On Sunday 15 October the Polish parliamentary elections returned a result of 35.4% for the Law and Justice Party (PiS) and a combined 53.7% for the Civic Platform (KO), the Third Way (TD), and the Left (Lewica) parties.
The pledge between these three opposition parties to form a coalition government would give them 248 seats out of 460 in the lower house of parliament (Sejm). The arithmetic suggests the beginning of the end of 8 years of Rule of Law “backsliding” in Poland.
Barring any dramatic collapse in the unity of the opposition parties, it seems that their absolute majority in the lower house will be sufficient to enable them eventually to form a government and for Donald Tusk to assume the office of Prime Minister once again.
The question is how can the new Polish government work to reverse the damage done to the Rule of Law during the PiS years without undermining the stability of the legal order, and also alienating and radicalizing their right-wing political opponents?
It seems clear that any attempts to restore constitutionalism by breaching constitutional requirements, as proposed in the Hungarian context, could undermine the Rule of Law and the political trust necessary to resuscitate a healthy democratic culture.
However, rigid adherence to legal formalism could also have negative consequences. It may be unproblematic if the three judges who hold seats that were filled illegally in 2015 were removed from any future adjudication.
But if the opposition hold that all the decisions of the Constitutional Tribunal in which the illegitimately appointed judges participated are void by virtue of the original sin of their illegal appointments, then this would see 8 years of jurisprudence wiped out.
More dramatically, Iustitia have proposed that all judicial nominations made by the National Judiciary Council since its capture should be annulled.
If a decision is made that all judicial appointments under the rules established by PiS are void for failing to adhere to EU and ECHR standards on the composition of tribunals and judicial independence, then this could see a vacuum left in the legal system as judges lose their jobs throughout the hierarchy.
A further proposal to restore the Rule of Law would see the separation of the offices of Minister of Justice and Prosecutor General that have been held by Zbigniew Ziobro, the chief architect of the illiberalization of the legal order.
Such a move would restore constitutional propriety by acting proactively and regulating a root cause of backsliding for the future, rather than addressing the effects of the policy in a retroactive manner by firing judges.
At the European level, the immediate question is whether the new coalition government can fulfil the Rule of Law-related super-milestones imposed by the European Commission to access withheld EU funding.
Donald Tusk’s meeting with Ursula von der Leyen on 25 October even before the government has been formed may be a political signal of the new willingness for collaboration. But pressure to access these funds could provide exogenous incentives for the new government to pursue more drastic measures to reverse backsliding and restore judicial independence.
The longer term intrigue is whether the change of government in Poland can arrest the “illiberalism within” the supranational project. Perhaps most tantalizing is the prospect that Hungary being left alone in its resistance to EU values could provide the momentum for the European Council finally to proceed to a vote on whether there is a clear risk of a serious breach of values, 7 years after the Article 7 procedures commenced.
However, the confirmation of Robert Fico as the Prime Minister of Slovakia may mean that Orbán can simply swap Warsaw for Bratislava as his veto player for any such proceedings.
One certainty regarding supranational politics if the opposition take power in Poland is that Europe will not be faced by the scenario of successive Fidesz and PiS-led Presidencies of the Council of the EU – albeit as part of two separate troikas – from July 2024 to June 2025.
Minimizing the potential disruption of such illiberal presidencies to the EU’s legislative program will be invaluable, particularly as there are no indications that proposals to suspend Hungary’s presidency will be implemented, despite continuing provocations such as Orbán’s recent comparison of the EU to the Soviet Union on the anniversary of the Budapest uprising in 1956, days after shaking hands with Russia’s current authoritarian leader Vladimir Putin in Beijing.
By stark contrast to the worsening situation in Hungary, Poland may be facing a new dawn and a restoration of liberal democracy. But caution may be required to ensure that this dawn does not darken again into political acrimony and fragmentation.
What may appear to be Rule of Law restoration by the opposition could be presented by a resentful PiS as political retribution and punishment by a former European Council President for disobedience to “Brussels”.
Compromise with the illiberals may be necessary to restore the Rule of Law and democracy as a living practice of regulated political competition,as opposed to mere compliance with legal rules on paper.
Many thanks to Kasia Krzyzanowska for feedback on an earlier draft.