Is Poland a banana republic yet?
No, it's a potato republic, maybe a cabbage one. Banana's don't grow there.
Poland is once again the focus of attention from around the world, putting on an impressive show of daring political maneuvers. But this time, it's not so much humorous as it is dangerous.
This show features President Andrzej Duda and Donald Tusk's ever-theatrical government. The current ongoing drama involves Szymon Holownia, the speaker of the Polish Sejm, the dominant chamber of the Polish parliament, and Adam Bodnar, the minister of justice. This show also stars two Law and Justice politicians, Mariusz Kamiński and Maciej Wąsik, who were in charge of overseeing and managing the police and secret services when the PiS was in power in Poland. Not only recently (2015-2023), but also during the first term of this party (2005-2007).
In recent weeks, these leading figures in Polish politics have been embroiled in a dramatic standoff. Tusk's faction, donning the mantle of rule-of-law crusaders, vehemently asserts that they are rectifying the legal missteps purportedly committed during Duda's eight-year tenure, backed by his associates from Law and Justice (PiS). Contrarily, Duda and his cohort staunchly refute these accusations, portraying themselves as the true bastions of legal integrity during their governance. This unfolding drama is more than just a polarizing saga; it’s a veritable fracture in the nation's legal and constitutional framework.
It's as if we've traveled back in time to 18th-century Poland, where law was more of an aristocratic toy, subject to whimsical 'interpretations' amid rampant power struggles and corruption1. The current situation is eerily similar to that of the past, with politicians from both parties exploiting legal loopholes for personal gain while the rule of law (however one understands it) takes a back seat. Concern for the king or state institutions was non-existent in those days, as aristocratic factions engaged in relentless power plays, leading to Poland's partition and erasure from the world map for more than a century.
Fast-forward to the present. Today we find ourselves in a situation where Poland's High Court is divided, with its two chambers at loggerheads and delivering starkly contradictory rulings within the span of 48 hours. But, in order to fully comprehend this perplexing drama, we must go back to 2015. Everything revolves around a contentious pardon issued by then-newly-elected President Andrzej Duda, a watershed moment that set the stage for the current political circus.
So, the origins of this crisis can be traced back to 2015, when President Andrzej Duda invoked a constitutional pardon clause. To say the least, this clause is as clear in the Constitution and the Penal Code as a foggy day in Warsaw. Duda, then newly elected president, raised eyebrows and made headlines when he granted a pre-verdict pardon to his political allies, Mariusz Kamiński and Maciej Wąsik. In fact, this was more of an abolitionist act than a pardon.
However, the entire legal enigma involving Kamiński and Wąsik originates from Poland's politically charged period (2005–2007), which was led by Jarosław Kaczyński and the Law and Justice party. Law and Justice initially formed a coalition with Self-Defense, a vibrant, populist peasant party led by the charismatic Andrzej Lepper. When this arrangement became inconvenient for Kaczynski, he began to consider removing Lepper from it, but in such a way that Lepper's base (which was quite large) remained with the PiS government.
Thus the so-called Land Affair, a high-stakes ruse devised to portray Lepper as a deeply corrupt individual who could not be tolerated in the administration of Law and Justice. A plan was put into action by Kaminski and Wasik, who worked with the Central Anti-Corruption Bureau (CBA) at the time, that involved falsifying documents about land ownership, which according to Polish law, secret services or police had no right to do. They are only permitted to create documents that aid in concealing their identity (passports, driving licenses, ID cards, and so on), not notary acts, ownership certificates, and so on. Another major violation of the law was that it is prohibited for any secret police to create a criminal situation; in other words, you can catch someone bribing another person, but you cannot talk someone into doing it as an undercover agent; you cannot prompt someone to break the law in order for you to apprehend or arrest them. Engaging in such provocations by law enforcement is strictly prohibited in Poland; as a result, Kamiński and Wąsik faced legal consequences in 2009 when they were brought before the court. Their actions violated Polish law, but the details of this affair could fill a novel.
