On June 4, Poland’s main opposition party, the liberal Civic Platform (PO), mobilized the country by holding the biggest anti-government protest since the fall of communism, coined as the “Freedom March” (“Marsz Wolności''). These demonstrations do not bode well for the ruling right-wing Law and Justice party (PiS). Numerous polls show their approval ratings have been consistently falling since May, or at best have plateaued. Meanwhile, the opposition’s popularity has been increasing at an accelerating rate, even surpassing the “magic barrier” of 30%. In the context of Polish politics, PO has become a significant competitor and may challenge PiS in the upcoming parliamentary elections.

The rivalry between the leader of PiS, Jarosław Kaczyński, and the former Polish Prime Minister, Donald Tusk, has been a persisting conflict in modern Polish politics. The conflict subsided in 2014 when Tusk left Poland for Brussels to fulfill his role as President of the European Council. A year later, PiS won the parliamentary elections and have remained in power since. Tusk, though, returned to Polish politics in 202,  and as the reappointed leader of PO, he is preparing to challenge Kaczyński's reign. 

Approximately 500,000 Poles traveled from across the country to Warsaw to show support for the Civic Platform, and to protest against Kaczyński’s right-wing coalition government. The demonstrations were spurred by the divisive law passed by Poland’s lower house of parliament, the Sejm, which, despite being vetoed by the Senate, was signed by President Andrzej Duda and is part of PiS’s campaign to tarnish Tusk’s name—hence it’s colloquial name, given by the opposition, “Lex Tusk.”

The law aims to establish a new disciplinary judicial body called the new State Commission for the Study of Russian Influences on the Internal Security of the Republic of Poland from 2007 to 2022. Donald Tusk, the person seen to be the clear target of the law, became the Prime Minister of Poland in 2007 after PO victory in that year’s parliamentary elections. He took over the position after the departure of Jarosław Kaczyński’s twin brother, Lech Kaczyński, who was, at the time, the President. Therefore, 2007 was a pinnacle year in Polish politics when the rivalry between PiS (Kaczyński) and PO (Tusk) was played out between the highest positions of power - the President and Prime Minister. These circumstances also explain why the commission’s investigative duties began in 2007 — the year in which Tusk’s rise to power prevented PiS from pursuing their authoritarian agenda  — the way that they have been pushing changes since 2015. 

Kaczyński’s supporters have attacked Tusk, referring to him as a “Russian agent” and “traitor.” Some also call him a “German,” referring to the time in the 1980s when Tusk worked in a German apple juice factory. Tusk's history abroad is often distorted into evidence of him leaving his country behind — consequently fueling claims that he will not put Poland's wellbeing first in scenarios involving, for example, the European Union. Many commentators across political parties have noted that the establishment of the judicial body is a political move to eliminate any viable opposition and “hits Donald Tusk directly.” Deputy Minister of Agriculture Janusz Kowalski from the Sovereign Poland party admitted in April that he hopes that the commission will effectively bring “Donald Tusk before the State Tribunal.” The law has even been criticized by the U.S. Department of State, as well as by the European Commission, as a “constitutional coup d'état” created to eliminate political rivals.

The commission would consist of nine members, all appointed and dismissed by the Sejm, and controlled by the conservative PiS party and its partners. The significant elements of the law are the so-called “countermeasures'' which would, most importantly, give the established commission the authority to remove any given person from public service for up to ten years. Since the obvious target of the law is Tusk, currently Kaczyński’s biggest opponent, the commission would serve PiS as a tool to eliminate the former Prime Minister from Polish politics. 

The commission itself would excuse its members from any liability, give them the ability to disclose any confidential information, and allow them to prosecute a person, without the possibility of appealing against the decision of the commission. Borys Budka, PO’s former leader who stepped down for Tusk’s return as the party’s leader, called the law “Kaczyński’s big cowardice,” implying that PiS is scared of Tusk’s rising popularity and approval. Budka also described the law as “Bolshevik” and “shameful,” comparing it to the Soviet dictatorship known for its corrupt elimination of opposition through purges. 

On May 29, five days before the protest, Duda submitted amendments to the bill creating an unexpected delay in Kaczyński’s plans to eliminate Tusk from the ballot. Duda could “not withstand the pressure” that came as backlash from the law and left a window of opportunity for the opposition to turn Lex Tusk into a tool against PiS. If the commission begins functioning after the elections, there is a chance that it will be overtaken by PO and used to their advantage. Tusk is prepared to take preemptive measures and even called-out current Polish Prime Minister Mateusz Morawiecki and stated that Morawiecki will be held responsible for “what he did for the Russians years ago.”

Apart from being a political tool to eliminate a key opponent in the upcoming elections, the bill is fundamentally unconstitutional, undermining one of Poland’s essential civil liberties: the right to trial in front of an impartial and independent judiciary, guaranteed by Article 45 of the Polish Constitution. If the commission is to formally act as a court, without being constitutionally recognized as one, it would undermine Article 10 of the Polish Constitution which guarantees the tripartite separation of powers. In terms of European Union (EU) law, Lex Tusk infringes on Article 47 of the Charter of Fundamental Rights of the European Union, which is the foundation of EU law and gives everyone the right to a fair and public hearing by “an independent and impartial tribunal.” Since the commission would be dependent on the selection process of the parliament, it would effectively be an unconstitutional extension of the legislature acting as a judicial body.  

After the signing of the bill, Věra Jourová, European Commission Vice-President for Values and Transparency, has stated that the European Commission views the law as a “serious blow to democratic processes and to the fairness of the elections.” The EU initiated infringement procedures against Poland as a response to the threat that the bill poses to Polish and European law. Poland was then given 21 days to respond to the allegations and make adjustments to the law or abandon it. On June 30, the final day given to Poland by the EU, the Polish government stated that it upholds the bill and rejects Brussel's accusations about it interfering with democracy. Because Poland did not address the EU’s concerns, the conflict could develop into a potential court case carrying financial penalties. This would be yet another clash between the EU and Poland about continuous Polish breaching of EU’s and its own rule of law. PiS’s previous conflicts with the EU include its attacks on Polish courts and the Constitutional Tribunal, along with the creation of another “pseudo-judiciary”— the Disciplinary Chamber. 

PiS is still leading in election polls, but Koalicja — the liberal coalition led by PO — has been consistently gaining traction. Still, there is no doubt that the October race will be close. It will also remain crucial to observe smaller parties like the “Third Way” coalition of Poland 2050, the Poland Peasant Party or the rising “Confederation” alliance; they might prove to be the factors that will tip the scale in favor of either PiS or PO.