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Quo Vadis, Poland?

22.09.2017

Written by: Katarína Chovancová

 

The media have extensively written about specific steps of Beata Szydlo’s Government that are considered problematic, describing some of them as leading to illiberal democracy. But is the situation in Poland really leading to illiberal democracy? Or is Poland already an illiberal democracy? Which particular moves by its Government steps affecting the country´s stage of democracy? All these questions will be answered in the text below. It departs from the core thesis that Poland cannot be qualified as an illiberal democracy at the moment. Several steps not fully democratic in character have, indeed, been made, but they alone do not add up to a continuous illiberal tendency. Moreover, as the latest case of the proposed judicial reform shows, the Government´s attempts are not enough as long as there are other actors in the country preventing illiberal steps from prevailing.


Schumpeter defined democracy as that institutional method for arriving at political decisions in which individuals acquire the power to decide by means of a free competitive struggle for the people’s vote. Subsequent definitions of democracy went much further. Pluralist theories of democracy consider democracy a system that represents (and respects) all sections of a pluralistic society, such as different ethnicities, nationalities or economic classes. The liberal theory of democracy is, however, today considered the central democratic theory. It stresses a broad range of aspects that have to be present in a political system that is considered democratic. All liberal theories of democracy highlight that democracy is based on the representation of people through fully democratic election procedures, that it ensures respect for human rights and fully protects political and social freedoms, including freedom of speech. Similarly, the control of the government has to be provided by ensuring the independence and freedom of the political opposition and the media. This text will describe two particular spheres of Poland’s socio-political life that illustrate the Government’s interventions exceeding the boundaries of democracy. And the analysis of these steps leads to the conclusion that Poland cannot be qualified as a fully democratic political system; rather, that it has several characteristics of illiberal democracy. These two spheres involve the control of the government by the parliamentary opposition and separation of powers, including an independent judiciary. The former was undermined several months ago, the latter brought instability to Poland only a few weeks ago. And it was not effectless – at the national level, it prompted Polish citizens to stage large-scale protests and, at the international level, the European Commission to consider launching a procedure against Poland for the very first time in the EU’s history.

 


Many authors are of the view that the existence of a genuine political opposition is essential to a parliamentary democracy. Helms (2004), for instance, claims that limiting the strength of the government is a key step when democracy is being formed. And, in fact, the parliamentary opposition is the only one that can restrict the government inside the parliament, where it operates.1 When analysing a country´s stage of democracy, many political scientists therefore also focus on whether the parliamentary opposition has opportunity to control the government and to engage in parliamentary action, including the legislative process. It may be said that the borders of standard democratic treatment of the opposition were crossed in December 2016, before the parliamentary vote on the state budget bill. There were sections of the budget the opposition disagreed with, but the bill definitely lacked the requisite potential to give rise to ideological or programmatic conflicts between it and the ruling parties. However, the Government blocked the plenary hall to prevent the opposition MPs from entering it while voting. To make sure that the opposition and media could not attend the vote, it decided to vote on the bill in a different hall, blocking its entrance as well. The state budget bill was passed in such circumstances. The opposition and the media rightly claimed that it had not been adopted in a democratic manner and should not come into force. However, the ruling Law and Justice party treated it as if it had been legally passed. Opposition MPs started the blockade of the parliament and people took to the streets.2 While thousands of people were protesting in the streets, Grzegrz Schetyna, the leader of the largest opposition party, the Civic Platform, called it a constitutional crisis, and his MPs continued occupying the parliamentary hall for several weeks, including Christmas and New Year´s Eve.3 It seemed unclear how the crisis would be resolved even in January 2017; new parliamentary elections were mentioned as one of the possible solutions.

 


It was, in fact, the opposition itself that later ended the crisis, in a way that did not hurt the Government but did minimise the opposition’s opportunities to force the Government into making real changes in its behaviour. At the beginning of the year, the Polish parliamentary opposition and even the media continued to speak about the Government in increasingly radical terms. Indeed, they were right about how problematic some of the Government’s steps were. On the other hand, the more radical words they chose, the less effective their rhetoric was, since the Government and the people were paying less attention to them. Moreover, in January, the opposition’s image suffered a major blow when its scandals were made public. It was revealed that Mateusz Kijowski, the leader of the Committee for Defence of Democracy, had broken the law by invoicing IT services his company had never provided.4 The opposition thus discredited itself and was not an adequately strong counterpart of the Government.