Before we go any further, let me state unequivocally that I am not a fan of Messrs. Kamiński and Wąsik. My past articles and podcasts leave no room for ambiguity regarding my distaste for their significant contribution to the decline of Polish public life from 2015 to 2023. This includes intimidating journalists who were critical of Law and Justice, Kaczyński, and the previous government. My stance on them is unwavering, as I am convinced of their involvement in heinous acts during the pandemic and against journalists. They should undoubtedly face consequences for their actions. However, for the purposes of this discussion, let us temporarily set aside personal feelings and zoom out to the bigger picture, focusing on the events rather than my personal feelings about these two and their time with the Law and Justice Party.
Another disclaimer: I'm not a lawyer, but I've done my research. I've managed to grasp the crux of both camps' arguments on both sides of the barricade by diving into a sea of commentaries and expert opinions. Rather than a straight path, this is a maze.
The drama heightened when Duda's pardon was quickly challenged in the Supreme Court. It's worth noting that this court was not exactly a fan of the ruling Law and Justice party or President Duda at the time. What is the point of contention? The then-ruling camp’s alleged mission is to turn the judiciary into a puppet show, with the government pulling the strings of prosecutors and judges. It's a somewhat valid accusation, but let’s save that rabbit hole for another day.
The Constitutional Court then entered the fray, not once, not twice, but three times over this shambles. Their first act was clear: the Supreme Court was out of its depth, interfering with presidential prerogatives, a no-go zone with constitutional ramifications. The Constitutional Court's decree? The Supreme Court should step back. And with that, the Supreme Court's decision was effectively overturned.
But wait, there’s more! The Constitutional Court doubled down, issuing two more verdicts, essentially giving a thumbs-up to the president’s controversial clemency antics. This did not sit well with many judges, but the court cases against Kamiński and Wąsik were halted as a result of the pardon, however strangely issued.
The plot, nevertheless, took a turn last October with the dethronement of Law and Justice. With this shift in power, a district court in Warsaw, where our protagonists, Kamiński and Wąsik, were being tried, reopened. Fast forward to December 2023, and voilà: both were found guilty and handed prison sentences.
Later, the speaker of Poland's major parliamentary chamber, the Sejm, Szymon Hołownia, decided that now that Kaczyński is no longer in power, the Constitutional Tribunal's authority, as well as the authority of all of the judges and justice system personnel that Hołownia, Tusk, and the entire anti-PiS camp don't like and don't recognize, can be dismissed. Especially since a local court judge in one of Warsaw's districts decided it's past time to dismiss even the president's right to pardon due to changes in the political climate.
The recent verdict called for Kamiński and Wąsik to lose their parliamentary seats, effectively ending their official status as Republic of Poland deputies. However, there is a twist: they have chosen to appeal to the Supreme Court Szymon Hołownia's decision to cancel their parliamentary seats. Furthermore, Hołownia, a key figure in this saga, has rushed to the Supreme Court to submit documents as well. Obviously, he realized at some point that the rush to remove Kamiński and Wąsik from their parliamentary seats is legally dubious. But, knowing that the Supreme Court was divided, with some judges pro-PiS and others anti-PiS, he thought he could use this division to craft a verdict that would ‘cover’ his actions against Kamiński and Wąsik. Officially, it was all done to reaffirm the legality of the Warsaw district court's ruling and to ensure that his actions in deposing Kaminski and Wsik from their parliamentary seats were legal.
Another legal and political nuance needs to be explained briefly here. This perplexing situation arises against the backdrop of Poland's long-running political feud centered on the Supreme Court, which Hołownia believed he could exploit.
On one side, we have the new parliamentary majority, which was previously the opposition, claiming loudly that the judges appointed to the Supreme Court (and any other court) during the reign of Law and Justice were illegal. The anti-PiS camp refers to them as "neo-judges," and it is widely assumed that they do not have the right to serve as judges at all, let alone on the Supreme Court.
