Poland’s EU favorite Donald Tusk now fighting real democracy with “militant democracy”

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The broad right wing in Poland (considered “enemies of liberal democracy”) should be stripped of civil rights – that is, according to those who would implement the “militant democracy” concept, now openly promoted by EU-supported Prime Minister Donald Tusk.

A comment by Polish attorney at law and Ordo Iuris associate Bartosz Lewandowski, to the extraordinary statement made by Polish Prime Minister Donald Tusk on September 10, explaining why he now has to violate the rule of law himself after spending 8 years in opposition criticizing – with the support of Brussels – the previous right-wing Law and Justice government for its supposed violations of the rule of law.

There’s nothing to laugh about. Last Tuesday, Poland’s Prime Minister openly suggested that we are in the implementation phase of “militant democracy.” Some may have thought this was some term invented by the head of government. Well, no. The concept (German: streitbare Demokratie) originated in 1937 and was popularized by political scientist Karl Loewenstein. In a nutshell, the concept of “militant democracy” (also sometimes called “defensive democracy”) implies that liberal democracies should take necessary steps of any kind (even unconstitutional ones) against those individuals, associations or political parties that – within the framework of public discourse – formulate slogans that challenge the principles of liberal democracy.

Who is to decide which slogans or actions undermine the foundations of the “liberal” version of democracy? Of course, the one who has the power to do so – the government. The concept of “militant democracy” – in addition to the “repressive tolerance” formulated by Herbert Marcuse – is intended, at least in theory, to ensure freedom and democracy. The catch is that reality demonstrates something quite different: these intellectual concepts justify violence and disenfranchisement of those citizens whose views threaten the rule of the “liberal elite” or revolutionary left. That is, they distort the essence of democracy, as they are supposed to “solidify” a certain political system without giving citizens a choice. Thus, they create de facto “second-class citizens.”

It’s not as if Prime Minister Donald Tusk suddenly called to mind an old Karl Loewenstein concept. The Polish Prime Minister was probably familiar with the statements of lawyers on this subject, specifically those lawyers who advocate a radical course in “restoring” the rule of law in Poland. One example is Professor Tadeusz Koncewicz, who, as recently as February 2024 in the pages of the Rzeczpospolita daily newspaper, proposed “zeroing out” the Constitutional Tribunal through a resolution of the Sejm. Dr. Aleksandra Gliszczyńska-Grabias is also addressing the concept of “militant democracy.” In June, Adam Bodnar appointed her head of the “Unit for Counteracting Hate Speech and Crimes Motivated by Prejudice,” which also includes prosecutors (including prosecutor Jacek Bilewicz) and judges. Ordo Iuris attorney Jerzy Kwaśniewski warned about the danger of this type of operation as early as 2019 in a piece for Rzeczpospolita.

So, what can you read in these articles about “preventive measures” on the part of liberal democracy against right-wing movements that threaten it? In his article titled “Democracy Fighting in Defense of the Constitution”, Professor Tadeusz Koncewicz writes, “the state cannot wait to intervene defensively until a political party takes power and begins to introduce new orders that are incompatible with the current constitution. When the threat to democracy is sufficiently documented and real, it is necessary to act ‘here and now’... The organs of the [Polish] Third Republic could defend democracy in many ways. Not only by outlawing anti-democratic parties, but also by refusing, for example, marches or gatherings whose sole and main purpose is to question the state system and its constitutional foundations, or to spread hatred. When liberal Poland finally begins to understand its commitment to defensive action, it may, unfortunately, be too late. The moment to ban the Independence March was a dozen years ago, not in November 2018. Back then, such a move could have been more than just a symbol (albeit an important one).”

So, since those in power are entering a phase of “militant democracy,” we should not be surprised by the takeover (by force, and in violation of the constitution) of state institutions. This is a prelude to what is already being promoted. All indications are that the crackdown on groups and organizations such as the Independence March Association, the National Movement, the All-Polish Youth, Law and Justice, Sovereign Poland, Ordo Iuris, and others will enter a decisive phase soon. By any means necessary...

Bartosz Lewandowski

Bartosz Lewandowski is an attorney at law and an associate of the Ordo Iuris Institute’s Process Intervention Center.

You will find here below the English translation of the extraordinary statement made by Polish Prime Minister Donald Tusk on September 10, 2024, at the conference “Ways out of the Constitutional Crisis”, to which Lewandowski refers in the above commentary:

Thank you very much Madam Speaker, Mr. Speaker, Ladies and Gentlemen.

It is a privilege for me to be able to participate in this conversation among this group. I am very grateful for this opportunity. Particularly since, with each passing week, the discussion of how practically to apply the constitution in a country where the de facto constitutional order has been devastated is gaining steam and has become, since time immemorial, certainly the hottest constitutional debate occupying not only experts and not only lawyers anymore. Each of us has within us – Mr. Speaker will forgive me – this naïve dream, that in politics, too, the principle of yes, yes, no, no could apply. Recent months clearly show that there are quite a few people – authorities, politicians, lawyers – and they do indeed say yes, yes, no, no. It’s just that some say yes, yes when others say no, no on the same issue.

