Democratic Backsliding Likely to Accelerate Following Polish Elections

Polish President Andrzej Duda celebrates victory in Sunday's elections.

Jacob Kostrzewski. Jacob is the Program Coordinator for the International Rule of Law and Security Program. He holds a Masters in Foreign Service from Georgetown University. Jacob speaks Polish fluently and spent 12 years living in Poland.

Poland’s seventh presidential election since the fall of communism in 1989, held on July 12, was noteworthy for several reasons. The turnout was unusually high: 68.18% of eligible voters cast their ballots amid the ongoing coronavirus pandemic, a near-record eclipsed by a mere 0.05 percentage points by the 1995 election and significantly higher than the average turnout in recent years. It was also the closest election result in Poland’s history, with only two percentage points separating the winner from the loser. Most critically, the stakes for Poland’s democracy could not have been higher. The time to save Poland’s independent institutions and democratic state is “now or never,” warned the losing candidate, Rafal Trzaskowski, a few days before the election. With the reelection of President Andrzej Duda by the slim margin of 51% to 49%, Poland’s democratic institutions are likely to face their most challenging time yet.

Rule of Law Under Attack

Ever since Poland’s right-wing, nationalistic Law and Justice (Prawo i Sprawiedliwość, PiS) party won a majority in the 2015 parliamentary elections and incumbent President Duda, then (but no longer) a member of PiS, won his first presidential term that same year, the party and the president have worked in tandem to dismantle Poland’s democratic tradition and institutions.

First came the attack against the Constitutional Tribunal, Poland’s equivalent of the U.S. Supreme Court, in late 2015. President Duda illegally refused to swear in five judges appointed to the Tribunal before the parliamentary elections by the opposition Civic Platform (Platworma Obywatelska, PO) party. Following the elections, the PiS-controlled Sejm (Parliament) then unconstitutionally voided PO’s appointments and selected their own judges, which were then sworn in by President Duda. Two months later, President Duda signed a law granting the government the right to appoint heads of public broadcasters, thereby eliminating their independence and turning them into government mouthpieces. In their first months in power, PiS and President Duda’s undemocratic changes gave a preview of the years to come.

With subsequent attacks against Poland’s democratic institutions and laws granting rights to different segments of the population, recourse available to Poles fighting to save their democracy and to international institutions of which Poland is a part, such as the European Union (EU), has been limited. Polish civil society organizations, such as the Polish Helsinki Foundation for Human Rights and the Stefan Batory Foundation, have published well-documented and researched reports in English, with concrete recommendations for international actors on steps they could take to help Poland’s democracy. The PiS government, however, decries any Pole who criticizes the government’s actions as being “insufficiently Polish” or “unable to call themselves a true Pole.” Not only has domestic criticism of the government been stifled by Poland’s media laws, but also PiS lawmakers themselves regularly launch vitriolic attacks on their political opponents in attempts to discredit and silence them.

Where Is the European Union?

PiS and President Duda’s attacks on Poland’s democracy are well known and documented abroad; however, the mechanisms available to compel Poland to change its ways have been limited and unsuccessful. As an EU member state, Poland has obligations under the Treaty on European Union to respect rule of law and democracy. Poland’s repeated, blatant disregard of its treaty obligations has led the European Union to issue multiple warnings to Poland to cease its undemocratic actions or face disciplinary consequences, including the triggering of Article 7 of the Treaty on European Union, often dubbed the EU’s “nuclear option,” which can strip a member state of its voting rights.

The PiS government, however, repeatedly shrugged off the EU’s warnings as attempts to meddle in domestic affairs, with President Duda telling a crowd of his supporters that the EU “won’t impose on us – in foreign languages – how to manage Polish matters.” The PiS government also knows that the Article 7 “nuclear option” lacks much charge, as it requires unanimity among the EU’s 27 member states to be invoked. Hungary, where the assault on the rule of law under Prime Minister Viktor Orbán’s Fidesz party is entering its second decade, has already pledged to veto any EU sanctions against Poland. The EU, therefore, has little recourse available to correct member states that have entered the bloc as democracies but have since reneged on their treaty obligations to respect the rule of law.

Mixed Success Domestically

The PiS government’s assault on democracy has been met with fierce opposition domestically, both from opposition lawmakers and from concerned citizens. With control of the presidency and a majority in the Sejm and not much dissent from within the party, however, PiS has been able to ram legislation through parliament with little input from others.

Many Poles have refused to sit quietly and watch their democracy and human rights be dismantled. Early 2016 saw the largest anti-government demonstrations since the fall of communism, with nearly a quarter-million protesters taking to the streets in Warsaw alone to protest PiS’s assault on democracy. These protests have been largely unable to compel PiS to change its ways, however. When hundreds of thousands protested various iterations of judicial changes and the strangling of independent media, PiS lawmakers ridiculed the demonstrations and forged on with their undemocratic measures.

But pro-democracy protests have been successful on one occasion. When the PiS government attempted to pass a law that would have banned nearly all abortions in the country, they were met with weeks of sustained protests that culminated in a one-day nationwide strike in which close to 200,000 people participated. PiS’s reaction was, and continues to be, unprecedented: its leader affirmed that the “social situation” (meaning the mass, sustained demonstrations and strike) made passing the law impossible. The law ultimately failed in the Sejm by a vote of 352-58.

Sustained Democratic Backsliding

The presidential election this weekend, however, all but solidified a continuation of democratic backsliding in Poland. With presidential elections five years apart and the next parliamentary elections scheduled for 2023, PiS and President Duda have a clear road ahead to continue their attacks on Poland’s democratic institutions. The EU, preoccupied with the ongoing coronavirus pandemic and having had little success in its past attempts to rein in Poland’s undemocratic changes, will likely not be able to do much more than voice its opposition to whatever is coming next. The pandemic has moved many anti-government protests online, and it remains to be seen whether protesters can secure another victory against the government through civil disobedience.

Pro-democracy Poles have reason to be cautiously optimistic, however. PiS only narrowly retained their majority during the 2019 parliamentary elections, losing five seats amid record turnout for parliamentary elections. Last weekend’s high election turnout and close result indicate that while PiS retains support among many, its attacks on human rights and democratic institutions have galvanized pro-democracy activists and voters in the country.

Three years is a long time, however, and an unencumbered PiS and President Duda will have many opportunities to continue their work undoing the democratic progress Poland has made since the fall of communism. Poles and their pro-democracy allies abroad will need to remain vigilant and continue to make their voices heard in the Sejm, online, and in the streets. Freedom and democracy, hard-won only 31 years ago, are at stake.

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