This viewpoint is shared by a significant number of Supreme Court justices, who have received some support on this issue from the European Union's Court of Justice. It is critical to recognize that there are political factions and groups of judges, prosecutors, attorneys, legal professionals, politicians, and journalists in Poland who believe that a significant number of judges (well over 3,000) appointed during the Law and Justice party's tenure, particularly to Supreme Court positions, lack the legitimacy to pass verdicts, findings, rulings — in fact, any kind of decision. As a result, they refuse to acknowledge their authority and resort to a boycott. Until recently, it didn't matter, because the Ministry of Justice, led by Zbigniew Ziobro, a Kaczynski acolyte, was able to contain the rebellion of a large portion of the personnel in the legal justice system. However, the milk has now spilled.
On the other end of the political spectrum, the Law and Justice Party is adamant that the allegations are false. They assert that these judges were duly elected and have the power to rule. They claim that politicians in the current parliamentary majority are attempting to dictate who can and cannot preside over legal matters, undermining judicial independence. It's difficult to dismiss the party's criticism entirely because what's going on is an unmistakable violation of the fundamental principle of the three-branch separation of powers: legislative, executive, and judicial. However, the actual status of the so-called "neo-judges" can be legitimately questioned on the basis of what the anti-PiS camp claims is a Law and Justice assault on the National Judiciary Council (KRS) in 2016. There is no space here to explain yet another saga of destroying Poland's legal architecture; suffice it to say that it is widely claimed that the members of the KRS were wrongfully appointed seven years ago. This has been a major source of contention among lawyers, EU courts, the Polish Supreme Court, the Constitutional Tribunal, and associations organizing judges in Poland (which themselves have questionable legal standing because judges are not allowed to organize under Polish law). There is no clear answer to the legality of KRS's current composition. Of course, the claims of both camps are diametrically opposed.
Furthermore, both sides of Poland's political divide bear responsibility for various violations. However, it must be stated that the current situation is a flagrant violation of not only the fundamental principle of tripartite division of powers, but also of a slew of other conventions that have long served as safeguards for the country's constitutional order.
The nation is genuinely at a crossroads, facing a crisis that could bring down the entire legal and institutional order. But first, let us return to Hołownia and the parliamentary seats of Kamiński and Wąsik. In an unexpected turn of events, Poland's Sejm speaker threw a wrench in the works. Following the recent verdict, Mariusz Kamiński and Maciej Wąsik appeared to be on the verge of losing their parliamentary seats, effectively removing them from their roles as Republic of Poland deputies. If they are to be recognized as convicted criminals, this is what should happen.
But hold on, there's more! In a plot twist worthy of a prime-time drama, they are appealing to the Supreme Court the decision to revoke their parliamentary seats.
Meanwhile, Hołownia, as explained earlier, is not standing idle. He is rushing documents to the Supreme Court as well. And now, brace yourself for the Supreme Court's extraordinary twists and turns!
The scene begins with the Supreme Court's Extraordinary and Public Review Chamber, which is staffed by the infamous "neo-judges." The ruling majority regards this chamber as a fantastical creation, akin to a unicorn parade. They practically deny its existence. And who do you think Kaminski and Wasik will speak to about their vanishing parliamentary seats? The Chamber of Extraordinary Control and Public Affairs, you guessed it. They should have submitted the appeal through Hołownia's office because he is the Sejm's speaker, but they instead went straight to the Supreme Court, arguing that Hołownia was breaking the law and would be sabotaging their appeals, so they had no choice but to bend the procedure and go directly to the Supreme Court's document intake department.
And while one could argue that this is a case of procedural negligence, it was only a small step to get the entire appeal to the institution that was supposed to review it. Now enter Szymon Hołownia with his own Supreme Court plot twist, which is far worse and clearly illegal. Being a member of the "neo-judge"-skeptical political brigade, he is fully aware that his application, if submitted through proper channels, would land straight in the Extraordinary Control Chamber, as this is the Supreme Court's only structure to deal with cases involving the Penal Code. But he doesn't recognize the judges, and he couldn't care less about their decisions. So, after a casual conversation with his buddy, one Zakroczymski, a low-level Supreme Court staffer, Hołownia pulls some strings to direct his application to the Supreme Court's Labor and Social Insurance Chamber rather than submitting the documents the proper way. Why? Zakroczymski is friends with the head of the Labor Chamber, Judge Prusinowski, who is not on the PiS's Christmas card list. What is Holownia's reasoning? This chamber is said to be the 'legit' one.
