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The results of its recent parliamentary elections indicate that Poland has returned to the democratic path. However, dismantling the illiberal system built by the previous government will pose many challenges for the new one, which will have to legislate amid the threat of a presidential veto, a lack of societal consensus on crucial issues, and intense polarization.

Marta Żerkowska-Balas

December 13, 2023

 

In the recent parliamentary elections in Poland, the electorate displayed resilience. Despite the Law and Justice (PiS) party’s efforts to compromise the integrity of the electoral system, people exercised their democratic right to vote out the party that failed to meet their aspirations. The inherent advantages for PiS as the incumbent party, such as substantial campaign funding (comprising officially designated electoral funds and a broad swath of public finances) and dominance over state-run media, did not secure an electoral win for it. The party’s strategy to align the elections with a referendum, primarily to galvanize a specific section of its support base, also fell short of expectations. As a result, PiS received the highest number of votes but not enough to secure a parliamentary majority. Instead, the opposition coalition of Civic Coalition, Third Way, and New Left, emerged as the new majority.

 

A Delayed Start for the New Government

The ousting of the illiberal PiS regime does not automatically mean a swift return to liberal democracy for Poland, however. First, the president and the outgoing government exploited all constitutional deadlines and mechanisms to delay the handover of power, although PiS had no prospect of forming a new governing coalition. President Andrzej Duda, aligned with PiS, asked the outgoing PiS prime minister, Mateusz Morawiecki, to form a new government. In the meantime, Civic Coalition, Third Way, and New Left signed a coalition agreement and waited until the parliament voted on a new prime minister on December 11 and appointed their candidate, Donald Tusk.

 

Key Challenges to Tackle

The first task facing the new government will be to restore horizontal accountability. Poland experienced a collapse of the separation of powers after PiS came into power in 2015. The executive branch increasingly dominated the legislative and judicial branches. Undermining the latter’s autonomy was a goal of the PiS-led government from the moment it entered office. The Constitutional Tribunal was among the first institutions to come under attack, with PiS-nominated members replacing those chosen by the preceding government. This move, coupled with constraining its decision-making powers, effectively incapacitated the tribunal. The Supreme Court, too, was restructured, with many of its judges coerced into early retirement to pave the way for political appointees. These changes were paralleled by an extension of the Ministry of Justice’s powers, which included merging it with the General Prosecutor’s Office and unifying the positions of the minister of justice and the general prosecutor. Moreover, PiS appointed a decisive majority in the National Judicial Council, a body pivotal for judicial nominations, and established dominance over the Tribunal of State, which ensures that government bodies and officials are held responsible for breaches of the constitution or laws related to their roles or duties. Consequently, the judiciary was subjected to complete parliamentary control. This facilitated overreach by the government, which it often legitimized by arguing that it was acting in the name of the people whose ability to enact their will had been previously limited by the checks imposed by the judicial branch.

In a two-month interim period after the elections, PiS continued to enact measures intended to obstruct efforts by the next government to restore the legal order. These included introducing changes to the regulations of the State Tribunal and the Supreme Court as well as nominating new, loyal judges to solidify the politicization of legal institutions. Against this backdrop, it will be fundamental for democracy to rebuild a balanced system with mutual constraints not limited to the three branches of government but also extending to oversight bodies such as the central bank, administrative agencies, budget offices, and agencies overseeing health, safety, financial markets, and environmental standards.

The full restoration of political rights and civil liberties is also imperative. The Helsinki Foundation’s report highlights the most pronounced decline in human-rights protection since 1989 under the PiS regime between 2015 and 2019, a trend that continued to intensify in the subsequent years of PiS governance. The report emphasizes concerns beyond fair trials, curtailed freedom of speech, limited access to information (mainly due to the politicization of the public media), restrictions on assembly and association rights (among other things, because of the marginalization of nongovernmental organizations), and infringed rights of vulnerable groups such as LGBT individuals, foreigners, and women. PiS politicians exploited fears of the first two groups in society, especially during the electoral campaigns in 2015, 2019, and this year. The party stoked negative emotions and fear toward migrants and refugees coming to Europe. As a result, there was a notable increase in hate crimes in Poland against those seeking international protection. Additionally, LGBT individuals were portrayed as a threat to Poland that needed to be countered. One major action against this group consisted of anti-“LGBT ideology” resolutions passed by PiS politicians in local government. Regarding women’s rights, the tightening of abortion laws was the most prominent issue. The PiS government attempted to tighten the abortion law in 2016, but the bill was abandoned after women protested across the country. The topic resurfaced in 2020 when the Constitutional Tribunal ruled that access to abortion based on the premise of “severe and irreversible fetal impairment or incurable illness threatening its life” was unconstitutional. Reversing all such actions and regulations will be particularly challenging due to the high level of negative emotions involved and the lack of societal consensus regarding preferred solutions.

