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Professor: PiS didn't care about the law very much, now it can be used against them

Source: Dmitri Fedotkin/ERR

The new Polish government will not be able to restore democracy by respecting the unconstitutional institutions created by the previous government, Anna Wojciuk, a professor of political science at the University of Warsaw, told ERR. Additionally, creating an impartial and neutral national broadcaster is a big challenge in a polarized society.

The new Polish government has taken office and started its reforms – and it seems to have been quite a rough start. How would you describe it?

For those who look at Polish politics closely, it was not that much of a surprise. For the last eight years, Law and Justice (PiS) had been building an electoral authoritarian state and introducing a lot of unconstitutional institutions into the system. Some institutions acted in an openly unconstitutionally way.

So one could expect that once they lost the election — and it was an unlikely scenario in my opinion, so for those of us for whom democracy is important it was a great surprise — that they were going to give up all these institutions and would not hesitate to use them against the new government to slow down the process of restoring democracy and to complicate governing for them.

Some critics say that restoring democracy is a good goal, of course, but the new government itself is also breaking the rules and law. How do you see it?

As I said previously, in the Polish system there are unconstitutional institutions and institutions that act unconstitutionally. There is virtually no way to restore democracy while respecting all those unconstitutional institutions. There is no way. It's a labyrinth from which there is no way out. So you have to say that you're not going to respect some of those institutions because they were not implemented in a constitutional way.

It's not at all the same as what Law and Justice (PiS) did. When the party took power in 2015, the Polish system was acting constitutionally. It was not perfect like everywhere in the world. It's never perfect, but essentially, they were in a situation when everything was acting legally and then they gradually destroyed it.

Now we are in a situation in which the system is virtually hacked. It's like a virus in the system. And if you do all the things the virus tells you to do, there is no way to cure it.

So there is a fundamental difference between what the new government is doing and what Law and Justice did. The new government said all our decisions are essentially subject to the assessment of the courts and we will respect their verdicts. If they say this way is illegal, then we will withdraw. Law and Justice did not respect the verdicts of the courts. When the Polish Constitutional Tribunal said that what they did was unconstitutional, they just did not publish the verdict.

But at the moment the courts are also under PiS' control, the Constitutional Court is fully and the Supreme Court partially.

Yes. So the constitutional court is fully under the control of Law and Justice and it's politicians. They really are politicians, people who are members of parliament from Law and Justice. With the Supreme Court there are different chambers and some of those chambers were declared also illegal under EU law, the EU court said that those chambers do not guarantee the independence of judges. So the EU does not acknowledge them as judges. At the same time, we can see here that the new government is trying to work around those illegal chambers.

But if the new government says they respect the court's verdicts, and if courts are also controlled by PiS, then isn't it a labyrinth?

 No, but they say that these are not the courts. Those people are not judges. Those institutions are not courts. From the beginning, we call those illegally nominated judges "neo judges", like a pseudo judge. When we talk about the constitutional tribunal, we say it's a constitutional tribunal by Julia Przylebska, who is the Chief Justice there. So we say it's not the institution, it's something different.

So even on the level of language, there is a way to distinguish those institutions that are legal and illegal. But it's complicated.

Can you describe the current situation with Poland's public media?

So the first thing is how the Polish TV and Polish public radio were working was against the Constitution and the law governing them because it says they should be impartial, neutral, and balanced. But it was literally like Russia Today. It was a type of very rude, very nasty, and aggressive propaganda.

For somebody who hasn't seen it, it's unimaginable how far we went. There was an electoral debate in the week before the elections, and I met with a Swiss journalist who wanted to talk with me about the elections and I invited her to watch together this debate. She was shocked because journalists were talking more than politicians. All the questions were closed questions with teases and the politicians had only one minute to answer each question. There was no debate, nothing like that. So for a person from Switzerland, from the free world, it was unimaginable for a journalist that this could be organized in such a way.

So the other point is that it was spreading very brutal propaganda, which even led to the killings of people who were previously in opposition or connected with opposition – very nasty campaigns. /.../ So, this was propaganda, completely inadequate information.

So, I think this would make it very difficult for the new government to govern, and you should remember that part of the Polish population, especially in smaller cities and villages, only has access to this source of news. This was really unacceptable.

Law and Justice created again a new institution, the Council of National Media, which was unconstitutional and even Law and Justice acknowledged that it was unconstitutional. But since 2016, they haven't done anything to change it even though they won majorities, they just didn't care. It was total voluntarism, we want and we do [what we want] and we don't care about the law.

This council named the heads of the TV and radio services?

