Sadurski, Wojciech

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The Law to Take Out TuskWojciech Sadurski 2023-05-31T13:04:33“The U.S. Government is concerned by the Polish government’s passageof new legislation that could be misused to interfere with Poland’s free andfair elections. We share the concerns expressed by many observers thatthis law to create a commission to investigate Russian influence could beused to block the candidacy of opposition politicians without due process.We call on the government of Poland to ensure this law does not preemptvoters’ ability to vote for candidate of their choice and that it not be invokedor abused in ways that could affect the perceived legitimacy of elections”.1)The language of US diplomats is, well, diplomatic. But make no mistake: it hides adeep irritation in Washington, accompanied by a similar anger in Brussels. Polandhas been a top ally of the United States in the geopolitical quandary caused byPutin’s aggression against Ukraine, and President Andrzej Duda – whose signingof the new law triggered the statement quoted – has so far been a privilegedinterlocutor of the Americans. Compared to Jaros#aw Kaczy#ski, the autocratic andsuspicious of foreigners leader of the ruling PiS party, and the mendacious PrimeMinister Mateusz Morawiecki, Duda seemed a “moderate”. Especially now, half-way through his second term of office and with no opportunity for reelection, Dudahas been seen as the least distasteful of Polish nationalist-populist leaders. Notanymore.The law signed by Duda sets up a new body: a commission to track Russianinfluence on Polish public officials and other public figures which may haveresulted in the undermining of Polish security. A determination that a given person,investigated by the commission, has acted against Polish interests under suchimproper influence may result in various “remedial measures”, the most importantof which is a ban on performing public functions (related to the expenditure ofpublic funds) for 10 years; hence the de-facto “political death” of a person. Even inthe absence of such a penalty, the very fact of public hearings and of suspicionsthat a politician or another public figure had acted in Russian interests is deeplystigmatizing, especially these days, after the Russian invasion.On 29 May, President Duda has peremptorily signed this law into force, meetingKaczy#ski’s timetable under which the new institution should start waiting straightaway, to be able to affect the developing electoral campaign.The unprecedentedspeed is a symptom of the unprecedented weight that the ruling party attachesto this initiative – and President Duda was more than happy to oblige, also usingthis opportunity to attack critics of the new law. Bizarrely, the President announcedthat he would also initiate ex-post scrutiny of the new law before the ConstitutionalTribunal. Quite apart from the fact that the institution now calling itself “ConstitutionalTribunal” is but a façade, simultaneously signing the law and foreshadowing ex-postscrutiny by the same official reveals a certain constitutional schizophrenia (even- 1 -if, formally speaking, allowed). Launching constitutional scrutiny must be basedon reasonable doubts as to constitutionality of the law, but the President, who hasreasonable doubt about constitutionality, as the guardian of the Constitution2) is notallowed to sign it.Indeed, this monster of a law has so many defects, pathological features and outrightconflicts with the rule of law, even at its very basis, that it is hard to know where tostart.ProcedureThe law was processed and fast-tracked in an extraordinary procedure madepossible by presenting it as a private member’s bill while obviously it was agovernment-prepared act. This trick has been used frequently by authoritarianpopulists around the world, and in particular in Poland.3), as it allows sidesteppingvarious mandatory road-bumps on a bill’s road to its final adoption. No audits, expertopinions etc are called for, salthough the bill had to go through Senate scrutiny, withvarious expert opinions produced at that stage, and with a devastating rejection ofthe proposal albeit no substantive effect on the final text.The law entered into force immediately, without any vacatio legis which, as a defaultrule, in Poland is 14 days. This frantic pace on an issue which, on the face of it, doesnot have any special urgency, suggests suspect motivations of its proponents.The composition of the new bodyThe “Commission on Russian influences on internal security of Poland in 2007-2022”will consist of 9 members, elected by the Sejm with a simple majority, thusvirtually assuring that the ruling party will have a majority, and considering that theparliamentary minority intends to boycott this Kangaroo Court (and rightly so!), it willhave all its members. The Chair of the Commission will be appointed by the PrimeMinister whose office will also provide full administrative support to the Commission.So it will be a thoroughly politicised body, clearly dependant on the executive branch,and accountable to the Prime Minister.ImmunityThe statute peremptorily immunized all members of the Commission against anyliability for any conduct related to the Commission. This means that, whateverthey say and do in connection with the Commission’s work – its members will notbe liable for any misconduct, for instance defamation. They will enjoy a degree ofimpunity that no judge, no public official, no one, can ever dream of. In fact, theyoperate in a law-free zone, which obviously contradicts the rule-of-law principle thatall public officials and institutions must act within legal constraints (Art. 7 of PolishConstitution).