Poland’s Constitutional Breakdown
WOJCIECH SADURSKI
3
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Preface
In March 2018 an Irish court handed down a judgment in a case which, on the face of it, was simple, easy, and routine: a suspected drug trafficker, a national of another European Union (EU) country, was sought by his country of citizenship under the European Arrest Warrant (EAW) system. All procedures had been correctly followed: the identity of Mr Artur Celmer was confirmed, no less than three arrest warrants were properly filed, and there were no objections to the surrender based, for instance, on the severity of possible punishment in the country that sought to bring Mr Celmer to justice—Poland. All—well, almost all—conditions for the surrender under the EAW were met.
And yet, Justice Aileen Donnelly refused to authorize the extradition of Mr Celmer and instead made a request to the Court of Justice of European Union for a preliminary ruling. The main reason for this was that because of recent legislative changes in Poland, there was a strong suspicion that the rule of law there was systematically damaged, and this undermined the mutual trust that underpinned the EAW process.
The twenty-three-page judgment1 makes fascinating legal reading. It refers to a lot of extrinsic material—to the opinions of the Venice Commission (the European Commission for Democracy Through Law) and to the European Commission’s (EC’s) Reasoned Proposal on the use of sanctions (Art. 7 procedure) against Poland. The accuracy of these documents, Justice Aileen Donnelly said, was not in question because they ‘amount to specific, updated, objective and reliable information as to the situation regarding the threat to the rule of law in Poland’.2 And the conclusion must be that the EC’s Reasoned Proposal is, by any measure, a shocking indictment of the status of the rule of law in a European country in the second decade of the 21st Century. It sets out in stark terms what appears to be a deliberate, calculated and provocative legislative dismantling by Poland of the independence of the judiciary, a key component of the rule of law.3
And if that was not enough, ‘[e]ven “the constitutionality of Polish laws can no longer be effectively guaranteed” because the independence and legitimacy of the Constitutional Tribunal are seriously undermined’.4
1 Minister for Justice and Equality v. Celmer [2018] IEHC 119.
2 Ibid., para. 122.
3 Ibid., para. 123.
4 Ibid., para. 123, quoting Reasoned Proposal in accordance with Art. 7(1) of the Treaty on European Union regarding the rule of law in Poland, 20 December 2017, para. 180(1).
Deliberate, calculated, and provocative. How could that have happened, especially in a country that was only a few years earlier widely, and justifiably, applauded for its achievements in democratic consolidation, human rights, and judicial independence? Or perhaps, as a bewildered Polish government immediately retorted, the Irish judge was badly mistaken, misled, and ignorant of the real situation in Poland? Polish deputy minister of justice Michał Warchoł expressed his incredulity that ‘general, abstract deliberations, projections and speculations’ could become the basis for a judgment, and suggested that the Irish court simply did not understand his government’s reforms.5
If only this were true. This book provides an account of what happened, why it happened, and how it happened, with the consequence that this Irish court’s judgment was not only possible, but also eminently justified.
I begin in Chapter 1 with an outline of the general characteristics of the Poland’s constitutional transformation since 2015, and then an explanation of why the concept of ‘anti-constitutional populist backsliding’ is the most appropriate way of describing it. It is anti-constitutional because it proceeds through statutory ‘amendments’ and outright breaches of the Constitution; it is populist because the ruling elite, while dismantling checks and balances, is actively fomenting societal support and mobilization; and it is backsliding because it should be seen against the baseline of high democratic standards achieved in the recent past. Chapter 2 provides an outline of constitutional history in post-communist Poland after 1989, emphasizing the sources and contours of a constitutional consensus which had been dominant in Poland for much of that period, as encapsulated in the Constitution of 1997 (still in force) that provides an important insight into the background of the anti-constitutional transformation of post-2015. In the chapters that follow, I provide a detailed account of how comprehensive and momentous the legal changes are, some going so far as to dismantle institutional checks on the government, including the paralysis of the Constitutional Tribunal (CT), and then its conversion into an active supporter of the government (Chapter 3). Chapter 4 examines how the changes capture the regular courts and law enforcement institutions, while Chapters 5 and 6 study the impact on the entire state apparatus and erosion of a number of individual and political rights, such as the right to assembly, freedom of speech, and privacy. Chapter 7 then offers some explanations of the sources of Prawo i Sprawiedliwość (Law and Justice (PiS) party) electoral success and then of its huge popularity in society. In Chapter 8 I reflect upon whether the European context may offer some remedies or solutions to the Polish crisis, and argue that the EU must (both for practical and principled reasons) intervene decisively in the case of Poland’s breach of Article 2 of Treaty on European Union (TEU) values, that
5 See Christian Davies, ‘Ireland refuses extradition over concern at Polish justice reforms’, Guardian (London, 14 March 2018) online edition, https://www.theguardian.com/world/2018/mar/13/irelandrefuses-artur-celmer-extradition-poland-justice-reforms-ecj (accessed 20 October 2018).
is, those of democracy, the rule of law, and individual rights. In Chapter 9, I take a step back from this detailed account to offer more general observations on what the Polish case can teach us about the vexed question, hotly debated in political science and constitutional theory these days, namely whether a ‘populist democracy’ or ‘illiberal democracy’ is still a democracy tout court. In the Afterword, I look into the future.
