From the outside, Poland may seem to be in turmoil, its democracy at risk of being derailed by a palace farce, a far-right fightback or both. Two fugitive politicians, who served as ministers in the recently ousted rightwing government, were arrested earlier this month after seeking refuge in the presidential palace. The president, Andrzej Duda, thought he could grant them asylum – but as it turned out, his personal security detachment was loyal not to him but to the new government, and facilitated the arrest warrant. The former ministers went to prison, but after a fortnight of standoff, the president this week granted them a pardon.
Why couldn’t he have done it sooner? Well, that’s a long story.
To understand this extraordinary episode, which even the prime minister, Donald Tusk, described as “unbelievable”, we first need to understand how the new and old political camps are using the rule of law as they tussle for control.
On one side is the new government, led by Tusk, the leader of the liberal-left coalition that emerged victorious in the parliamentary election last October. On the other side is the opposition, nationalist Law and Justice party (PiS), which ran the country for the previous eight years, and shaped its laws and institutions to fit its populist rightwing agenda.
The political transition was always going to be bumpy. Law and Justice’s leaders had to cede power to Tusk after failing to form a government, but they expected to hold on to some of it. After all, they still had an opposition loyalist in the presidency until mid-2025. They miscalculated, to put it mildly. Jarosław Kaczyński, the PiS leader, was also used to getting his way: despite a wafer-thin majority, he had governed Poland with an iron fist.
There were constitutional and judicial constraints. Poland’s highest courts resisted Kaczyński at times, but he found his way around them. The rulings of the constitutional tribunal become law only when published by the official government register. So if you control the government, you can simply refuse to publish the verdict and – presto! This simple trick allowed Kaczyński to eviscerate the high courts.
Presidential authority in Poland is mostly ceremonial. The office is referred to as “the guardian of the chandelier”, due to the namesake element of decor in the grand ballroom of the presidential palace. The Polish president has the constitutional power of veto, but Duda was not a problem for PiS. He rarely exercised his powers.
The constitution also gives the president the right to pardon sentenced offenders. Duda is now trying to use this prerogative to provide immunity to rightwing politicians and pundits who find themselves on the wrong side of history.
The two PiS politicians, Mariusz Kamiński and Maciej Wąsik, were convicted of abuse of power in 2015, and last month sentenced to two-year jail terms. They refused to comply on the grounds that Duda had already issued them with a pre-emptive presidential pardon. But the president is not a king with the royal prerogative of pardoning a prisoner in advance of their sentencing.
They claimed, ludicrously, to be Poland’s newest political prisoners. In fact, the story of their conviction dates back to 2007, when Kaczyński needed the backing of the ultra-populist agrarian movement leader Andrzej Lepper to form a coalition. Kaczyński openly despised Lepper, but he had to give the former pig-farmer the ministry of agriculture and the title of deputy prime minister in exchange for votes. He frequently expressed his contempt, making it the most exotic coalition in Polish history (members of the same cabinet had a habit of insulting each other in public).
As tensions between Kaczyński and Lepper became apparently unreconcilable, Wąsik and Kamiński, officials in a newly formed anti-corruption agency at the time, concocted a plan involving a fake real-estate deal. The anti-corruption agency’s investigation led to what became known as the “land scandal” and the sacking of Lepper. But the two politicians were later charged with a range of offences, and in 2015 were found guilty of abusing their powers.
As long as PiS was in power, Wąsik and Kamiński were untouchable. The supreme court ruled in 2017 that Duda’s pardon was unconstitutional and not legally binding – but PiS simply ignored this verdict, like many others. Duda’s “pardon” kept them out of prison and allowed them to serve in government.
Even today, Duda is pretending his unlawful pardon never happened. He tried the farcical “palace hideout” scheme to protect the pair. When that failed, he tried to blow the whistle internationally, calling for the EU, Nato and even the World Economic Forum in Davos to liberate the “political prisoners in Poland” – eliciting nothing but raised eyebrows.
Duda and Kaczyński look like class bullies who have finally been punched back and just don’t know what to do. Tusk’s new coalition is meanwhile proving creative in finding loopholes in the legal straitjacket created for it by the previous regime. It can’t fire the management of Polish state radio and TV? It can put the stations in receivership and the interim administration can do as it pleases. The new prosecutor general cannot change his own deputy without presidential approval? He can nominate an “acting” deputy as a temporary caretaker.
As dubious as some of these workarounds may seem, they are legally binding until found otherwise by a court of law. The opposition is crying foul and claiming to be worried about the rule of law. But PiS used the same strategy extensively for eight years. Now it finds itself on the receiving end.
The new government is also picking its fights wisely. Wąsik and Kamiński were never popular with public opinion. Ditto the rightwing pundits in the state-owned media and PiS-appointed public prosecutors. When they are ousted from their well-paid jobs, the majority applauds it.
In a recent opinion poll, 56% of respondents claim to be satisfied by the recent actions of the new government, against 37% who are dissatisfied. So far nothing indicates this tendency will change before local elections in April.
As long as the opinion polls are in favour of his government, Tusk has little incentive to change course. The rightwing opposition can’t do much to stop him. The most it can do is to stage protests that may be loud and spectacular, but are futile nevertheless – just like the protests that the liberal-left opposition spent eight years staging. Our system is designed to ensure that it’s fairly easy to form a government and nearly impossible to topple it. For good or ill, Polish politics is decided by the ballot box.
Wojciech Orliński is a Polish journalist, writer and academic