- 2 -Liable personsThe catalogue of persons who may be liable for conduct “to the detriment of Polishdomestic security” is long and vaguely articulated. It includes “public officials” asdefined by other Polish statutes, but also “other persons” whose actions significantlyimpact Polish internal security or harm Polish interests, for instance by influencingmass media, NGOs, trade unions, political parties etc.The list of Russian “influencers” is also extremely broad. It includes “representativesof public authorities of Russia”, but also “persons known” (by whom?) as “closecollaborators” of those representatives, or “persons connected personally,administratively or financially” with such persons, etc. If you have ever talkedto a Russian who knows a Russian public official, you may be called before theCommission.Take yours truly: probably most of the Russian academics whom I had met overthe years know some high official or another, and at the same time I belong to acategory of “other persons” because I have been trying, for years, to influence Polishmedia; whether it harmed Polish national interests remains to be determined by theCommission.The act in questionThe central concept of “influence” is never defined (despite a long list of otherstatutory definitions in Art. 2 of the act). It may be anything, ranging probably fromacting under blackmail or under instructions, for money, to being just a sympathetichearer of your Russian interlocutor’s point of view.The official title of the act is misleading if not straight deceitful: it speaks of Russianinfluence upon the internal security of Polish Republic. But throughout the text of theact, “internal security” is used interchangeably with harming the interests of Poland(e.g. Art. 4(2) and 5(2) of the Act). Arguably, these are not synonyms: the latter ismuch broader that the former. This ambiguity either results from sloppy draftingor is deliberate: either way, it creates additional scope for arbitrary actions by theCommission.The nature of the CommissionFunctionally, the Commission is a court. It conducts hearings, acquaints itselfwith evidence, metes out punishments, including removal of an important civiland political right (eligibility for public functions). It imposes penalties of a criminalcharacter; for instance, the sanction of a temporary ban on performing publicfunctions already figures in the Polish Criminal Code (Article 39). Calling penalmeasures “remedial measures”, as the Act does, does not render them non-penal.And yet it is not a court, by its attributes. It is not independent, its members do notneed to be lawyers and undergo judicial training. It is a court-like institution but- 3 -placed firmly in the administrative structure of the state, right at its very top. And itis not a parliamentary commission: if it were, it would have to be discontinued atthe end of the current parliamentary term, which is only a few months away. It isan extraordinary, hybrid body, performing actions of a criminal court without anyguarantees for the “accused”.Guarantees for the “defendants”There are none. The Commission will have a right to mete out harsh penalties foractions which were not necessarily prohibited at the time of their commission, thusexpressly contradicting the principle nulla poena sine lege. It may find some actionspunishable ex post, therefore offending against the principle of non-retrospectivity.“Defendants” cannot refuse to testify or to provide evidence demanded by theCommission, hence offending the privilege against self-incrimination.There is no presumption of innocence: the Act does not explain what exactly shouldbe demonstrated in order to determine that a “defendant” acted to the detrimentof Poland. No standards of liability are specified: Should there be intention, orrecklessness, or negligence, or is it simply a strict liability standard?The Commission will have full competence of unlimited search and seizure, withno judicial or oversight. The “defendants” have no right of defence: There are noprovisions that they can be accompanied by their lawyers, or that their lawyersmay speak on their behalf. “Trials” are public, and lifting of publicness is fully atthe discretion of the Commission. So is the presence or the absence of media atthe hearings. In contrast, deliberations of the Commission (other than hearings)are secret. The only privilege against testifying is that of a priest concerning thecontents of the confession: other privileges: lawyers’, doctors’, journalistic privilege ofconfidential sources etc are all annulled.Judicial oversightThere is none. There is no right of appeal (as required by the Polish Constitutionin Article 78) or a pathway to judicial review of the decisions. The only avenue isa standard review by an administrative court, but such review, under Polish law,is allowable only on formal grounds: the administrative court will not review theCommission’s determination on its merits, with scrutiny of the evidence etc. Also,an appeal to an administrative court does not automatically result in the suspensionof an administrative decision under appeal but rather such suspension is in thediscretion of the administrative court. Administrative court procedures take years.So for all practical purposes, decisions of the Commission are final, instantlyenforceable, and not reviewable.