Transcript: The battle for the control of Poland’s institutions

This is an audio transcript of the Rachman Review podcast episode: ‘The battle for the control of Poland’s institutions’

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Ben Hall
Hello and welcome to the Rachman Review. I’m Ben Hall, Europe editor of the Financial Times, and I’m standing in this week for Gideon Rachman. This week’s podcast is about Poland and the extraordinary power struggle between the new government and the country’s conservative president. My guest is Andrzej Bobiński. He’s the managing director of analysts Polityka Insight and one of the sharpest political observers in Warsaw.

Donald Tusk is back as prime minister after elections in October, and he is determined to restore judicial independence and reverse the politicisation of public institutions after eight years of rule by the rightwing nationalist Law and Justice party, known by its Polish acronym PiS. But can Tusk reinstate the rule of law without breaking it first himself?

Jarosław Kaczyński in audio clip
(Speaking in Polish)

Ben Hall
That was Law and Justice leader Jarosław Kaczyński, speaking at a sit-in at Polish state television last month in protest at management changes introduced by the new government. He said there could be no democracy without strong anti-government media, and claimed that the new government was trying to prevent citizens from finding out about the lifestyle of Poland’s new elite. The new government says it wants to restore impartiality at the three outlets, which had become propaganda mouthpieces for Law and Justice. But the move has prompted a furious backlash by Law and Justice leaders and President Andrzej Duda has denounced it as unconstitutional.

Andrzej Duda in audio clip
(Speaking via interpreter) I can’t accept this as president and I oppose it, but I will deal with it in accordance with the law and all norms. I will direct the cases to the constitutional court, face the media, speak publicly and do everything I can in my capacity as president.

Ben Hall
Public media is just one of the many fights that have erupted in the month or so since Tusk, a former prime minister, returned to power. He and Duda are at loggerheads over the central bank, the national prosecutor’s office and the detention of two former Law and Justice ministers earlier convicted of abuse of office. Another fight looms over steps to strengthen judicial independence necessary to unlock billions of euros in EU funds. President Duda can veto legislation, forcing Tusk and his ministers to bend existing law and procedures to get their way. The battle threatens to pitch Poland into a full-blown constitutional crisis, the biggest test of the country’s democracy since the end of communism 35 years ago. So I began by asking Andrzej Bobiński how far the politicisation of Poland’s institutions had gone during the peace administration.

Andrzej Bobiński
Well, it definitely went very far. I mean, we observed something that I think is called state capture, and that went on for eight years, with various levels and degrees of harshness and intensity. But it is true the ruling party did install a number of minds, if you will, that are making life difficult for the new government and are making governing difficult for the new government.

Ben Hall
So his project of elite replacement, what some people would call a purge, will have to be quite extensive then.

Andrzej Bobiński
I’d venture an opinion that probably this is the biggest change of guard since 1989 in Poland. I mean, it feels as if pretty much everyone I know is getting a phone call and is being called up to go into government or the state-owned companies or state media. Also, because of the fact that PiS, the previous ruling party, did away with civil service so there’s a lot of civil servants who either just left their jobs or were fired. So now there is a dire need to find new people who will run things in government and in various other institutions of the state. So there is this feeling of a huge change that’s coming along. I don’t know if it’s healthy, and I don’t think that it’s necessarily very good for a country that basically needs to have some sort of continuity. But yeah, there is this feeling that basically, everything’s changing and a lot of new people are coming in and a lot of people are being fired.

Ben Hall
You don’t think it’s healthy because you think it’s too extensive, this process, or too sudden or what?

Andrzej Bobiński
I think it’s too expensive and too sudden, and I don’t really mean what’s happening now. I also mean what happened in 2015 and over the last eight years. Basically, I think that you need to have a civil service. You need to have a sort of continuity, and you need to have a longer-term perspective than basically moving from one election to another, when basically you exchange 50 per cent of people working in this or that ministry.

So we’re in this winner-takes-all system in which the executive wields quasi-supreme power over the other branches of government, and the political will overrides a rules-based order. And that’s all fine, because, as I said, a lot of people in the Democrats are looking towards Tusk and are looking for ways to recapture the state, which is very difficult.

But the question is what happens next? I mean, what happens if this government loses an election, be that in four years’ time, in eight years’ time? And what I’m worried about is that nobody is talking about this, nobody is thinking about this because for the moment, it’s a seize-the-day atmosphere where now we’re gonna take over and we’re gonna set things right.

Ben Hall
The purge started with the clearout of public television, TVP. Many would say that it had become a brazen propaganda tool for Law and Justice, but they would contend that it was an essential alternative voice in the media landscape to the liberal anti-government media, as it then was. Is there any legitimacy to that argument?

Andrzej Bobiński
I think pretty much both these views stand. I mean, both are true. On the one hand, this was an unprecedented propaganda machine that was set in place by Law and Justice, and we’d never seen anything like this, at least in my lifetime. And on the other hand, the media landscape is uneven, and basically most liberal media are not fans of Law and Justice. And we’re very critical of Jarosław Kaczyński and his government in 2005, 2007 and then in 2015 as well.