A final caveat needs to be made. The emphasis on backsliding in this book implies that the construction of authoritarian populism in Poland is very much a work in progress. It is dynamic, moving along a trajectory the subsequent stages of which are uncertain. Kaczyński’s Poland is not Erdoğan’s Turkey; we can roughly discern its directions, but we do not know the endpoints. Hence, any descriptive characterization of the emerging regime must come with a proviso that it is tentative, and that the only thing that is certain is that there are no certainties about further developments. All formulae adopted to describe the system must be preceded by ‘quasi’ or ‘semi’; contradictory trends and forces are simultaneously present and pull the state in opposite directions. It is not a plateau but movement, and even if the populist-authoritarian forces seem today dominant, their triumph is by no means a fait accompli.
The frantic pace of Polish backsliding also means that the account provided here will likely no longer reflect the ever-changing situation when this book reaches its first readers. This means that the value of this account will be largely historical— which is not to downplay it, but to qualify it in an important way. The legal status quo described here is valid as of 1 October 2018.
A personal disclosure: for me, Poland is not just a case study to be examined as a specimen of a crisis of democracy and constitutionalism. To me Poland is my country, which I love, and so there are occasions in the book when I abandon a dispassionate and detached style, and let my emotions speak. I feel that I need not apologize for that, but I should place it as a warning at the outset. I believe that this book is accurate, but neutral it is not.
Acknowledgements
This book was quick in the making, but I managed to incur huge debts to a large number of people. My special thanks go to Bojan Bugarič, Adam Czarnota, Martin Krygier, Laurent Pech, and Mirosław Wyrzykowski who read large parts of the manuscript, providing me with very helpful suggestions and advice. Of course, I do not want to entangle any of them in endorsement for my substantive propositions and assessments.
I was unusually lucky in being able to rely on the work and assistance of some extremely talented young scholars who agreed to act as my researchers: Kirsten Gan, Mateusz Grochowski, Mariana Olaizola Rosenblat, and especially Michał Marek Ziółkowski. Whatever is good in this book is owed largely to them.
There are several other colleagues and friends with whom I discussed various issues related to the subject of this book before and during its completion, and to whom I am very grateful: Bruce Ackerman, Susan Rose Ackerman, Richard Albert, Leszek Balcerowicz, Jack Balkin, Stanisław Biernat, Paul Blokker, Adam Bodnar (who planted in my mind the idea of writing this book), Tom Gerald Daly, Andrzej Drzemczewski, Moshe Cohen-Eliya, Rosalind Dixon, Grzegorz Ekiert, Monika Florczak-Wątor, Lech Garlicki, Tom Ginsburg, Aleksandra Gliszczyńska-Grabias, Mark Graber, Jan T. Gross, Gabor Halmai, Samuel Issacharoff, Vicki Jackson, Ronald Janse, Dimitry Kochenov, Tomasz Tadeusz Koncewicz, Ewa Łętowska, Marcin Matczak, Jan-Werner Müller, Gerald Neuman, Phillip Pettit, Robert Post, Rick Pildes, Jiri Priban, Adam Przeworski, Michel Rosenfeld, Andrzej Rzepliński, Kim Lane Scheppele, Robert Schuetze, Eugeniusz Smolar, Gila Stopler, Anna Śledzińska-Simon, Joseph Weiler (who insisted that the book should be very short—advice I tried to heed) and Jan Zielonka.
Special, everyday support was given to me by Anna, Alan and (in his own, inimitable way) Pikuś—and I am very grateful to them, too.
An early version of a part of Chapter 3 was published by the Hague Journal on the Rule of Law in 2018, DOI: 10.1007/s40803-018-0078-1—and I am grateful to the Editor, Professor Ronald Janse and Publisher, T.M.C. Asser Press, The Hague, for their kind permission to include a rewritten and updated version here. Earlier versions of some observations and accounts of developments scattered throughout this book were included in my chapter in Mark A. Graber, Sanford Levinson, and Mark Tushnet’s (eds), Constitutional Democracy in Crisis? (OUP 2018), and I am also very grateful to the editors of that volume and to the publisher for their permission to use some of that material.
