Fifty-eight days. That’s how long it took after the inauguration of Prime Minister Beata Szydło’s government in 2015 for the European Commission to trigger the so-called rule of law procedure against Poland. Starting on January 13, 2016, the ruling United Right party faced a barrage of accusations from EU institutions and foreign MEPs, citing various legal abuses. Their reforms were obstructed, and funds owed to Poland were unlawfully withheld.
Fast forward to today—tomorrow marks exactly nine months since the inauguration of Donald Tusk’s government. In that time, Tusk’s administration has been accused of forcibly taking control of the prosecutor’s office, purging the judiciary, politicizing the justice system, attacking public media, imprisoning political opponents, and even censoring the press. Yet, the very institutions that were once so concerned about Poland’s rule of law have remained conspicuously silent. The growing sense of impunity within the ruling camp has emboldened the Polish Prime Minister to openly declare his intention to continue breaking the law.
During the “Ways Out of the Constitutional Crisis” conference on Tuesday, attended by Prime Minister Donald Tusk, Speaker of the Sejm Szymon Hołownia, and Senate Speaker Małgorzata Kidawa-Błońska, Tusk made an audacious statement. He argued that the executive branch must “find the strength and determination within themselves to act, even without legal tools.” He added, “I will continue to make such decisions, fully aware of the risks and the scrutiny they will face.” Tusk also took aim at the United Right, accusing them of dismantling Poland’s justice system.
The prime minister, however, did not stop at pointing fingers. Speaking to legal experts in the room, Tusk warned, “we will likely make mistakes, and legal authorities may deem some of our actions inconsistent with the law.”
Donald Tusk – Ways Out of the Constitutional Crisis
Thank you very much, Madam Speaker, Mr. Speaker, dear Ladies and Gentlemen. It is a privilege for me to participate in this group and conversation. I am very grateful for this opportunity, especially as the discussion on how to practically apply the Constitution in a country, where the de facto constitutional order has been devastated is gaining momentum with each passing week. It has certainly become the hottest political and constitutional debate in recent memory, involving not only experts and lawyers but everyone. Forgive me for being naive, but each of us dreams that in politics, the principle of "yes means yes, and no means no" could apply too. The last few months have clearly shown that many authorities, politicians, lawyers—do say “yes, yes, no, no.” It's just that some say “yes” while others say “no” on the same issue.
Does it mean that we lack fixed reference points, or is there a lack of authentic legal, scientific, and political authorities? I believe nothing has changed. We still have a group of outstanding constitutional experts in Poland. What has changed are the circumstances in which we must operate. I am not a lawyer, but as Prime Minister, I tried to observe the law within the framework not only set by the rules but also influenced by political decisions and interpretations of those rules. This is the situation in which we find ourselves today.
I recently met with the Polish ambassadors regarding foreign policy. As you know, we also have a dispute over competence. Once, such matters ended with a Constitutional Court verdict. Where are those days when something could be handed over to the Constitutional Tribunal with the belief that a decision would be made—perhaps one that wasn’t satisfying, as in the case of the famous conflict over the chair in Brussels between the president and the prime minister—but one that we wouldn’t question?
I don't know if anyone will take my word for it, but when I was Prime Minister, I never met Professor Rzepliński, then President of the Constitutional Tribunal, even once. Though we knew each other well before, we both considered it highly inappropriate to have any contact during my tenure. I saw him only once at the Court’s anniversary event, as one of the guests. Can anyone imagine that, when there was an independent prosecutor and I was Prime Minister, I met the prosecutor only once in five years? That’s because we both believed that a meeting between the Prime Minister and an independent prosecutor could have negative consequences from the perspective of the institution’s independence.
Did this make governing easier for me? Absolutely not. Respect for the Constitution stemmed from our conviction—one I believe is shared by all participants in today’s meeting. It wasn’t because we loved the Constitution, but because we recognized the importance of adhering to its principles, even when they were inconvenient. It would never have occurred to me to question any of its rulings, even those that I considered grossly unfair.
Today, we discussed at length the issue of the quota or percentage-based indexation of pensions, a debate that stretches back many years. I fundamentally disagreed with the Constitutional Court’s interpretation, but it never crossed my mind to challenge it. Everything has changed now. These past eight years have truly devastated the system, but not in a black-and-white way. We are all drowning in grey, in the loopholes of interpretation. Everyone is, to some extent, fully entitled and justified in their opinions, even when contradicting others.
You might have guessed that I am speaking from a place of personal discomfort regarding matters of countersignatures. That’s my last point, not the only one though. I have an even bigger issue: how, without becoming a revolutionary, to conduct foreign policy under this unfortunate competency law, which de facto shifted the burden of personnel decisions to the Presidential Palace. I face this dilemma every day and would likely be the happiest Prime Minister in Europe if meetings like this one allowed me to interpret these questionable provisions in a way that binds me and others.
As I mentioned, I am not a lawyer but a historian by profession, and I know from history that in situations like this, where the rule of the Constitution has been overturned, restoring constitutional order is an immense challenge. Every day, I confront a situation where I have tools that don’t allow me to correct reality—legal tools created by predecessors with the intent to destroy, not strengthen this order.
As a historian, I venture the thesis that we are now in need of what could be called militant democracy. We will likely make mistakes, and legal authorities may deem some of our actions inconsistent with the law, but that does not relieve us of the duty to act. Every day, I must make decisions that can easily be criticized and undermined from a legal perspective. But without those decisions, there would be no point in taking responsibility for running the government.
I don’t believe that the solution lies in proposing new laws when political actors treat the highest provisions with disregard. How do we escape this situation? At a recent meeting with lawyers, I made a historical comparison, not by chance. After World War II, democracy in Germany wasn’t guaranteed only by provisions but by the presence of U.S. forces. I hope Poland will never face a situation where external forces are needed to guarantee our constitutional order, but we must find the strength and determination within ourselves to act, even without legal tools.
As executives, we are paid to take risks and make decisions, knowing they will sometimes be questioned. I will continue to make such decisions, fully aware of the risks and the scrutiny they will face. Decency matters in politics, and while I would like to always act within the law, I often face the dilemma of how to behave decently without the legal tools to do so. This is the task I have undertaken, and I am not asking for understanding—only that you listen.
Thank you very much, Prime Minister.
Tusk’s remarks raise critical questions about the state of democracy and rule of law in Poland under his government—a government seemingly willing to operate in a legal grey zone.