The third task for the new government is to mitigate the polarization currently prevalent in society and bridging existing divides. A high level of polarization poses the risk of illiberal forces returning to power. Societal divisions along political, ideological, and identity lines increase the risk of radicalizing existing parties and creating space for new anti-systemic players. Depolarization is particularly challenging, considering the deep-rooted divisions based on economic and cultural disparities in society between the “losers” or “winners” of societal transformations. Such divisions align with attitudes toward wealth redistribution, the inclusiveness of communities, and the spectrum of conservative to liberal views.

 

A Bumpy Road Ahead

These three tasks will undoubtedly require revising or overturning legislation—a formidable challenge for the new government. The depoliticization of the judiciary is a clear example. During the electoral campaign, the parties of the new governing coalition unanimously accentuated the imperative of judicial reforms. Key among their demands was the ousting of PiS appointees from the Constitutional Tribunal as well as depoliticizing the National Judicial Council and revisiting judgments passed by its current members. While various reform proposals are being considered, the majority of them necessitate legislative or constitutional changes. These surely will be hampered by President Duda, who can veto legislation and challenge the constitutionality of laws. To overturn a presidential veto, 276 votes are needed in the 460-member Sejm. With the new government having only a majority of 248, passing legal amendments that counter the interests of PiS appears unlikely.

The restoration of civil rights and freedoms might face not only legal but also societal challenges, mainly when there is no agreement on issues like LGBT rights, abortion, or the acceptance of migrants and refugees. Given the existing divisions, changing the societal perception of groups that have been portrayed as hostile or threatening to Poland and ensuring the broad acceptance of reforms could be a prolonged process. For example, abortion will be a significant challenge for the new government as the issue is highly divisive for society and politicians. The absence of this issue in the government coalition agreement has already met with widespread criticism, especially among women’s rights organizations and in left-wing circles.

Confronting the ideological and emotional polarization exacerbated by PiS’s divisive rhetoric also poses distinct challenges. Since 2015, there has been a growing societal divide between two camps representing contrasting values: one traditional, Catholic, and nationalist (aligned with PiS), and one liberal, secular, and cosmopolitan (associated with the new governing majority). These opposing value systems, which underpin the identity of the respective political factions, makes compromise seemingly impossible as it is perceived as a threat to deeply held values. Reaching an agreement will be all the more challenging because of intense emotions, fueled by partisan traditional media (with the main divide being between the public television, TVP, that has been PiS-controlled and one of the most popular private televisions, TVN, that has been supportive of the pro-democratic parties) and amplified by digital echo chambers. These expose people to perspectives that reflect only their own, reinforcing their convictions and limiting their outlooks.

Poles expect the new government to repair democracy. It can demonstrate its democratic commitment through a series of actions that do not require legislative changes, such as personnel changes, investigative committees, or a depoliticized prosecution service. Additionally, it can undertake legislative initiatives even if they are doomed to fail. But guiding Poland back to the fold of liberal democracies involves more than just policy adjustments. It demands a societal shift in comprehension and compassion. It will test the country’s resilience and the capability of its leadership to foster unity amid deep-rooted divides.

 

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Marta Żerkowska-Balas is an assistant professor in the Center for the Study of Democracy of the SWPS University in Warsaw.

The AUTHLIB consortium does not take collective positions. Publications only represent the views of their individual authors.

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Photo credit: Grand Warszawski via Shutterstock

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