Does this mean that we lack some fixed reference points or that there is a lack of authentic legal, scientific, and political authorities? I believe that nothing has changed, i.e., we have in Poland a group of really outstanding statutory lawyers – not only those, but also constitutional specialists. What has changed are the circumstances in which we have to operate. I am not a lawyer, and therefore, as Prime Minister, I try to abide by the law within the framework set not only by the laws, but then, when the political system is defaced by political decisions, also the interpretation of those laws.

In the situation in which we find ourselves today, which I just described, I had a meeting with the Polish ambassadors. In foreign policy we also have, as you know, a competence dispute. There was a time when this ended with the verdict of the Constitutional Court. Where are those times when something was handed over to the Constitutional Court with the belief that there would be a verdict that might – I wasn’t satisfied with the verdict – for example, regarding the competence issues between the president and the prime minister during the famous conflict over the chair in Brussels, but it wouldn’t have occurred to me to question the Court’s verdict? I, for one, don’t know if anyone will take my word for it if I say that, when I was prime minister, I did not meet with Professor Rzepliński, the president of the Constitutional Court, even once, because we both recognized – and we knew each other well before – because we considered it highly inappropriate, any contact.

So, during my entire tenure and Professor Rzepliński’s, I physically saw him once, as a guest at the Court’s anniversary event. Can anyone imagine such an idea, that when there was an independent prosecutor – I was also prime minister at the time, and this went on for years – with the prosecutor, apart from systemic situations like the report in the Sejm or the acceptance or rejection of the report by the prime minister, a type of situation that occurred once a year, I met him once in five years?

Because we both recognized that a meeting between the prime minister and an independent prosecutor could raise bad consequences from the point of view of the institution’s independence. Did this make it easier for me to govern? On the contrary, by no means. Respect for the constitution was based on our conviction, and I think I am saying the same thing that all the participants in today’s meeting are thinking. Not because we were all in love with the constitution. I, for one, was not happy at the time this constitution was passed. But it wouldn’t even have occurred to me to question its principles because of that.

Even if they were inconvenient. Not to mention some of the verdicts of the Constitutional Court, for example, which I sometimes find grossly unjust. Today we discussed at length the issue of quota or percentage indexation of pensions. This story reemerged after many years. I thoroughly disagreed with the Constitutional Court’s interpretation, but it would not even occur to me to question it.

Everything has changed. These eight years have really defaced the system, and not even in a black and white way, because we are all drowning in gray. In these very loopholes of interpretation. Everyone is, in a sense, fully entitled and fully right when voicing one’s own opinions, contrary to the opinions of others, about what should be done and what should not be done. You guessed it, of course, I am talking about personal discomfort with matters of countersignatures. This is the most recent issue, but it is not the only one, definitely not the only one. In a practical sense, I have the much bigger problem of how to conduct foreign policy without donning the robes of a revolutionary, with this unfortunate competency law over my head, which de facto changed – whose intention was to change – the system by shifting the burden of personnel decisions to the Presidential Palace.

I, for one, have this dilemma every day. I would probably be the happiest prime minister in Europe if this and subsequent meetings would give the possibility of binding me, binding, and therefore in some sense restraining, in the interpretation of all these current doubtful regulations or loopholes. It seems to me that, as I mentioned, I’m not a lawyer, I’m a historian by training, and I know from history that always, but especially in situations like this, when the de facto rule of the constitution has been overturned, if we want to restore the constitutional order, if we want to restore those foundations of liberal democracy, we encounter every day, I encounter every day, situations in which I have tools that do not give me the opportunity to correct reality. I am talking about legal tools. Prepared by predecessors whose intention was to destroy the order, not to strengthen or build it. So as a historian, in my opinion, I think I can confidently venture the thesis that we have a need today to act in these terms of militant democracy.

I mean, we will probably make mistakes more than once, or commit acts that, according to some legal authorities, will be incompatible or not fully in accordance with the provisions of the law, but nothing relieves us of the responsibility to act every day. I, daily, have to make decisions that can be very easily criticized and challenged from the legal side, but without these decisions it would actually make no sense at all for me to take on the responsibility of running the work of the government. So I don’t think that the way out of this situation is to formulate some legal, legislative proposals, when the scene is constantly populated with political actors for whom provisions even of the highest order have no meaning. For whom political will, to use a classic, is far more important than the provisions of the legal order or constitutional provisions.

How do we get out of this situation? At a recent meeting with lawyers, I used a not entirely fortuitous historical comparison, when democracy was being rebuilt, namely in Germany after World War II, it was not the provisions that would guarantee order, but the presence of the US army in Germany. I would not like us in Poland ever to find ourselves in such a situation that an external force is necessary to guarantee our constitutional order. It would be a tragedy. But we therefore have to find strength in ourselves, not having efficient tools, our own strength and determination. After all, in the case of the executive branch, this is what we are paid to do, to take risks and make decisions that you all will sometimes question. I, in any case, will continue to make such decisions with full awareness of the risk that not all of them will meet the criteria of full rule of law from the point of view of, for example, purists in the good sense of the word.

I said this to the ambassadors, and I can repeat it before you. This is not a slogan. I really feel every day offers a situation where the main premise must be to behave decently, because in politics, decency also matters. I would like to behave first and foremost in accordance with the law, but very often I am faced with a dilemma, what to do when I don’t have the legal tools to behave decently, to make decisions, and they will always be somewhere in some legal parentheses or in a vacuum.

Well, but this is my…this is the task I have undertaken, so, in this regard I don’t even ask for understanding, I’m just all ears.