Yes. So the new government used the fact that they had this body that was unconstitutional, which even Law and Justice even previously acknowledged, to find another way to stop this propaganda. They just stopped it broadcasting.

It was done to avoid Law and Justice creating pictures and footage of, I don't know, police getting inside. So I think it was done really in white gloves.

So for you, it may be shocking but I think the alternatives were even worse because it was like a siege of a building and they had cameras everywhere and they were waiting for the police to attack.

So at 11.16 a.m. or 11.18 a.m. they just cut them off and they were very disappointed and they started streaming their program on YouTube. They were shocked because they wanted to create this atmosphere of someone attacking them, [to show] that this transition is brutal. They wanted those pictures And I think the new government really did a good job not giving them those pictures in many different places, not only in public media.

The council was in place until approximately 2028, so following the rules until their term was over would not allow any changes to be made until after the next election.

There is also another body that should be in charge of nominating the president of the TV and radio which is in the Constitution.

The problem is that this body is in charge of monitoring if the public media is neutral, balanced, if it's acting according to the law, and, firstly, it never acted to restore any legal situation.

Secondly, yes, people on the council were nominated by Law and Justice, but according to Law and Justice, it's not in charge of nominations so this is the quandary that they created. Even though they control both bodies it's still unlawful, unconstitutional. They did not try to make it even appear as constitutional and both those bodies act against the law because the law says that those bodies should at least monitor how broadcasting is produced, how it's done, what is presented, and how it's presented.

But it was never even pretended to be impartial.

But under these terms, I understand that if you try to change the law, then the president's veto will protect them.

I think that the idea is that the new government is trying to take control over the state and then negotiate. Rather than negotiate in order to take control because, in my view, their assessment is that Law and Justice will not give it up. So if you negotiate from a position of weakness you will lose.

And the same applies with replacing prosecutors?

Yes, so here the new minister of justice found a way, which a lot of professors of constitutional law say is a very legitimate thing. Of course, there are always different opinions. So you will find other opinions as well.

But the minister said, okay, so let's allow the court to assess it. But also here I think what is remarkable is the transparency of their communication. So on the website of the Ministry of Justice, they published a very long justification explaining why and on what basis [they are acting]. They attached expert opinions and these are not usual experts of the Civic Platform.

So I think that they did a really good job in showing that they believe it's legally acceptable. Of course, Law and Justice will not accept it. But Law and Justice were not careful in what they were doing because they didn't care about the law that much. So now it can be easily used against them.

Do you believe that now, for example, the public media will become a propaganda tool for Civic Platform?

I think in a polarized society it's very hard to produce public media which would be acceptable for both sides. Even the BBC, to which we often refer, is very heavily criticized by conservatives that it didn't report Brexit as it should. So I'm worried that it's very difficult to create something that is really impartial and neutral. It's a big challenge.

So I think, for sure, that it's not going back in the direction where it has been previously because it's just not the aesthetic. I also think a lot of people think it's just not effective when you do it this way. It's a very narrow group of people who would like to see something like that.

Having said that I watched a couple of times and I don't think there is a lot of space for the conservative side of the society. So I think there are conservative themes but they are done from a more or less pro-government perspective. I haven't noticed really that there is, for example, a debate in which there are generally people who defend Law and Justice.

So, I think it's smarter, it's more sophisticated, but I don't think that for the moment they are giving a lot of space to the people who support Law and Justice. But also I am not monitoring it, so it's just an impression.

How do you think now Poland will move ahead? The president and the prime minister are on opposing sides. In Estonia, we hope Poland will be a big power and big player in Europe but maybe all the energy is wasted?

I think that in international affairs there are a lot of areas in which they will cooperate because we definitely have a common interest in Ukraine, regardless if you are for the government or against it. This is something that really unites Poland.

Also, when I look at how they manage EU policy, NATO policy, and different summits between the president and the prime ministers, I think they are doing it reasonably well.

So I think that for now foreign policy is excluded from this conflict and it's good.

So the only thing where there will be problems I guess is the rule of law and [Prime Minister Donald] Tusk will try to restore the rule of law and [President Andrzej] Duda was one of the founding fathers of the system which [former Prime Minister] Kaczynski was building and he will be reluctant to withdraw from that which may also have implications on the EU level because there will be discussions about whether Poland should get the EU funds or not, how much is enough, and so on.

But I think it's likely that the new president will be from the side which is ruling now and then it will be the moment where all the bills could be passed and really the moment when the rule of law could be restored.

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Editor: Mirjam Mäekivi, Helen Wright

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