Democratic backsliding is increasingly becoming a concern in Eastern Europe, with some countries being issued harsh warnings from the European Union (EU). In the last three years, Poland has seen gradual, but clear, signs of backsliding toward autocratic policies and implementation through violation of clear democratic principles.
When we speak of democratic backsliding, we must first understand what makes a democracy. Aziz Huq and Tom Ginsburg from Vox define the three pillars of democracy as liberal policies on speech and association such that the government can be held accountable, free and fair elections, and that the rule of law must be firmly established; that is, the majority party cannot have the courts and bureaucracy under its control. When these principles begin to be invalidated, undermined, or otherwise subtly manipulated, it may lead to democratic backsliding or erosion of the democracy altogether. When we examine Polish politics, specifically those actions of the Polish Law and Justice Party (PiS) since the year 2015, it becomes clear that these three pillars in particular are being twisted and violated. Actions taken have sought to expand control over media, take control of the judiciary, and have begun to take direct aim at the election process, all to better consolidate PiS’s power over the whole of the government.
In the 2015 parliamentary election, the right-wing PiS party took control of parliament with a complete majority, a feat not done since the Fall of Communism. Immediately, party leadership sought to replace public radio station hosts and management, and over 140 employees have either been fired or resigned since. Annabelle Chapman on Freedomhouse.org states, “Since [the election], the public television station’s evening news program has become a mouthpiece for the PiS government, lauding its daily successes at home and abroad.” They’ve redirected advertising money to pro-government and state-owned companies, starving the opposition of needed ad revenue, and slowly pushing them out of business. This is a clear attempt to block vertical accountability and silence the ability of the opposition to make their voices heard. By undermining this tenet, the PiS government has clearly begun to violate the first pillar of democracy. By beginning to remove vertical accountability, they begin to loosen the people’s grasp on holding the government to its democratic core while strengthening their own power to control their own narrative. They have continued to try to expand this control through restricting journalistic access to lawmakers. Fortunately, protests were able to block this move; however democratic erosion in Poland does not end here.
Since its rise to power, the PiS has also expanded its control of the Judiciary. Upon winning the election in 2015, it immediately passed a law mandating five new justices to the Constitutional Court, term limits for the president and vice president of the court, and term limits for two sitting judges. Though the previous majority coalition (PO) had already appointed these 5 justice positions, they had remained unconfirmed, as the president stated they had been chosen, “in contravention of democratic principles.” The PiS party claimed that it would not allow the previous appointments to take place, that they contradicted law and the Polish Constitution. The Constitutional Court challenged this law, and eventually ruled that three of PO appointments were valid, but the President still refused to swear them into office. The Law and Justice leader announced further changes regarding the Constitutional Court, which manifested the 22nd of December in 2015. These changes required a two-thirds majority for any decision, and at least 13 out of the 15 judges participating. Most significantly, it also allowed any judges of the Court to be dismissed on request of the legislature (controlled by the PiS), or the Department of Justice (also controlled by the PiS). These changes gave PiS control over a significant portion of the Polish judiciary. The Constitutional Tribunal was no longer able to effectively do its job, and thus unable to enforce rule of law. However, this power grab has since broadened. In November 2017, the legislature proposed reorganizing the National Council of the Judiciary, the body responsible for nominating judges and reviewing ethics complaints, such that the 15 judges that sit would be nominated by the legislature, current members would be terminated, the Supreme Court’s mandatory retirement age would be dropped to 65, forcing 34 justices into retirement. Furthermore, the Supreme Court could annul verdicts from the last 20 years. Upon threats of removal of Poland’s voting right from the EU, Poland immediately signed the proposal into law in defiance. These restructuring efforts demolish horizontal accountability, that is, the natural checks and balances inherent in democratic systems. The PiS party can significantly interfere or eliminate judicial review through control of judges or obstructionist policies that prevent the courts from ever reaching a verdict. Control of appointing allows PiS to slowly but surely take over the courts as long as they remain in power, while immediate removal of justices gives an immediate impact as those justices can be replaced by PiS nominated leadership. The rule of law pillar of democracy has been breached so strongly in Poland, that the EU felt it necessary to step in, despite its efforts being ineffective thus far.
Finally, and most recently, the Polish government under the PiS Party has begun taking aim at the election process. The Polish Nation Election Commission (PKW) is the overseer of the electoral process in Poland. It registers parties, candidates, managers voter rolls, announces ultimate results, and supervises the entire process. It also, crucially, controls state subsidies for party election, and monitors party spending throughout the process. Currently, the PKW consists of 9 active or retired judges, three each from the Constitutional Court, the Supreme Court, and the Supreme Administrative Court. However, the new law mirrors the process the PiS took in the Courts. Rather than being Justices, the reforms reduce the court nominations to one per court, while the legislature receives seven. While the reforms prevent any single party from getting more than three members, we know that PiS already controls the Constitutional Tribunal, giving them four seats, and are expected to take over the Supreme Court, after the reforms at the end of 2017. This gives PiS complete control over the election oversight party, toeing the line for violating the third and final pillar of democracy. However, PiS has also taken aim at the National Election Bureau (KBW). They have removed PKW’s ability to freely choose the executive of KBW. Instead, the legislature and senate will each choose one representative, then PKW will choose from these nominees. This is clearly another move to consolidate PiS control. If they gain control of the PKW, they simply choose the nominee that have chosen in the legislature. If they do NOT control PKW, they still ensure themselves a strong chance that their candidate gets chosen. While we have not yet seen free and fair elections compromised yet, control over these crucial election agencies paves the way for the erosion of the final pillar of democracy.
Poland is on an extremely dangerous path toward maintaining democratic stability. As PiS solidifies its control over the judiciary, continues to attempt to control media, and makes moves toward compromising free and fair elections, we see all democratic pillars being violated. This is a clear indication of democratic backsliding, recognized both by politicians around the world, as well as the EU itself. If Poland continues down this road, it is clear that the country can no longer be considered a true democracy by any definition.