Acknowledgements
Czesław Miłosz wrote, addressing himself to the rulers:
Do not feel safe. The poet remembers. You can kill one, but another is born. The words are written down, the deed, the date.6
Many professional lawyers and legal scholars, in Poland and elsewhere, are doing the poet’s work today. Some of the most formidable activists are in the teams named ‘Wolne sądy’ (Free Courts) and ‘Archiwum Wiktora Osiatyńskiego’ (Wiktor Osiatyński Archive). They make sure that everything is ‘written down, the deed, the date’. I dedicate this book to them.
6 Translated by Richard Lourie. Excerpt from ‘You Who Wronged’ from The Collected Poems 1931–1987 by Czeslaw Milosz. Copyright © 1988 by Czeslaw Milosz Royalties, Inc. Reprinted by permission of HarperCollins Publishers.
Anti-constitutional Populist Backsliding
A dramatic change in Polish politics occurred after 2015, not as a result of a coup, but through a takeover by democratically elected politicians by and large playing by the democratic rules of the game. It started with two national elections. The first was the presidential election on 10 and 24 May 2015 that was won marginally (51.55 to 48.45 per cent) and unexpectedly by the Law and Justice (Prawo i Sprawiedliwość (PiS)) party candidate Andrzej Duda—a young and largely unknown political newcomer. The only pre-presidential public offices held by Duda were as member of the European Parliament, deputy minister of justice, and minister for legal issues in the office of President Lech Kaczyński. He was hand-picked by PiS leader Jarosław Kaczyński who, according to all accounts, did not want to run because most people expected a solid victory by the incumbent, Bronisław Komorowski, supported by the Civic Platform (Platforma Obywatelska (PO)) party, but who had run an apathetic, chaos-ridden campaign. The second step occurred soon after: in the parliamentary elections of 27 October 2015, with just 37.5 per cent of the vote (and 18 per cent of all those eligible to vote, with a voter turnout of only 50.9 per cent), PiS won with an absolute majority of five seats, giving it the authority to govern single-handedly. It ended the two-term, eight-year domination by the centrist-liberal PO, ruling in coalition with the politically moderate Polish Peasants’ Party (Polskie Stronnictwo Ludowe (PSL)).
Victorious populism in Poland is part of a broader surge of populism worldwide, and more specifically in Europe, with populism being in turn a species of a broader phenomenon of general global discontent with liberal democracy in recent years. From 2000 until 2017, the number of populist parties in Europe almost doubled, from thirty-three to sixty-three, and the share of the vote for populist parties reached 24.1 per cent (or 17.7 per cent if one considers right-wing populism only) while in 2000 it was only 8.5 per cent. This trend has been particularly pronounced in Central and Eastern Europe (CEE) where, between 2000 and 2017, populists’ vote share tripled, reaching more than 31 per cent in 2017, with five of every six populist votes going to the far right. The populist impact has been registered not only in the populist parties entering into ruling coalitions as junior partners (as in Austria and Switzerland), but also, as in the Netherlands, in the influence of their programme upon mainstream parties that, in order to compete for the vote, have gravitated towards populist agendas, such as anti-immigration policies and the protection of cultural or religious purity. In countries traditionally
considered liberal and tolerant, populist parties have succeeded in becoming the country’s second largest (as in Denmark) or third largest (as in Sweden).
But the Polish and Hungarian cases are different. Nowhere else in Europe did populist parties manage to dismantle the institutional system of checks and balances. In some countries (such as the UK Independence Party in the United Kingdom or the Freedom Party in Austria), populists did not even display any particular illiberalism when it came to the constitutional structure of government. The Hungarian-Polish assault upon constitutional checks and balances is special, and more specifically, Poland is unique in its ostentatious disregard for its own formal constitutional rules.
The Dimensions of Polish Constitutional Breakdown
The scope of the change after the twin 2015 victories in Poland was as huge as it was unexpected. In an article published at the beginning of 2016, and so written in 2015, two British scholars opined that ‘Hungary’s slide toward semiauthoritarianism is arguably an exceptional case reflecting a specific combination of a restrictive conservative-nationalist right wing, strongly majoritarian institutions, and economic recession.’1 The failure to include Poland into the ‘to watch’ list was understandable. No economic or political crisis of major proportions preceded the populist takeover: to the contrary, after the fall of communism, Poland had enjoyed a six-fold increase in gross domestic product, and was the only country in the European Union (EU) that did not experience negative growth as a result of the global recession of 2008. The country’s longing for embeddedness in supranational structures was met by membership in the Council of Europe, the EU, and the North Atlantic Treaty Organization (NATO), and the government changed hands six times since 1990, thus showing the exemplary characteristics of democratic alternation of power.