But hold on, there's more! At a press conference, Hołownia admitted with startling candor that he specifically requested that only the "indisputable judges" handle his case. Talk about a politician interfering in the legal system!
It's a scene from an absurd political parody, with a leader from the camp that has been railing against judicial manipulation for eight years now engaging in a form of courtroom puppetry himself. But all in the name of restoring Poland's rule of law and democracy, and so on. Meanwhile, it was like watching a cage match inside the Supreme Court.
The two chambers are fiercely arguing over who has the last word, tearing through case files and exchanging spectacular shoutouts. What was the end result? They end up with two completely opposing verdicts.
Next stage: former Polish Home Affairs Minister Mariusz Kamiński and his deputy, Maciej Wąsik, were arrested in a dramatic Tuesday twist last week. What is the setting? An encounter with President Andrzej Duda, who had invited Kamiński and Wąsik to the Presidential Palace for an official meeting. At one point, however, Duda was escorted out of the Presidential Palace as news broke that Belarus's Juan Guaido, Svetlana Thikhanovskaya, had arrived in Warsaw and was eager to meet with Duda.
And this was very tempting, because Duda's ultimate pleasure, like that of all PiS politicians, is pretending to be a strongman and the leader of a powerful state. The police took advantage of his absence to apprehend Wąsik and Kamiński, who were waiting for the president to return. Now, they find themselves behind bars.
And, we — the public, now find ourselves in the midst of a cloud of uncertainty surrounding two politicians: were they rightfully pardoned, rightfully convicted post-pardon, rightfully parliamentary candidates, rightfully seated as parliamentarians, rightfully ousted from those seats, rightfully arrested, and rightfully imprisoned?
In the midst of this legal whirlwind, Poland's Supreme Court is deeply divided. Two contradictory decisions, each supported by its own faction, have left us in a quagmire of legal ambiguity. Last Friday Kamiński and Wąsik also announced a hunger strike, to which the acting deputy justice minister responded, "Everyone has the right not to eat or drink." So Poland's legal saga continues, a story so entwined that it calls into question the very notions of justice and legality. New questions arise at every turn, threatening the stability and integrity of Poland's judicial system.
Poland's recent turmoil is a legal, political, and even philosophical maze. But it's mostly political with two factions of the establishment fighting over dominance. This is what it boils down to.
The legal system in Poland resembles a jigsaw puzzle with missing pieces, as is now abundantly clear. We have ambiguous laws and a constitution that is as illegible as a Rorschach inkblot. Legal opinions are frequently colored by political bias, party loyalty, or personal gain, with arguments conveniently sculpted to fit agendas rather than objective legal analysis. These legal ambiguities have become a playground for both sides. In a somewhat hesitant admission, Donald Tusk admitted that "a majority of legal experts believe" the President lacks the authority to abolish individual rights. While acknowledging the dominant viewpoint, this admission also indicates a plethora of dissenting viewpoints. However, this only scratches the surface of Poland's systemic chaos.
The ongoing battle between the Supreme Court and the Constitutional Court adds to the chaos. Poland's future as a democratic republic hangs in the balance as we watch this slightly absurd spectacle unfold. The polarization is not limited to individuals or commentators; it is embedded in the institutions that support the Polish state system. And let’s not forget about the long-term consequences. Consider the pendulum swinging the other way, with the opposing camp prosecuting those who, in their opinion, have now broken the law.
And now let’s circle back to the beginning of the article where I mentioned Adam Bodnar. So, the spotlight has unceremoniously fallen on Adam Bodnar, the Minister of Justice and Attorney General, in the midst of a rather tumultuous period for Poland's legal order. Bodnar has a peculiar interpretation of legal protocols, as evidenced by his daring decision to send a special letter to all judges in the country last December. In this letter, he 'helpfully' explained his unique understanding of the legal hierarchy, implying that judges should automatically agree with him.