 


Another important aspect of parliamentary democracy is definitely the separation of powers, with the independent judiciary being one of its vital elements. The Polish Government led by Law and Justice, however, did not hesitate to restrict the independence of the judiciary, especially by the set of legal amendments proposed in July. Notably, it tabled amendments to three laws significantly reforming the judicial system. Under one of them, the Minister of Justice (who also holds the office of Attorney General) is entitled to retire all Supreme Court judges and then independently decide which of them to reappoint. The second bill is just as restrictive – it entitles the MPs to control the Supreme Judicial Council that appoints judges to the Supreme Court. The third piece of legislation entitles the Minister of Justice to choose and appoint judges to lower courts. The adoption of this judicial reform package by the Polish Parliament, despite major disagreement on part of the opposition, hardly comes as a surprise. Thus, we definitely cannot talk about consensual or even semi-consensual reform of one of the pillars of the separation of powers. And by this step, the separation would de facto disappear since the executive would become linked to the judiciary and be vested with powers to influence it in a way which cannot be considered democratic. Polish society did not sit still – the citizens organised massive protests in several Polish towns and cities. On 22 July, when the three bills were passed in the Senate by a majority of 55 out of 80 votes, tens of thousands of people took to the streets; in Warsaw, they even blocked the entrance to the Senate.5 Polish President Andrzej Duda, who had until then endorsed all the laws passed in parliament, sided with the people, who considered the reform undemocratic. He did not sign either the law introducing the Justice Minister’s right to retire Supreme Court judges or the one allowing the Government to control the Supreme Judicial Council. However, he did sign the last one, entitling the Minister of Justice to appoint judges to lower courts.6 Such a step caused quite a surprise – both among the ordinary people, who considered Duda completely loyal to the ruling party, and within the party. Its leader Jaroslaw Kaczynski said that the President had “made a mistake” by not signing two of these laws.7 At the moment, Kaczynski’s party and the Government face a restriction qualitative in character: they need a 3/5 majority of votes in parliament to defeat the President’s veto. The Government is unlikely to muster so many votes. Moreover, the European Commission, after issuing several recommendations to Poland in the recent months, is not satisfied even after the President refused to endorse two of the three laws. Frans Timmermans, the Commission Vice-President, said that Poland had one month to align its judicial reform with EU law.

 


The previous paragraph outlined three particular effects of the non-democratic steps by the Government led by Law and Justice, especially the judicial reform proposed in the recent weeks. One of them is external in character - the European Union’s pressure on Poland. As is well known, pursuant to Article 7 of the Treaty on the EU, the Council may decide to suspend certain rights of a Member State, including its voting rights, in case it determines the existence of a serious and persistent breach of values by that Member State. International diplomatic isolation apparently is not something the Polish Government is taking into consideration. It is more than clear that Beata Szydlo’s Government is now concentrating on strengthening its internal position. Negative reactions from abroad are a “price” for these steps, which the Government is willing to pay.

 


On the other hand, there are two specific powerful actors inside the country itself that can put pressure on the Government. Society is definitely the first one – Polish citizens have been increasingly taking to the streets to express their disagreement with the Government. However, the Law and Justice party has not paid much attention to them yet. Judging by the public opinion polls, it apparently does not even have to, since the support it enjoys has not decreased significantly – it oscillated between 30 and 35 per cent even during the previous month. However, the strongest opposition party, the Civic Platform, has been gaining popular support which reached 25 per cent and, in the last three months.8 The Law and Justice party apparently has not been focusing on winning more support of the electorate ahead of the next parliamentary elections. Instead, it has been attempting to strengthen its position in the state institutions and to influence public opinion through them.