PiS had already experienced a previous episode of rule, in 2005–7, which to some extent prefigured the current regime (see Chapter 2). There were, however, three major differences that characterized the 2005–7 episode compared to that commencing in 2015. First, as the dates indicate, it was very short and, at the time, PiS clearly lacked any earlier experience of government—an experience that would teach PiS a lesson, which it clearly relied upon in 2015, that once you come to power, you need to introduce all the radical projects right at the start of the term. Second, PiS in 2005–7 did not have an independent majority, and was constrained in its rule by coalition partners, such as the Self-Defence (Samoobrona) and the League of Polish Families (Liga Polskich Rodzin (LPR))—a factor that exerted a gravitational pull upon PiS towards the centre of the political spectrum. Both Samoobrona and the LPR were parties of the populist right, so in order to distinguish itself PiS naturally gravitated towards the centre. By contrast, today there are
no serious PiS rivals on the right, so there are no strategic disincentives for PiS to adopting radical right-wing positions. The third difference has to do with personalities. Lech Kaczyński, Jarosław Kaczyński’s twin brother, was president at the time, and had a clearly moderating effect upon Jarosław. But for all these differences, the 2005–7 episode foreshadowed what was to happen with the next victory of PiS.
No time was wasted in 2015. The end of the year witnessed the beginning of a fundamental authoritarian transformation: the abandonment of dogmas of liberal democracy, constitutionalism, and the rule of law that had been so far taken for granted. And even if, as is usually the case, the practice of implementing these principles was far from perfect before the PiS victory, there had at least been a widespread consensus that these values were standards to be pursued. With the suffocating command of Jarosław Kaczyński over all centres of political power, these principles were abandoned in 2015, ostensibly in the name of a purely majoritarian democracy, and of the ‘sovereign’ people having a right to rule as it wishes. The use of the ‘sovereign’ as a legitimating factor became widespread, often reaching almost grotesque forms. In a newspaper interview, when asked about whether he liked PiS’s changes to the constitutional court, the Constitutional Tribunal (CT), Mr Maciej Mitera, one of the judge-candidates to the ‘new’ National Council of the Judiciary (Krajowa Rada Sądownictwa (KRS)) and later its spokesperson, answered: ‘If the representatives of the sovereign decided so, I submit myself to it.’2 The ‘will of the sovereign’, expressed allegedly through an electoral choice (‘winner takes all’), was declared a fundamental legitimation for a general transformation of the state (even if many of its aspects had not been announced in the electoral campaign) and as a reason to downplay checks and controls upon the executive and legislative branches. PiS’s campaigns against first the CT and later the regular courts have rested upon the idea that any restraints upon the political majority are by their nature anti-democratic.
Victor Orbán’s Hungary was declared the model to emulate, with Kaczyński promising ‘Budapest in Warsaw’ as its goal,3 and the copycat effect should not be underestimated. It is fair to describe PiS rule so far as ‘an accelerated and condensed version of what the ruling Fidesz party has accomplished in Hungary since 2010, when Viktor Orbán began his second stint as prime minister’.4 Indeed, the trajectory of Fidesz and PiS have followed a similar pattern. Both began as reasonably mainstream parties regarding themselves initially as moderate parties of the establishment, only later embarking upon radical shifts towards right-wing, conservative, and nationalistic populism, emphasizing sovereignty of the nation especially against larger EU structures and, at the same time, the exclusion of migrants. The sequence of the main ‘reforms’ in Poland in many respects closely parallels that in Hungary a few years earlier:
• fast-tracking of radical legislative changes; attacks on non-governmental organizations (NGOs)
• new media legislation
• disempowering and capturing the Constitutional Court; removal of the ‘old’ judges (of ordinary courts) by lowering the retirement age
• specific attacks on the chief justices of the respective Supreme Courts
• restructuring of the KRS through the politicization of its selection; altering the membership rules of the electoral commission with the effect of giving the ruling party control of the commission
• identifying the EU as a foreign, hostile entity which illegitimately interferes in the internal affairs of its member states.