The new and much more troubling drama, however, began with Bodnar's recent visit to the National Prosecutor's office. Bodnar 'discovered,' much to everyone's surprise, that the appointment of National Prosecutor Dariusz Barski several years ago was not only flawed but illegal. Bodnar, ever the problem solver, decided it was time for a change and attempted to "replace," as the minister put it, Barski with Jacek Bilewicz, who happens to be friendly with the current parliamentary majority.
As a result, the Ministry of Justice has jumped into the fray, declaring Barski's reinstatement in 2022 to be legally baseless. The National Prosecutor's Office, on the other hand, was not delighted. They insisted on Barski's continued appointment as National Prosecutor, dismissing Bodnar's letter as a charming but ultimately ineffective piece of personal opinion.
"The function of the National Prosecutor is performed by Dariusz Barski; the letter of Attorney General Adam Bodnar, in which he indicates that in his opinion the National Prosecutor remains a retired prosecutor, has no legal effect," the National Prosecutor's Office said.
"Both the National Prosecutor and the other Deputy Prosecutors General strongly oppose attempts to circumvent statutory regulations on the dismissal of the National Prosecutor, which require the consent of the President of the Republic to be effective," the National Prosecutor's Office said in a statement released to Polish media on Friday evening.
The plot thickens with Bodnar's statement that, during a meeting with Barski, he presented him with a document stating that the previous Attorney General, Zbigniew Ziobra's, reinstatement of Barski in 2022 was illegal. Without missing a beat, the Ministry named prosecutor Jacek Bilewicz as acting National Prosecutor.
The National Prosecutor's Office, backed by the President, refuses to recognize Bodnar's decision, insisting that Barski remains the man of the hour. They made it clear that they view Bodnar's letter as a whimsical attempt to sidestep the law, lacking any real foundation.
So we have yet another legal and constitutional stumbling block.
At the end of this story, it is worth noting that Adam Bodnar will most likely go down in the history of the Polish judiciary and general political history for eternity, because in a moment of sincerity, he uttered an immortal phrase that will most likely be the most important characteristic of Poland's current authorities. When asked about the aggressive and violent takeover of state institutions and offices in an interview with a journalist from Radio ZET, a popular radio station in Poland, he dropped the following gem: "we are restoring the rule of law and looking for some legal basis for this." Who needs more?
Last but not least, the question arises: what is Donald Tusk's plan in this political and legal quagmire? Is there any? Or perhaps it all began with a few spectacular acts of private vendetta that spiraled out of control? Or is it a bold move to exacerbate social and political polarization, assuming that Law and Justice will simply fold and disintegrate in such emotionally and politically charged circumstances? Or should we ask, as Poles frequently do when confronted with such absurd political situations, whether it is simply stupidity or sabotage at work?
Before the partitioning of Poland in the 18th century, corruption was prevalent in the country, and several factors contributed to it. Some of the main causes of corruption in Poland during this period include:
1. **Political and economic instability**: The Polish-Lithuanian Commonwealth was under constant threat from neighboring powers, such as Russia, Prussia, and Austria, which led to internal political and economic bickering. This instability created an environment conducive to corruption and the abuse of power.
2. **Influence of foreign diplomats**: Foreign diplomats, using bribery or persuasion, routinely caused the dissolution of the Polish parliament and the appointment of kings. This further contributed to the corruption and instability in the country.
3. **Ambiguity of the monarchy and central administration**: In the 18th century, the powers of the monarchy and the central administration became mostly formal, and kings were denied the opportunity to provide for elementary requirements of defense and finance. This ambiguity allowed for the aristocratic clans to make treaties directly with foreign sovereigns and engage in corrupt practices.
4. **Corruption in the treasury's office**: The leaseholders were formally exempted from their obligations, which may have been the result of corruption or negligence on the part of the treasurer's office. This exemption could have led to further corruption and mismanagement in the fiscal system.
5. **Political inequality and corruption**: The extent to which corruption and inequality were prevalent in Polish society was significant, especially in the latter half of the 18th century. The partitioning of Poland in the 18th century led to the country's decline as a nation, and the corruption that existed during this period contributed to this decline.