- 4 -Temporal rangeThe Commission will investigate cases of Russian influence from 2007 until 2022.Why this particular range? No reasons have been given, but it just so happens that2007 was the first year of the liberal-democratic coalition of Civic Platform and thePeasant Party, after “the first PiS” rule of 2005-2007 ended. The final date of theperiod under scrutiny is also arbitrary: Has Russia finished trying to influence Polandon 1 January 2023?Autocratic legalismThis law fully meets the criteria of “autocratic legalism”, described famously by Kim-Lane Scheppele.4) There is nothing subtle or sophisticated about these legalistictricks; indeed, it is striking how vulgar and simplistic they are. And come to think ofit, if after more than 7 years in power, with PiS having unlimited control over all thesecret services, counter-intelligence and law enforcement agencies, all enjoyingimmense resources and competences, none of these state institutions turned outeffective enough to detect and neutralize “Russian influence”, what does it say aboutthe state PiS has built, over two parliamentary and two presidential terms of office?Why this law, and why now? The answer is a name: Donald Tusk.The former Polish Prime Minister, founder and leader of the now leading centrist-liberal party (Civic Platform), and a former President of the European Council(2014-2019), Donald Tusk is by a long shot the most successful and experiencedPolish politician on the non-PiS side of politics. If there is anyone who can play, inPoland, a role of Lula winning against Bolsonaro, it is him.Which is not to say that he is universally admired. In fact, his so-called negativeelectorate is vast: just over 50% Poles say they do not trust him. This is largely dueto the relentless propaganda of hate and falsehoods run against him by state-ownedmedia, and in particular, the broadcaster TVP.5) Tusk is daily depicted as a Russianand/or German agent, anti-patriotic, non-Polish, corrupt; and news stories on TVPabout Tusk often use subliminal video shots depicting Tusk after Stalin or Hitler.Still, Tusk’s public meetings are fantastically popular, and the opinion polls predicta lead of roughly 10 percent for the democratic opposition parties over PiS and itsjunior coalition partners.Kaczy#ski and his party cannot afford to lose. A system of immense systemicpolitical corruption and state clientelism has produced a large category of peoplefor whom a transfer of power would be a catastrophe, and not just in terms ofloss of wealth and lucrative positions, but often of criminal liability. In this sense,for the ruling coalition and its clients, these elections will have an existential, notmerely a programmatic weight. In turn, for the opposition a loss will mean a heavyconsolidation of populist authoritarianism, just as in Hungary.- 5 -The cliché in Poland that these elections will be as important as those in 1989 ringstrue. It is clear that Kaczy#ski wants to remove Tusk (and any of his collaborators,for that matter) from electoral competition. In fact, PiS does not hide that Tuskfigures highly in the legislative motives for the new law. They made it express in theofficial rationale provided for the Act during the legislative proceedings.But even if, for whatever reasons, Kaczy#ski decides not to use the “nuclear option”of having the Commission declare Tusk ineligible in the elections, a weaker use ofthe Commission will be extremely advantageous for PiS, too. Just parading variousCivic Platform politicians (including Tusk) before the Commission will give PiS andits powerful media tremendous propaganda material. Even without any sanctionresulting from those show trials, associating Tusk and his collaborators with thewords “Russian influence” and “harming security” and “damaging national interests,repeated hundreds and thousands of times, will create a great political dividend forPiS. Their opponents will enter public imagery as “Russian agents”.In other words, Kaczy#ski wants to do to Tusk something functionally equivalent towhat Putin did to Alexei Navalny in the “elections” of 2018. Though, admittedly, withgentler methods. References• Press Statement, US Department of State, 29 May 2023.• His prime constitutional role, see Art. 126 of Polish Constitution.• See my Poland’s Constitutional Breakdown, OUP 2019, pp. 133-34.• Kim Lane Scheppele, “Autocratic Legalism”, The University of Chicago LawReview 85 (2018): 545-583 at 556.• Disclaimer: civil defamation proceeding by TVP against me are still pending; acriminal libel suit against me by TVP has been dismissed on appeal, and had itsfinale, to my advantage, before the Supreme Court- 6 -

The Law to Take Out Tusk

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The Law to Take Out Tusk

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