In late 2017 a leading Polish journalist assessed the situation:
Orbán’s state is Kaczyński’s Poland as it will be in 5 years’ time, because he ruled Hungary that much longer than PiS. In this period Orbán captured the supreme court and ordinary courts, got rid of the National Council for the Judiciary, set up an Office of National Media, and devoted [state] budget money to finance propagandist public TV. The last five independent newspapers were taken over by the Prime Minister’s people in August 2017. Advertising campaigns targeting political rivals are financed from public money. NGOs have fallen under state control, and electoral rules have been changed. . . . And the society? Over 40 percent still support Orbán. The Prime Minister has effectively scared the Hungarians by an alleged threat of invasion by immigrants . . . 5
Still, there are important differences between the two cases. Most important, thanks to Fidesz winning a constitutional majority, there was formal constitutional change in Hungary, which made it possible ‘to transform the constitutional order and slide into some form of authoritarianism entirely through legal means’,6 with no such change or amendment available to Kaczyński. The new Hungarian Constitution—adopted in great haste and protected by a requisite two-thirds majority for changes—is deeply ideological, emphasizing conservative and Christian values, and is meant to constitute a quasi-sacred charter7 of Orbán’s self-avowed illiberal democracy: a symbolic and political asset that Kaczyński in Poland lacks. There are also other differences:
• political power in Hungary is much more embedded in the economic power of ultra-rich oligarchs than in Poland (leading to the label of Hungary as a ‘mafia state’)8
• Orbán is pro-Russian while PiS is ostentatiously anti-Russian; Orbán (whose party is a member of the European People’s Party in the European Parliament, while PiS is in the European Conservatives and Reformists group) acts more pragmatically in EU fora than PiS
• Polish centrist opposition is much stronger than the Hungarian opposition, and in Poland there is no strong party alternative any further to the right (like Jobbik in Hungary) that exerts right-wing pressure on the ruling party
• the Church is dominant and has a strong political influence in Poland, but not in Hungary
• commercial independent media are strong in Poland but weak in Hungary.
While individual aspects of Polish backsliding may have their counterpart in this or that democratic state, what makes Poland such a troublesome case is the comprehensiveness and the cumulative effect of the ways in which liberal democracy is being undone. Rather than carefully sequencing the changes and applying them seriatim, thus giving the system an opportunity to neutralize their effects, ‘reforms’ have been enacted more or less simultaneously, or at least through incremental changes where the timing of one change overlapped with another, and yet another. A question (articulated by a legal scholar with regard to a different constitutional system) could have been raised: ‘Could steady pressure against all these institutions, all at once, cause them to crumble because they cannot rely on one another for support?’9 In the case of Poland post-2015, the answer was, unfortunately, affirmative. A virus in a sick body reinforces pathologies in other parts of the body, while a virus in a healthy body is likely to be disabled from having a detrimental effect. A single illiberal change does not provoke a major breakdown if it takes place in the environment of a general liberal constitutional context. In Poland, however, it is a populist offensive tous azimuts: an all-out assault on liberal constitutionalism. And it is systemic: individual elements are functionally connected with the others. For instance, the paralysis of the CT was a prerequisite for the adoption of illiberal laws made immune from effective constitutional scrutiny. These illiberal laws, for example, on the right to assembly, make it more difficult to protest against capture of the CT. In this way, the sum is more than its parts. There is analogy here to Mark Tushnet’s description of Singapore’s authoritarian constitutionalism. He constructs the useful figure of ‘a fallacy of decomposition’ where ‘the components lack a property but the aggregate might have it’; he also uses the concepts of ‘a “slice and dice” or disaggregated approach’ which, with regard to the analysis of Singapore’s authoritarianism, ‘is almost certainly inappropriate’.10 The same can be said about Poland. At the same time, the fact that some individual legal provisions may exist in isolation from other problematic arrangements and practices in some unimpeachably democratic states is a powerful rhetorical instrument for regimes such as in Poland, and also imposes constraints upon critics, including those abroad. Foreign political actors may be loath to condemn democratic backsliding ‘if such practices enforce laws that exist in their own legal systems, lest they be criticized as hypocritical’.11
The change can also be incremental even if it occurs quickly. So it is often difficult to identify a precise tipping point: no single new law, decision, or transformation
seems sufficient to cry wolf. Only after the fact do we realize that the line dividing a liberal democracy from a fake one has been crossed: threshold moments are not seen as such when we live in them. As Aziz Huq and Tom Ginsburg note: ‘The precise point . . . at which the volume of democratic and constitutional backsliding amounts to constitutional retrogression will be unclear—both ex ante and contemporaneously’.12 They add, using a grim metaphor: ‘Like the proverbial boiling frog, a democratic society in the midst of erosion may not realize its predicament until matters are already beyond redress.’13 And then it is beyond redress. This, as Huq and Ginsburg further observe, also makes any opposition to democratic backsliding less effective because there is usually no single event or governmental conduct that could mobilize the resistance by sending a clear signal ‘that democratic norms are imperilled’.14 In Poland warnings about the fall of democracy have often been received with incredulity, or with objections of being hysterical or paranoiac. The language of democratic collapse has been seen by some as inflated, disproportionate, and counterproductively eroding the emotional content, which may be warranted in some unspecified future. As Nancy Bermeo puts it: ‘slow slides towards authoritarianism often lack both the bright spark that ignites an effective call to action and the opposition and movement leaders who can voice that clarion call’.15 But the effect of these multiple ‘slow slides’, rather than a clarion call, might render an obituary in order.
