Poland is perhaps the most well-known nation-state undergoing serious democratic erosion, in part because it is Eastern Europe’s strongest economy and seen as a model for other post-Soviet states of the region. The crisis over the Constitutional Tribunal, Poland’s highest court, is well-known, and the ruling right-wing Law and Justice party (PiS) has significantly curtailed the power of the judiciary and judicial independence. PiS has also taken steps to politicize Poland’s National Election Commission and National Election Bureau, centralizing control over the election process, raising serious concerns about the impartiality of the two bodies. PiS has taken control of state media and has attempted to significantly curtail private media, fining the largest private television channel, TVN24, for “promoting illegal activities and encouraging behavior that threatens security,” related to the channel covering anti-government demonstrations. For all of this, the EU has started to move to sanction Poland for “a clear risk of a serious breach of the rule of law by Poland.” A recent anti-democratic measure undertaken by PiS is a law that criminalizes claims that Poland bears any responsibility for heinous acts during the Holocaust, despite historians presenting evidence that several pogroms were carried out by Poles not under Nazi direction. Few have analyzed this particular law in terms of its potential anti-democratic effects, but it is a prime example of the risks of populism and the power of propaganda.
I will examine the law in context with other PiS actions, and under the theoretical framework of Nancy Bermeo’s conception of democratic backsliding, which she defines at its most basic level as “the state-led debilitation or elimination of any of the political institutions that sustain an existing democracy.” Other scholars have developed similar notions of democratic erosion that stops short of a complete shift to authoritarianism through legal or semi-legal practices, such as Huq and Ginsberg’s “constitutional retrogression,” or Varol’s “stealth authoritarianism.” I have chosen to adopt Bermeo’s framework as a lens to analyze Poland due to her proposed subset of democratic backsliding, executive aggrandizement, which she defines as when “elected executives weaken checks on executive power one by one, undertaking a series of institutional changes that hamper the power of opposition forces to challenge executive preferences. The disassembling of institutions that might challenge the executive is done through legal channels, often using newly elected constitutional assemblies or referenda.” Her strict definition of executive aggrandizement does not perfectly fit Poland’s situation, in that she asserts that executive aggrandizement occurs when “institutional change is either put to some sort of vote or legally decreed by a freely elected official,” as some prominent PiS measures have been clearly illegal. However, I believe that theory is still useful, given that PiS has still attempted to frame their changes “as having resulted from a democratic mandate.” In addition, anti-democratic efforts have been headed by Jarosław Kaczyński, the leader of PiS, and have involved centralizing power in his hands. In addition, Bormeo identifies laws restricting “Media freedoms and judicial autonomy” as “prime sites for democratic backsliding,” through executive aggrandizement, which is obviously the case in Poland. Executive aggrandizement is so worrying as a threat to democracy because it is often undertaken with the consent of significant proportions of the electorate, without them realizing that the laws are indeed weakening democracy. Indeed, most instances of executive aggrandizement are justified by the need for increased power to enact the will of the people, as is the case in Poland, despite the fact that PiS won 51% of Parliamentary seats with about ~37.6% of votes.
Poland’s new law criminalizing certain speech about Poland’s and/or Poles’ role in the Holocaust is a classic example of laws restricting free speech that can have anti-democratic effects. Many have spoken about the importance of free speech and media to a democracy, such as Huq and Ginsberg, who argue that “Where information is systematically withheld or distorted by government so as to engender correlated, population-wide errors, democracy cannot fulfill” its mandates. Especially worrying are laws restricting free speech constructed with deliberately ambiguous language.” The Polish law in question is as follows: “Whoever claims, publicly and contrary to the facts, that the Polish Nation or the Republic of Poland is responsible or co-responsible for Nazi crimes committed by the Third Reich or for other felonies that constitute crimes against peace, crimes against humanity or war crimes, or whoever otherwise grossly diminishes the responsibility of the true perpetrators of said crimes — shall be liable to a fine or imprisonment for up to three years.” Although other parts of the law specify the acts that are not to be construed as committed by Poles, the provisions criminalizing claims about “crimes against peace, crimes against humanity or war crimes, or whoever otherwise grossly diminishes the responsibility of the true perpetrators of said crimes” are not explicitly limited to the Holocaust and are quite vague. This is so worrying because the law could potentially used politically, in an attempt to silence critics or delegitimize political opponents. Some have already pointed out those possible dangers, but rarely have they been linked to risks of further democratic backsliding.
In addition, the law is a reflection of the populist nature of the ruling regime. While populism is a widespread topic of political media at the moment, the definition of populism is somewhat ambiguous. Muller provides a basic framework, arguing that populists are not only critical of elites, but also anti-pluralist, meaning they only accept a certain subset of the people as legitimately part of the people, and that the populist party/leader is the only one that can truly represent that subset of the people. PiS is very clearly anti-elite, at least in the sense of anti the establishment parties. Often less examined is the second criterion, but it is clearly in evidence in Poland. For example, when opposition leaders called for an EU investigation into PiS’s moves to destroy judicial independence, Kaczyński said “In Poland, there is a horrible tradition of national treason, a habit of informing on Poland to foreign bodies. And that’s what it is. As if it’s in their genes, in the genes of Poles of the worst sort.” The message is clear: only someone who is a Pole “of the worst sort” would take such action against the ruling government, against what PiS would describe as Poland. The law in question has similar undertones. Presumably, Kaczyński would argue that the only people at risk of being charged and convicted under this law are Poles “of the worst sort.” For who else would dare speak out against the Polish nation, or by extension, the Polish government? The law once again conflates the entirety of Poland, and legitimate Poles as defined by PiS with the government of Poland, by criminalizing speaking out against “the Polish Nation or the Republic of Poland” in this matter. It is very clear that PiS is attempting to erode the democracy of Poland, and every action it takes must be interpreted through such a lens.