namely NATO membership, will remain central to Poland's foreign policy. Law and Justice spent a record amount on arming the Polish military. The new government is doing the same, led by a sense of post-traumatic sovereignty, our term for the collective memory of the repeated violent erasure of a country from the map, something experienced by Poland but also other east-central European countries. Having survived the trauma of disappearing as a state, Poland is not only eager to generously spend money on the military but also to advocate for more arms for Ukraine. Anxieties about Polish independence unite politicians so much that Tusk and Duda are visiting the White House together on March 12.

Yet already, Tusk is more willing to criticize the United States than the previous government was. Responding to the U.S. Senate blocking aid for Ukraine, he wrote in a social media post: "Dear Republican Senators of America. Ronald Reagan, who helped millions of us to win back our freedom and independence, must be turning in his grave today. Shame on you." Nevertheless, NATO will remain the main security guarantor for Poland no matter who is president in Washington.

The national populists are sowing a kind of semantic anarchy.

Poland's stance on Germany may not change dramatically, either. Law and Justice used anti-German rhetoric and propaganda to mobilize certain parts of the Polish electorate, capitalizing on the public's skepticism about Germany's foreign policy choices, especially its treatment of Russian President Vladimir Putin. Convinced that they were morally and strategically right about him, the Poles and other peoples in eastern and central Europe no longer want to be treated as junior partners in their relationships with Germany. This is why some knotty bilateral issues such as the topic of World War II reparations will continue to play a role in Polish-German relations, although the emphasis is now on building a well-balanced alliance, and not antagonism, with Germany.

As the Tusk government forges ahead, it must remember that although populist voters lost the election last October, they must not be forgotten. Law and Justice will remain the party that won the most votes and is therefore a vital part of the political landscape. To some extent, Poland will continue to be a country whose nationalism is at fever pitch.

The new government can, of course, limit itself to meeting the expectations of its own electorate. But its long-term goal is something else: the stabilization of liberal democracy in Poland. To achieve this agenda, it will need to attract voters who did not vote for change in the fall of 2023. Thus, a new political experiment has begun in Poland, and the world will be watching closely to see if its post-populist era is here to stay.

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