Many democratic backslides occur without a formal change of institutions and procedures, so they are invisible to a purely legal account. As Gábor Attila Tóth remarks: ‘many such regimes ostensibly behave as if they were constitutional democracies, but, in fact, they are majoritarian rather than consensual, populist instead of elitist; nationalist as opposed to cosmopolitan; or religious rather than secular’.16 Institutions and procedures remain the same but their substance is radically changed by practice. For instance, parliamentary legislative procedures remain, formally, the same as before, but by adopting a scheme whereby all important governmental initiatives are proposed as private members’ bills, the requirements of consultations, expert opinions, and impact audits are dispensed with. There is a discussion in the parliamentary legislative committee, but with PiS having an absolute majority, and the opposition MPs being given, for example, one17 or two18 minutes for their speeches, the discussion is turned into a sham. In this way, the intended meaning of many procedures and institutions is eroded, and they are converted into façades. Institutions become hollow.19 Toutes proportions gardées, it is like in the state of the ‘people’s democracy’: there were ‘elections’, but without competition and choice; a ‘parliament’, but no opposition and no open debate; a ‘president’, but supreme power was elsewhere. There was even (in Poland after 1985) a CT, but it would not invalidate any laws that were important to the ruling elite. As a result, for an external observer the radical shift in the meaning of institutions, procedures, and roles may be invisible because they often remain, legally speaking, the same as before. As Martin Krygier observes, ‘One striking novelty of these new populisms
is that, while like most populists they undermine constitutionalism, they do so with often striking attention to the forms of law’.20 But these ‘forms of law’ are used, in practice, to undermine the underlying values of the rule of law, which are to constrain arbitrary use of unlimited power. Kaczyński is no Leninist: just like Orbán, he knows and skilfully uses the legitimating value of formal legality—except when the political costs of legality are found by him and his advisers to be too high.
This may be translated into a ‘Martian’s test’: would an intelligent and otherwise well-informed Martian, having for herself all the information culled only from the formal structures of government, and knowing none of the practice, discern the non-democratic character of the regime? Probably not; she would see all the institutions and procedures she knows from the democratic toolbox available to her. Ozan Varol uses the concept of ‘stealth authoritarianism’, that is, a genre of authoritarianism that faithfully uses various democratic structures for non-democratic purposes: ‘Stealth authoritarianism refers to the use of legal mechanisms that exist in regimes with favorable democratic credentials for anti-democratic ends’.21 For instance, representatives of stealth authoritarianism ‘employ seemingly legitimate and neutral electoral laws, frequently enacted for the purported purpose of eliminating electoral fraud or promoting political stability, to create systemic advantages for themselves and raise the costs to the opposition of dethroning them’.22
Another example applicable to the Polish case is that stealth authoritarians ‘rely on judicial review, not as a check on their power, but to consolidate power’.23 As I show in Chapter 3, this is precisely the use of judicial review that the PiS regime conferred upon the CT: rather than acting as a constraint upon the government, the tribunal has become a constraint upon the opposition and an active helper of the government. But, formally speaking, judicial review is there, and unless one ascertains the actual substance and arguments of the decisions taken, as our Martian is unlikely to do, one will not see a difference between democracy and stealth authoritarianism, even though there was no stealth, naturally, in the ways the CT was taken over. As Varol puts it, ‘[s]tealth authoritarianism creates a significant discordance between appearance and reality by concealing anti-democratic practices under the mask of law’24 and this discordance is a predicament suffered both by our Martian and, more often in the real world, by well-meaning foreigners, often not knowing the language, the context, and the actual substance of practices they observe from the outside.
This immediately indicates why even those genuinely committed to democracy and acting in good faith may be sincerely confused about what is going on in countries captured by stealth authoritarians: there are no tanks on the streets, political opponents are not tortured or imprisoned, and there is no prior restraint on the media. The institutions seem to function as before, and the Constitution is not necessarily voided. To ascertain the reality one must inquire into the meanings of public actions, into the pedigree and character of actual persons who occupy key positions, and into how they are dependent upon a hierarchy of authority, at
the apex of which there is a leader unconstrained by constitutional rules. ‘Elected autocrats maintain a veneer of democracy while eviscerating its substance.’25 Understanding this substance takes time, effort, and requires certain skills, including knowing context, path dependence, and language.