The question is, why didn’t the right side of the political spectrum build a media system? Because it had all the means and tools necessary to build a number of TV stations or newspapers or internet portals, because the media outlets that were supporting peace were being funded heavily by state-owned companies, were being helped along by the government, and there’s nothing left of that. So on the one hand, it is true that the playing field wasn’t level. On the other hand, I don’t think that the way to go about things is to take over state-owned media and in that way to restore pluralism.

Ben Hall
Yeah. I mean, some would say that the Tusk government went in very hard in its sort of media clearout. I think it was six days after Tusk was installed in office, and it did it with fairly brutal means, essentially pushing the broadcaster into liquidation and then using that as a way of clearing out the management. Do you think Tusk perhaps went in too hard? I mean, this does feel a bit like a declaration of war on his opponents and therefore, perhaps not surprising that you have the very strong rearguard action by Law and Justice and its supporters.

Andrzej Bobiński
I think he went in strong. I don’t know if he went in too hard. I don’t know what the alternatives were. There was this feeling that state media needed to change, also because it was attacking the government very strongly. And there was this feeling that this could not go on for long. It was quite obvious that both sides were super confrontational and at some point, something had to break. So in that sense, I feel that this government felt that it had to do something.

Also, I think most of the voters are voting for the parties that now form the government. For them, this is one of the reasons why they went out and voted against PiS. I mean, this propaganda machine was probably the strongest narrative around which the then-opposition was building its political platform.

I’m not a lawyer, and I understand there were a number of legal scenarios that were discussed. And finally, the one that Bartłomiej Sienkiewicz, the minister of culture, decided on feels like it was pretty confrontational. The way they did it was for this to be a show of strength, because this government didn’t really have the right cards, the right tools to make things right. They knew they had to do something, so they decided on an argument of strength. And this is one of the rules that organises our political culture. It’s about efficiency and it’s about strength.

I’m not a big fan of that, but at the end of the day, this is what I think people like. This is what people are looking for on both sides of the divide. And this is what Donald Tusk and Bartłomiej Sienkiewicz went for. They went for a show of force. They went into the television and they took over.

Ben Hall
Some would say that the confrontational approach, the sort of ends-justify-the-means approach, can only be ultimately justified if public broadcasting does become sustainably impartial. Do you have any confidence that the government has a project to do that? After all, the public broadcaster was pretty pro-Tusk before Law and Justice came to power and stacked it with its own loyalists.

Andrzej Bobiński
I don’t really think we’ve ever had an impartial state media. There’s always been talk about building a Polish BBC. Recently, some people are looking towards Scandinavia, towards, I don’t know, Norwegian media, but this has never happened and I think we’re still a long way away from a real, true, impartial state-owned media in this country because I think it’s a function of our sort of culture of political debate, and I don’t think we’re there yet.

Having said that, I think the comparison between what was over the last eight years and what state-owned media is like now is huge, and it’s very different. I mean, under PiS, the state-owned media, TVP, the Polish television, was raging. I mean, it was really very brutal, very vocal, and it was basically propaganda on steroids.

Whereas now, I think you’d have to start a huge debate whether what we can watch on state-owned television now is impartial if it isn’t. What we can safely say is that it’s pretty boring, and it definitely doesn’t play to the emotions of the voters the way that the previous programmes and broadcasters and journalists used to do. So there is a huge change and it’s a change for the better. But have we come to this place where we’re ready to have an impartial state-owned media? I don’t think so.

Ben Hall
The difficulty in overhauling public media and the veto power that President Duda has over the government does suggest that a much more fundamental reform, which is changes to the judicial appointment system to create more judicial independence, which in a way many in Brussels and elsewhere in the EU would see as the sort of mother of reforms for this government — that’s gonna be very hard to do. Can you just talk us through how the government will go about doing that? And will they once again have to break the law in order to protect the law?

Andrzej Bobiński
I think that’s possible. I think that the next battle will be over the constitutional tribunal, which basically rules on any laws that go through parliament, but recently has ruling on pretty much everything. And on the other hand, the constitutional tribunal has a number of judges who weren’t appointed the way they should have been. So this is an important battle.

But I think that basically over the next six months up to the European elections, we’re gonna see this fight over various institutions. And you said going outside the law, probably we’re in a grey area. We have lawyers who are doing what lawyers usually do, so looking for loopholes. And probably this is the way it’s gonna go.

But I feel that this fight is playing to a number of actors. For one, it’s working for Donald Tusk because it’s uniting his coalition partners, it’s uniting his party, and it’s keeping voters focused on the issues. And this is important because we have a local election in two months’ time, and then European elections in five months’ time.

On the other hand, this also plays into the hand of Jarosław Kaczyński because it helps him keep unity. I think for the moment it looks as if the Law and Justice party will have a very difficult time coming back to power. I think this will change over time, but for the moment they look pretty weak. Law and Justice needs this polarisation and needs these emotions to keep people together. And so that people then start wondering if maybe Jarosław Kaczyński is getting a bit old and maybe he’s losing it, and maybe he doesn’t really have the ideas or the energy to regain power.

