WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
February 19 2024
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
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Turkey, Poland and Political Freedom

Turkey, Poland and Political Freedom

Turkey’s presidential election, held on 14 May, was framed as Turkish democracy’s last stand. If Erdogan won the presidency for a third successive time – as he came to do – it was said that would be the end of democracy in the country. The flickering embers of liberal democratic values would be snuffed out. It may be that this proves the case, and that Turkey is at the vanguard of the group of nascent democracies – including Poland, Hungary, and India – collapsing back into autocratic rule.

But if the election was liberal democracy’s last stand, it was a skirmish that took place at the end of 2022 that led to its defeat. At the end of 2022, Ekerem Imamoglu, the mayor of Istanbul and de facto leader of the CHP, Turkey’s main opposition party, stood in dock of Istanbul’s criminal court. He was charged with and convicted of ‘insulting state officials’, which, if upheld by the Erdogan-controlled appeals court, would have barred him from holding state office.

There was no real insult to any of Turkey’s state officials. This was nothing more than a trumped up accusation, almost certainly made on Erdogan’s instructions, designed to remove the CHP’s most prominent and popular candidate from the field of battle. Nor was Erdogan’s fear of Imamoglu unjustified. Even without Imamoglu, the CHP were able to push Erdogan into a second-round run-off for the first time in his presidency. With him, they may have been able to push Erdogan from his presidential pedestal entirely.

Other would-be autocracies were clearly paying attention – not least in Poland. The ruling Law and Justice Party (PiS) has put forward legislation designed for to remove its major opponent, Donald Tusk, from standing in this year’s parliamentary election. Tusk is the founder of Poland’s Civic Platform party, a former prime minister (from 2007-2014), and a former president of the European Council (2014-2019). He is one of the few Polish politicians with the clout and stature to challenge PiS’s creation of a one-party Poland, which would guarantee the country belongs to the autocratic far-right.

Taking advantage of the wave of Russian hostility that is sweeping over the European continent, the forthcoming legislation would create a commission charged with investigating Russian influence in Polish politics between 2007 and 2022. For those the Commission finds guilty of ever doing anything ‘under Russian’ influence, it will be empowered to ban them from politics for a decade.  And it is only the Commission that needs to find an individual guilty. It is a law unto itself. A one-stop shop for finding, investigating and eliminating political opponents.

It is self-evident that the Commission violates the rule of law. The Commission can deliver the judgment of a court, but without any of the institutional checks and balances, like the right to counsel, the requirement to hear both sides, or even the right of appeal. While Poland’s citizens turned out en masse in support of the rule of law this weekend, with hundreds of thousands attending a march across Warsaw led by Tusk, it is quite possibly already too late. Those who hoped that Poland would blossom into a genuine, established democracy after Solidarity – headed by Lech Walesa, who marched this weekend alongside Tusk – freed it from the Soviet regime may find that their hopes have been dashed against the rocks of authoritarianism.

The steps that have already been taken by PiS to secure its position in the constitutional firmament mean that President Duda’s referral of the legislation to the Constitutional Tribunal is hollow.  In theory, a president’s referral of legislation to the Constitutional Tribunal reveals  concern over the proposed legislation’s compatibility with the Constitution – concern that requires a neutral arbiter to rule on it.  There is some irony then in Duda referring the legislation to the Tribunal as he simultaneously signs it into law.  But nor is there any real doubt that the Tribunal will scrutinise it any more effectively than Duda has done.  While the Constitutional Tribunal was established at the dawn of Poland’s modern era as a crucial check on executive and legislative power, it no longer functions as anything but a rubber-stamp.

After PiS won a majority in the Sejm (Poland’s parliament) in 2015, they disembowelled the court. The outgoing PO party tried to protect the independence of the Tribunal by appointing new justices at the end of its term, but Duda, who was already President, blocked them. Conflict erupted between the Constitutional Tribunal, who tried to block the alternative candidates nominated by PiS and appoint the original nominees, and the PiS-controlled Sejm, who passed legislation forcing the partisan nominees onto the bench. Despite condemnation from constitutional groups globally and from Polish judicial associations, the Tribunal has now been completely packed by PiS, who have now filled all 15 seats with partisans sympathetic to their political cause.

Once the Tribunal has ruled in favour of the legislation, PiS will be able to claim the high ground. They will tell Polish society – which is just as fractured by partisanship as democracies like the US and Britain – that the Tribunal has upheld its validity. For its supporters and for the ambivalent, that will be enough. Accusations of illiberality from allies of Tusk and from those aware of the evisceration of democratic norms within Poland will be dismissed as sour grapes, or as the rantings of ‘woke’ liberals.

And with Tusk – a unifying figure for Poland’s liberals – removed, the prospects of the liberals and the left cohering around an alternative candidate and party in the next election will fade, with the votes splintering in favour of various groups. Liberal democrats may look to the popular Mayor of Warsaw (and 2020 presidential candidate) Rafal Trszaskowski as an alternative leader, but even he is not safe from the Commission’s reach, having served as an MEP from 2009.

Despite all of this, it may be that PiS have overreached with this legislation. The administration did not expect resistance on the scale of this weekend’s march, and the Commission’s legitimacy has already been called into question. Coupled with Tusk’s call for reconciliation in his speech at this weekend’s march – drawing on the more moderate, accommodating approach put forward by Maciej Kisilowski, a constitutional theorist at CEU – and it may be that PiS lose the courage to move forward with the Commission, or with their persecution of Tusk.

With the war in Ukraine reorienting priorities in central and eastern Europe, PiS may have been counting on the conflict to allow them to complete their seizure of power in Poland. But they underestimated how much resentment among the people has grown because of their abuse of the Polish constitution. Should Tusk come out of this fight with his reputation enhanced, rather than tainted by the hint of Russian corruption, it may be a step onto the first rung of the ladder Poland needs to escape from authoritarian rule, and towards a new constitutional future.