Backsliding is all the more difficult to discern since many reforms are presented as a defence of democracy rather than a subversion. By returning obsessively to the figure of the sovereign who has elected a party to a parliamentary majority, the rulers claim a democratic legitimacy for dismantling the counter-majoritarian checks and balances in the system. By subjecting the election of judges to parliamentary control, PiS alleges that it is actually introducing more democratic mechanisms than those that were in place so far. By electing CT judges known for their pro-PiS political views, PiS alleges that it is imbuing the tribunal with better representation of actual societal preferences.
The institutional changes discussed in this book are a part of a broader populist syndrome in which a key role is played by a catastrophic drop in the norms of civility of discourse, with an accompanying loss of trust. When government’s opponents are treated as traitors and haters of their own nation, they feel that they have no choice but to respond in kind, and reciprocate with accusations of similar intensity. As a result, there are no shreds of mutual respect, or of the recognition that, while the government and the opposition differ in their interpretation of the public good, they are equally sincere in the quest for common interest. What is missing is mutual self-restraint, in which (in the words of János Kis in the Hungarian context):
the party in opposition can safely expect the party in government to refrain from taking advantage of its majority in order to permanently exclude its rival from power, while the party in government can safely expect the party in opposition not to strive toward debilitating day-to-day governance.26
No such mutual expectations, which are a key to democratic governance, exist in Poland now. Both sides deny legitimacy to each other: the opposition is seen by PiS as treacherous and non-patriotic and hence undeserving of ever returning to power, while PiS is viewed by its opponents as having transgressed the minimal conditions of democratic legitimacy. Jack Balkin’s words written about the United States under President Donald Trump also apply to Poland: ‘People not only lose trust in government but also in other people who disagree with them. Political opponents appear less as fellow citizens devoted to the common good and more like internal threats to the nation.’27 Polish politics is polarized along lines so fundamental that loyal cooperation between the main parties for a higher good is unthinkable these days. Supporting a party has become more a matter of essential identity than of policy preferences. As political scientists know all too well,
a low level of interpersonal trust is a favourable background for antidemocratic backsliding.28
This mutual distrust between the parties and the electorates radiates upon (and is partly reflective of) a more general societal distrust in politics and public institutions. Poland has one of the lowest levels of party membership in Europe (approximately 1 per cent of the adult population, compared to 2.3 per cent in Germany and 3.8 per cent in Sweden). Voters’ party loyalties are extremely shallow and devoid of strong commitments: for instance, 18 per cent of those who voted in 2011 for the Democratic Left Alliance transferred their votes in 2015 to the vehemently anti-communist right-wing PiS. The dominant form of societal mobilization in recent years was single-issue protests, which were often episodic and non-institutionalized (e.g. about Anti-Counterfeiting Trade Agreement, an anti-abortion legislative initiative). Moreover, those protests did not translate into increased support for opposition parties. In the words of the sociologist Maciej Gdula, ‘It is as if the opposition parties and society did not interact with each other. . . . It is as if the enthusiasm and energy of the protests did not match the actions and words of the politicians.’29 Such strong rejection of institutional politics creates a favourable social ground for anti-constitutional populism: when institutions matter so little, it is no wonder that the institutions that are there turn out not to be resilient in the face of a resolute and energetic assault.
The level of political distrust in Poland is catastrophic—distrust in politicians, parties, institutions, and other fellow citizens (paraphrasing a line in The Economist after the 2016 US election, one could say that ‘Half of Poland can scarcely believe that the other half has chosen PiS’).30 Whatever the roots of this distrust, it has been used largely by PiS as a political-sociotechnical device aimed at returning to power. After the air crash of 2010 (discussed in Chapter 7) that killed a number of Poland’s most prominent political figures, PiS provoked mass hysteria by pointing fingers at leading politicians of the time as guilty of a conspiracy, as well as warning that they would be prosecuted after the political changeover. The party’s allegations without any evidence that the outcomes of elections had been systematically rigged served to magnify cases of corruption out of proportion to further undermine trust in the government, and they did. The generalized distrust towards politics gave rise to an attitude of ‘symmetrism’ (this is what the West used to call, before the fall of communism, moral equivalence): PiS may be bad, but its predecessors in power were not much better, so why bother fighting for the replacement of one with the other? This is yet another powerful, if only negative, source of PiS’s persistently good rankings in opinion polls, and the unlikelihood of a ‘Polish Macron’ (an idealized figure standing for a genuine pro-European, liberal-democratic saviour against illiberal, populist and nationalistic forces) emerging in the foreseeable future.
