Donald Tusk is trying to restore the rule of law in Poland
Wchicken populist parties gain power they often try to capture institutions. They appoint their supporters to run the courts, bureaucracy, state-owned companies and the public media. The aim is partly to make it easier to go through decisions and win more elections. But he also wants to make sure that if the populists lose power, loyalists who live within the state can follow their agenda. With populism and state capture on the rise, figuring out how to control it is becoming more important. An early test case, Poland, shows how difficult it is to get it right.
Poland’s populist-nationalist government, run by Law and Justice (PiS). Over the years PiS packed the courts, set aside the constitution and hired cronies for government companies and broadcasters. Mr Tusk has a hell of a job to undo this damage. It needs to restore independence and sidelines PiS apparatchiks without violating the very rule of law it seeks to protect.
In some cases the new government is on the right side of the line. The new justice minister, Adam Bodnar, is also Poland’s chief prosecutor, and he wants to make that position independent. In addition, he wants to take control of the body that appoints judges away from parliament and give it back to the judges themselves. Like it or not, both moves increase judicial independence and reduce the power of government. Mr. Bodnar also fired the national prosecutor and then ignored an order to recall him from his PiS– controlled constitutional court. It depended on technology: an aggressive move but one that was probably within the law. Such a legitimate, but byzantine, struggle over procedures and roles could play out for years to come.
In terms of the media, however, the new government has gone too far. PiS have turned the public radio and television broadcasters into propaganda megaphones, and created a new (and possibly unconstitutional) media council to control them. It is essential to restore the impartiality of the broadcasters. To that end, Mr. Tusk’s government has fired senior employees of media companies using commercial law. OK: the state is the owner of these industries.
However, the government has also ignored parts of the constitution that deal with the independence of the state media. After the first illegal attempt to reverse reform, the government is deploying state media companies to restructure them, but has not explained their plans or opened them up for discussion. Broadcast news on public radio and TV more neutral than before, but the government has not made a clear enough commitment that they will never have political influence.
Plenty of other countries, including neighboring Hungary, could face Poland’s dilemma in the coming years. When considering whether political detoxification efforts are legitimate, improper intent is not enough. Instead a two-part test should apply. First, any change must be within the law. Second, it should have the effect of dispersing power, not concentrating it. Mr. Bodnar’s actions pass both tests; media cleaning receives questionable ratings on both. As an additional safeguard, Mr Tusk’s government should also welcome an audit from the European Union, which will help confirm that its reforms are good.
The Polish struggle will take a long time. Many liberals see Andrzej Duda, the independent president of Poland, as a PiS a stooge who uses his veto powers to try to block reforms. Instead of trying to evade the law, Mr Tusk and his friends should urge voters to elect another president in next year’s elections. In restoring the rule of law over state institutions, liberal governments must respect the law themselves. Otherwise, even when they lose at the polls, the populists will have won. ■