Grażyna Skąpska
It is difficult to write about the crisis of democracy in Poland precisely in the eye of the storm of recent events. Currently, one observes constant attacks by the parliamentary majority on the foundations of liberal democratic constitutionalism: the rule of law, the checks and balances principle, judicial review, judicial sovereignty, the freedom of public media, civil rights and liberties, and private ownership.
Still, violations of liberal democratic principles are typical not only of Poland, but are generally found across Central Eastern Europe. As Jacques Rupnik and Jan Zielonka observe, when these countries joined the European Union in 2004-2007, they presented consolidated democracies with seemingly workable constitutions, administrations, and markets. Nowadays, in contrast, they “are seen as particularly vulnerable and susceptible to dictatorial turn” (Rupnik, Zielonka 2013:21). For the emerging forms of these political regimes new, paradoxical concepts are coined – such as “illiberal democracies” – to describe a state’s capture by a parliamentary majority. Among these, Poland presents the saddest example. Here, since the parliamentary elections in late 2015, perplexing events have followed suit in swift succession; literally every day introduces a serious challenge to liberal democracy.
This politically frenzied process began with the presidential elections held on 10 May 2015. They brought a victory to the candidate supported by the conservative and rightwing Law and Justice (Prawo i Sprawiedliwość, PiS) party. The current President of Poland, Andrzej Duda won by a slight majority: he gained 51.55% votes versus the 48.45% won by then-President Bronisław Komorowski.
In the parliamentary elections of 25 October 2015, the victor was the Law and Justice party itself. Here it gained 37.52 % votes versus the 24.09% gained by the liberal Civic Platform (Platforma Obywatelska, PO) which – in a coalition with the Polish Peasant Party (Polskie Stronnictwo Ludowe, PSL) – had been in power since 2007. As a consequence of the electoral threshold system, the new Parliament now included the aforementioned three parties, plus two new political bodies: the Polish Peasant Party won 5.13% of the vote, while the populistic (anti-system) Kukiz’15 Movement (named after its founder and leader, a former rock singer, Paweł Kukiz) won 8.81% and the Modernity (Nowaczesna) party won 7.60% of the vote. As voter participation was 50.92 %, the winning Law and Justice was supported by only approximately 19% of the entire electorate. Nevertheless, this party was able – partly through redistribution due to votes cast for parties which did not meet thresholds – to gain enough seats in the Parliament to rule unaided, and to proclaim any laws it desires for its planned fundamental, and indeed, revolutionary reforms. The new cabinet, composed solely of Law and Justice party members, was formed on 6 November 2015 under Prime Minister Beata Szydło. It should be noted that support for the ruling party is rather stable: around 35% to 39% of the voting population.
The demographics of their supporters illustrate statistically significant differences between the political parties. Almost half of the Law and Justice party electorate consists of villages or small town inhabitants, whereas urban metropolis dwellers belong rather to the supporters of the Civic Platform. Dominant among the Law and Justice voters are persons with an elementary education, while the Civic Platform supporters are generally persons with a secondary education (differences between persons with tertiary education degrees are statistically insignificant). The electorate of the Law and Justice party is also characterized by a higher than average religious engagement as well as a predominantly rightwing political orientation.
Bearing in mind the current, growing popularity of the Kukiz’15 Movement and the Modernity party, it seems worthwhile to concisely analyze their electorates. The most distinctive feature of both is the age of their voters: both attract a population relatively younger than that of both the Law and Justice and Civic Platform parties. Yet there are also significant differences. The electorate backing Kukiz’15 is typically dominated, on the one hand, by high school or university student graduates (three times greater compared to the electorates of the remaining political parties), and, on the other hand, by blue-collar workers (almost one quarter of its electorate). In turn, the electorate of the Modernity party is dominated by persons with a tertiary level of education (72%); its electorate is also characterized by a higher than average proportion of persons in managerial or professional positions (almost one third in both cases), freelance specialists and businessmen. There is also a difference in political orientations between the Kukiz’15 Movement and the Modernity party. The supporters of the former entail a higher than the Polish average of persons declaring a rightwing orientation.
There are certain interesting, psychological features emblematic of specific party electorates, especially with regard to such phenomena as political paranoia (a tendency to believe in conspiracy theories as underlying critical sociopolitical experiences) and authoritarianism. Political paranoia, in the case of the Polish electorate, is evidenced in opinions that it is not the Polish government which reigns over the country, but rather very potent and hidden forces which further conspire against the country. Such opinions are supported mostly by the electorates of the Law and Justice Party and the Kukiz’15 Movement. The electorate of the Law and Justice party is also characterized by the highest (compared to other electorates) level of approval for authoritarianism (CBOS Report, 2015).
Nevertheless, new actors are also appearing on the political stage. The most significant of these is an increasingly visible, extra-parliamentarian social movement called the Committee for the Defense of Democracy (Komitet Obrony Demokracji, KOD). This spontaneous grassroots movement began to organize not only itself but also noticeable protests as of December 2015 (only weeks after the current government took power). Most recently it was able to mobilize 240,000 people to strongly and openly demonstrate together in the capital city of Warsaw in defense of the Constitutional Tribunal, the freedom of the mass media, and civic rights.
