Poland's electoral inquisition

WARSAW — Poland’s ruling party, Law and Justice (PiS), has now taken another step toward full-scale autocracy. With parliamentary elections approaching this fall, PiS has drafted a law to create a special commission to investigate Russian influence between 2007 and 2022, a period that includes the opposition party Civic Platform’s time in power (2007-15). Worse, Polish President Andrzej Duda has already signed the bill, while referring it to the PiS-subservient Constitutional Tribunal for a rubber-stamp review.

The commission will be able to ban people from holding public office for up to ten years if it concludes that they have ever done anything “under Russian influence.” Nothing more needs to be proven. It will issue its full report by September 17, as if the summer vacation season provides enough time to examine 15 years of Polish politics.

Seeing the move as an obvious and brazen attempt to head off any electoral challenge by Civic Platform’s Donald Tusk, the opposition has called the legislation “Lex Tusk” (“Tusk Law”). This is not mere speculation. State Secretary Janusz Kowalski has openly admitted that he hopes “the result of the commission’s work will be to bring Donald Tusk to the State Tribunal”.

The commission will simultaneously play the role of secret service, state prosecutor, judge, and jury. Its nine members will be appointed (or dismissed) by the PiS-controlled parliament, and its procedural rules will be set by the prime minister. It will have the power to enforce its subpoenas with fines of zł20,000-50,000 ($4,500-11,700), or by detaining non-compliant individuals.

It also has the right to order the prosecutor general’s office to search homes and other premises, and to record and disclose any information (except religious confessions) from any person or institution, including corporate trade secrets (a category that will include the media). The commission’s members will be covered by parliamentary immunity, and thus cannot be held accountable for their decisions in the future. It will be their prerogative to change any administrative decision made between 2007 and 2022 if they believe that Russian influence was involved.

The commission violates every fundamental legal principle in Poland. Public authorities are supposed to operate within the confines of the law as established by Article 7 of the Polish constitution, which is based on a division of legislative power, executive power, and judicial power. Criminal liability applies only to acts that were prohibited at the time they were committed (Article 42), and everyone has a constitutional right to defend his honor and good name (Article 47). Yet in this case, the commission’s accusations will be the final word.

The commission reflects PiS Chairman Jarosław Kaczynski’s ruthlessness and desperation to stay in power. If ousted in the election this fall, he and dozens of his associates could face criminal liability for their lawlessness, corruption, and mismanagement over the past eight years. No one is surprised at the lengths to which they will go to prevent that outcome.

What is more puzzling is Duda’s support for the law. Since he is already serving his second term and seemed to be hoping for some respectable international post or mission after he leaves office in 2025, one might think that he would be more influenced by the United States than by his own party at this point. The US has a long history of interfering with Polish authorities’ decision-making, such as when it intervened to save TVN, the largest private television station in Poland, from a Kaczynski takeover attempt. The Americans have also prevented the PiS government from purging the top ranks of the military.

Moreover, before Russia’s full-scale invasion of Ukraine, Duda had been consigned to international isolation, owing to his role in the anti-democratic reforms that PiS has implemented since coming to power in 2015. Not until Poland proved indispensable in providing aid to Ukraine was he brought in from the cold. His global profile has since risen considerably.

So why plunge back into the darkest populist waters now? And why have the Americans not tried to stop this outrageous attempt to eliminate Poland’s top opposition leader from political contention? When asked, the best response the US ambassador to Poland, Mark Brzezinski, could muster was: “We fully appreciate and understand why President Duda redirected this law to the Constitutional Tribunal.”

Since Brzezinski certainly knows that this legal referral was just a trick, and that the Court is fully subservient to PiS, we must conclude that as long as there is a war in Ukraine, that will remain the top priority for the US, even if it means that the rule of law in Poland will be eroded further. Besides, why make life any more difficult for a Polish government that spends tens of billions of dollars purchasing US weapons and nuclear power plants. We can also conclude that Duda no longer expects to receive a cushy international sinecure after he leaves office. Since he will be only 53 years old, he will need Kaczynski’s support if he hopes to remain a player in Polish politics.

What will Lex Tusk mean for the opposition and Tusk himself? Early signs suggest that it could be galvanizing. Though he is not an MP, Tusk appeared defiantly in parliament during the passage of the law, and will lead a protest march on June 4, which may bring out a record-breaking crowd. If Tusk is eliminated as a candidate, he may be replaced by an even more popular opposition leader: Warsaw’s Mayor Rafał Trzaskowski. With apparently nothing left to lose, has Kaczynski finally overreached? The stakes in this year’s election are now even higher.

Sławomir Sierakowski, founder of the Krytyka Polityczna movement, is a senior fellow at the German Council on Foreign Relations. Copyright: Project Syndicate, 2023. 

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