This deep distrust is partly driven by the continued mass deception propagated by ruling party politicians. Prime Minister Mateusz Morawiecki, in office since late 2017, excelled at telling regular lies, and the fact-checking media have had a field day. Some examples of overt lies publicly uttered by Morawiecki are:
• that he had been personally responsible for negotiations on Poland’s accession to the EU (in fact, he was just a low-ranking member of a large team in charge of accession negotiations at the time)
• that when he was the CEO of a bank, that bank never granted loans in Swiss Francs (in fact, it did; the matter is highly sensitive in Poland)
• that 80 per cent of the Polish media belongs the government’s enemies (a number never explained, and wildly implausible)
• that he reduced central government bureaucracy (not true: his government had a record number of secretaries and under-secretaries of state, but some of them were transferred to the fictional position of ‘councillor’ in order to make the statistics look better), and so on.
Similarly, among other examples, in December 2017, President Duda announced that the work of the CT was now ‘back to normal’ (not true; as shown in Chapter 3, the number of judgments are much fewer than under the previous presidency of the CT).31
The other dimension of Poland’s post-2015 transformation is the active, deliberate, ideological, and cultural ‘counter-revolution’ that is displayed not only in official declarations but also in actual governmental acts.32 While it does not amount to any comprehensive ideological platform for PiS rule, it is nevertheless quite clear that the elected authoritarians have an agenda that is anti-modernist, anti-progressivist, and anti-liberal. A number of offices and programmes to combat discrimination were discontinued as soon as PiS came to power. For instance, in June 2016, just over six months after its electoral victory, PiS extinguished the governmental Council for Counteracting Racial Discrimination, Xenophobia and Intolerance. Significantly, this happened at a time when there had been a clear rise in acts of violence—verbal and physical—against non-whites in Poland. Public schools ceased to accept visitors from NGOs running workshops against intolerance and xenophobia while also opening their doors to radical nationalistic groups such as the neo-Nazi National-Radical Front (Obóz Narodowo-Radykalny (ONR)). The government stopped subsidies for civil society activities such as the so-called Blue Line, a phone-in for young persons in desperate psychological situations, often on the verge of committing suicide. In turn, governmental subsidies were generously conferred upon religious and right-wing groups, such as the network of organizations connected with Catholic-fundamentalist Radio Maryja. In their public, official statements, leading PiS politicians appealed to traditional and conservative values while distancing themselves from liberal and progressive ideologies.
This was grotesquely articulated by Witold Waszczykowski, minister for foreign affairs until early 2018, who ridiculed ‘a Marxist pattern’ according to which the world is supposed to move towards ‘a new mix of cultures and races, a world of bicyclists and vegetarians’.33 Somewhat less comically, during a March 2016 state visit to Hungary, President Duda deplored the crisis ‘of the values on which European civilisation was built . . . that has Latin roots and is based on the stem of Christianity. . . All these ideals in today’s Europe are being lost, are being forgotten and trampled on by other ideologies that in fact distort the essence of humankind and humanity.’34 Similarly, in one of his first TV interviews after elevation to the office, Prime Minister Morawiecki asserted that Poland has a mission of ‘reChristianising Europe’.35 All these manifestations of cultural counter-revolution have been enthusiastically promoted in public education, public media, and the pro-PiS commercial media.
The cultural counter-revolution led by PiS is connected with a significant reorientation of Polish foreign policy. In general, foreign policy is much more at the mercy of domestic policy than it was before; as some experts in the field noted, ‘[u]nlike any other post-1989 government, the PiS administration treats foreign policy as secondary to domestic objectives’.36 Re-orientation has affected official arguments about the strong alignment of Poland with the West. Since the 1989 transition, all governments and also all parties in power have emphasized an unconditional ‘return to Europe’ as the strategic trajectory of an independent and democratic Poland, accompanied by a strong hostility towards placing Poland in a sort of ‘twilight zone’ between East and West, with uncertain security commitments from foreign powers. But this rhetoric was embedded within a broader package of ideological commitment to liberal, constitutional democracy, to universal human rights, and generally, to the ideal of an ‘open society’. Now that these fundamental ideological commitments have been challenged and largely rejected by the ruling elite, Poland’s pro-Western orientation has also been put into question. As a report by an influential think-tank observes:
For the first time since 1989 the government and party in power are not only making use of or emphasising the language of national egoism, but also antiWestern rhetoric (occasionally strongly so). It is aimed squarely at those values and principles which were meant to be the anchor of Poland’s presence in the EU according to the philosophy of its integration, beginning in the ‘90s.37
This anti-Western orientation is undergirded by the ruling elite’s condemnation, supported by a large part of the population and in particular by the Catholic Church, of Western ‘decadence’ in its respect for procreative rights (defined by the traditionalist right in Poland as manifesting the ‘civilization of death’), and toleration of same-sex unions.38 The fact that many Poles, especially those who are pro-PiS, are at the same time strongly anti-Russian prevents these attitudes from