As mentioned above, with merely 19% support by the entire Polish electorate, the Law and Justice party won the overwhelming majority in the Polish legislature, in both its chambers. The fundamental changes ensued with a battle against the Constitutional Tribunal which, according to the Polish Constitution of 1997, is entitled to conduct constitutional review of any laws proclaimed by the Parliament. The clash was initiated by the President of Poland who did not swear in the tribunal justices legally chosen by the outgoing government. This conflict has been deepened by a decision of the legislature to not publish the verdicts of the Constitutional Tribunal, starting with the Tribunal’s decision that the new, so-called “corrective” statute (passed in December by the parliamentary majority) was unconstitutional.
The “corrective” law regarding the Constitutional Tribunal altered, among other things, the court’s rules and procedures. It has been almost universally condemned by the country’s most prominent attorneys (including all the former Chief Justices of the Tribunal itself), the former and the present Commissioners for Civic Rights, the law faculties of Poland’s most renowned universities, the Supreme Court President, the National Council of Judges, the Supreme Council of Lawyers, the then-Prosecutor General, and several civil society organizations (such as Amnesty International). The most important arguments stressed the effects of this law: paralysis in the Constitutional Tribunal’s functioning and, in effect, the destruction of the checks and balances principle as well as the constitutional review of lawmaking. Moreover, clear-cut criticism of this new statute and of the Law and Justice party attack on the Constitutional Tribunal in Poland has been expressed by such agencies as the Council of Europe’s European Commission for Democracy through Law (better known as the Venice Commission) whose members are prominent constitutional law experts. The Commission – invited by the current Minister of Foreign Affairs of the Polish government – came to Poland, spoke with all the parties involved, and finally announced its opinion. That opinion reiterates the earlier-mentioned critiques and arguments.
All of this has had no effect on the parliamentary majority according to which the ruling principle upon which attitudes towards constitutional law rests is, in fact, “Above the Law is the Nation”. Indeed, that very principle was publicly expressed and frantically applauded during a parliamentary session by a member of parliament – an eminent former dissident, Mr. Kornel Morawiecki.
In the meantime, other crucial legal changes have followed, altering the formation and functioning of the public prosecutor’s office, the police, the public media, civil service, and, quite newly, land ownership. Now being prepared is a law regulating the implementation of the judiciary and the National Council of the Judiciary. According to an updated statute regarding the public prosecutor’s office, that position is now subordinated to the Minister of Justice, who has also become the Prosecutor General with very broad prerogatives. Among others, the Minister of Justice (and Prosecutor General in one) not only nominates public prosecutors, but can intervene in their investigations at any stage, and can disclose the contents of as yet unfinished proceedings in public media. As for the new law on the police (the so-called “invigilation” law), the police and other special services can collect and interpret any telecommunication data as part of their operations. Judicial review of such operational activity is, however, possible only post factum and only with regard to general reports on police activities. On the subject of the public mass media, changes started with strong criticism of the press – mainly of the radio broadcasting and public TV stations – seen as presenting only one viewpoint, that of the opposition. The new law subordinates the media to the government, limiting (nearly to non-existence) the prerogatives of the Council of the Media. Finally, the law on land ownership strictly limits the property rights of agricultural landowners – with reference to purchase, selling, and inheritance thereof – and, in effect, excludes agricultural land and forests from the real estate market.
Each of the aforementioned legal changes has been conducted in a very peculiar style. There is no debate on the contents of the proposed laws, neither in the Parliament nor in the public media; the laws are usually proclaimed in haste and generally with no vacatio legis (time between promulgation and effect). Typically, these statutes have mostly been proclaimed very late in the evening or even late at night. This particular way of lawmaking is accompanied by extremely brutal language in public debate. Especially the ruling party leader, Jarosław Kaczyński and his closest followers specialize in dividing Poles into “patriots” (supporters of the ruling party) versus “traitors” (supporters of the opposition) who are labeled as representatives of foreign (i.e. European, German or Russian) interests.
A prominent Polish sociologist, Jadwiga Staniszkis, has called the political system now functioning in Poland an “anti-communist Bolshevism”. The emerging system resembles Russia after the Bolshevik revolution. The most visible common feature comprises a legal nihilism – disregard for civil rights and liberal constitutionalism accompanied by near total dependence of the president and of the cabinet on the ruling party leader as a central steering agency of a sort (as had been the case with the First Secretary of the Soviet Communist Party). The second common feature is the attempt of the parliamentary majority to denounce the opposition as traitors, Poles “of a worse sort”, and the progeny of pre-1989 communists and the communist secret police (in Bolshevik Russia these persons were “capitalists” and “landowners”). Finally, there is the matter of the extremely crude vocabulary and level of public debate.
That said, this novel system in Poland bears certain peculiarities all its own. Firstly, the party leader possesses rather limited political responsibility: formally and legally he is only a regular member of parliament. That fact notwithstanding, it is this leader who coordinates the whole of domestic and foreign policy in an informal, yet highly effective manner. Other central features of this system to consider include a nationalistically-flavored populism with close links to the most ultraconservative representatives of the Roman Catholic Church in Poland.
References:
Grabowska, M., Pankowski, K. (eds). 2015. “CBOS Wybory 2015 w badaniach CBOS” (2015 Elections in CBOS Survey) Report No 33 , CBOS: Warszawa.
Rupnik, J., Zielonka, J. (2013) “Introduction: The State of Democracy 20 Years on: Domestic and External Factors, East European Politics and Societies and Cultures, vol. 27, no.1: p.21.
Grażyna Skąpska is professor of sociology in the Institute of Sociology, Jagiellonian University, Kraków.
Image: Piotr Drabik CC-BY-2.0