I think the tragic character in this is Andrzej Duda because he doesn’t really have a stake in this. I mean, he’s not gonna run for re-election, but as a head of state, he’s in the middle of these fights, and it doesn’t really work out very well for him because he has nothing to win and a lot to lose.

Ben Hall
Duda could have played the role of arbiter in this fight, at least to a degree. But it really feels like he’s rolled up his sleeves and is willing to slug it out with Tusk. Is this because he has his own political ambitions, maybe to inherit the mantle from Kaczyński when that moment comes?

Andrzej Bobiński
I don’t think so. I think he wants to sit at the table the moment that Kaczyński retires, and there’s gonna be a powwow, and they’re gonna be choosing the next leader if that’s the way it’s gonna be. I think Andrzej Duda wants to sit at the head of the table, and I think he wants to be the moderator, but I don’t think he wants to take over. I don’t think he has the character to be the leader of the right in this country.

I think that Duda got himself manipulated into this fight for a number of reasons. One is basically he has his sympathies. The other thing is that he was quite obviously provoked by the other side, and he felt from the moment the elections were decided that both sides or even three sides were pretending to to play nice.

But for me, it was quite obvious that at some point we would reach a moment when this would be an all-out war between the presidential palace and the government because also, that’s the problem with our constitution and with the system. You need a lot of goodwill to have a president who plays alongside the government. Maybe had this been some wonderful, amazing politician who would be two storeys above the political fight that we’re in then maybe he could have played that role, but I don’t see any people like that in this country today. And I think that’s a rather utopian view that somebody like that could have come along and put things right. I mean, it’s just intense political fight here.

Ben Hall
And how bad do you think this war, as you put it, is going to get? American listeners might be looking for parallels with the situation in Washington on January the 6th. Could we see that kind of civil disorder in Poland come about if this stand-off really intensifies?

Andrzej Bobiński
No, I don’t think we’re gonna go that far. I think there could be a situation where the PiS MPs will be trying to storm the plenary room of the parliament, because there’s two former MPs who are now in jail who will most probably be pardoned by Andrzej Duda fairly soon. And PiS, the now opposition, believes that these former MPs are still MPs and they should have a right to vote and to sit in parliament. And it feels as if the last act of this political tragedy will be Maciej Wąsik and Mariusz Kamiński storming the plenary floor, and I don’t think they will be able to do it, but probably there is some drama still that we’re gonna see and we’re gonna get excited about, but I think it’s to have a ritual.

I don’t think this all-out war will end in a civil war, because I think that if you listen to Jarosław Kaczyński, he is trying, and this will sound counterintuitive, but it feels as if at moments he tries to de-escalate because he understands that if there won’t be a snap election, and I don’t think there will be a snap election, he still has four years in the opposition. So I think you need to choose your battles wisely. So I think both sides are escalating and I think they’re gonna be fighting, but they won’t allow things to slip out of control.

Ben Hall
And I wanted to ask you about the EU’s perspective, finally. Didier Reynders, the EU’s justice commissioner, was in Warsaw last week, I think, and he sounded somewhat indulgent really, very pleased that the new government was determined to re-establish the rule of law. Will that indulgence last forever or will there be lines that Brussels will expect the new government to obey?

Andrzej Bobiński
Probably there will be lines, and I don’t think that these lines will be obeyed. For the moment, I think a lot of people in Europe are looking at Donald Tusk with a mixture of hope and awe, maybe, because it feels as if he’s a liberal populist who is able to defeat the illiberal populists. He’s done something that nobody in Europe has done thus far. And also, it feels as if he’s defeating these populists with their own medicine.

So I think a lot of people are really rooting for Donald Tusk and for this government and are watching what’s happening, also thinking about the future and thinking about various situations in their countries. I’m not looking for parallels, but basically I think that this is a super-interesting moment for this country, and probably there are some lessons to be learnt elsewhere, for better or worse.

But looking at Brussels, I think this government will have a very good result in the European elections. So I think there’s a lot of people who are really hoping that Poland will be an important part of the set-up, especially looking at the state of French-German relations, which as far as I understand, aren’t perfect. I think a lot of people are looking to Poland. The commission is looking to Poland, von der Leyen is looking to Poland, the big political families in the European parliament are looking to Poland and this government. So there is this hope that Poland can put this right, get the funds and get on with things.

I think we have a huge credit of confidence with this commission. And when I talk to people in the European structures, I mean, it feels as if the politicians are saying, look, stay calm. This will all turn out right. If you talk to the civil servants or the people working in the commission, probably there’s slightly a different picture there. But I think the politicians believe that yeah, that this will all turn out fine. And I think they’re hoping that by the European elections, rule of law will be restored in Poland, and that Poland is gonna be the poster child of restoring liberal democracy.

Ben Hall
Yes, as you say, the victory of the opposition, or rather, their denial of a third term in office for Law and Justice in the elections last October really cheered democrats across Europe and further afield. And I think there will be huge and close attention on the process of restoring impartiality and the rule of law in Poland, and it will offer lessons for other countries where illiberal democracy or autocracy has taken hold.

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That was Polish political analyst Andrzej Bobiński. And that’s it for this week. Please join us again next week for another edition of the Rachman Review.

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