 


If the public and its protests are an internal factor lacking strong influence on the Government’s steps, is there something or someone else in the country that can stop Szydlo´s Government? Yes, in my opinion, there is: President Andrzej Duda is the one who can affect the balance of powers in Poland. The proposed judicial reform laws were the very first ones he vetoed. Until then, he had been considered very loyal to Kaczinski and his party. Duda was a member of the party until 2015, when he was elected President. He now demonstrated his independence and willingness to protect democratic principles. This is even more important in the context of Law and Justice’s support to his 2020 presidential candidacy. Nevertheless, Duda´s opinions themselves will not suffice to restrict the Government´s illiberal moves. As already noted, he can inhibit such moves by exercising his power to veto its undemocratic laws, making it extremely difficult for the Government to pass them again. Thus, he is, at the moment, the strongest internal actor vis-à-vis the Government. The European Union, as the external actor, may act against the Government’s openly undemocratic steps if the latter refuses to step back. The EU’s soft powers are not, however, sufficient against Law and Justice’s undemocratic rule.

 


This is not, however, the end of the story. To answer the question from the title of the text, whether Poland is “going” towards illiberal democracy, we need to analyse the potential future non-democratic steps of Szydlo´s Government, notably those redistributing the power between the government and other political actors. Her Government’s track record gives reason to expect that illiberal practices will continue in the future if it is not limited by other political actors or institutions inside or outside the country. As set out above, both the European Union and Polish President Duda can limit and/or oppose the Government´s steps in practice but neither of them can do so until such steps are made and they cannot prevent the Government’s tendency to repeatedly exceed the boundaries of democracy. Notably, a country can be penalised for its legislative decisions or procedures only ex post facto. This may work in a short-term context and in case of most problematic and openly undemocratic practices. In the long run, Polish society is the only actor that can influence the Government´s overall behaviour, at least to an extent. It can react to the Government’s undemocratic tendencies, partly through protests, but especially through its electoral behaviour. 

 

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1Helms, L.: Five Ways of Institutionalising Political Opposition: Lessons from the Advanced Democracies. Government and Opposition. 39, 2004, s. 22- 54.

2Denník N: Chaos v poľskom parlamente: Vládna strana hlasovala, opozícia zostala za dverami, 17/12/2016. Online. Available at: https://dennikn.sk/636186/chaos-v-polskom-parlamente-vladna-strana-hlasovala-opozicia-zostala-za-dverami/. Visited 03/08/2017.

3Reuters: Police break up blockade of Poland's parliament amid political crisis, 17/12/2016. Online. Available at: http://www.reuters.com/article/us-poland-politics-crisis-idUSKBN1452TL?il=0. Visited 03/08/2017.

4Gazeta Wyborcza: Mateusz Kijowski z zarzutami przywłaszczenia 121 tys. zł i poświadczenia nieprawdy. 28/06/2017. Online. Available at: http://wyborcza.pl/7,75398,22020642,byly-lider-kod-mateusz-k-z-zarzutami-przywlaszczenia-121-tys.html?disableRedirects=true. Visited 03/08/2017.

5Denník N: Chaos v poľskom parlamente: Vládna strana hlasovala, opozícia zostala za dverami, 17/12/2016. Online. Available at: https://dennikn.sk/636186/chaos-v-polskom-parlamente-vladna-strana-hlasovala-opozicia-zostala-za-dverami/. Visited 03/08/2017.

6Denník N: „Ľudia sa nemajú báť štátu.“ Poľský prezident Duda vetoval spornú reformu súdnictva. 24/07/2017. Online. Available at: https://dennikn.sk/831985/ludia-sa-nemaju-bat-statu-polsky-prezident-duda-vetoval-kontroverznu-reformu-sudnictva/. Visited 03/08/2017.

7Denník N: Lyžuje s Kiskom, bol perom Kaczyńského. V poľskom prezidentovi teraz vidia nádej, 30/07/2017. Online. Available at: https://dennikn.sk/837744/lyzuje-s-kiskom-bol-perom-kaczynskeho-v-polskom-prezidentovi-teraz-vidia-nadej/. Visited 03/08/2017.

8Tvp.info: PiS coraz mocniejszy. Poparcie dla partii wzrasta [SONDAŻ], 27/06/2017. Online. Available at: https://www.tvp.info/33393753/pis-coraz-mocniejszy-poparcie-dla-partii-wzrasta-sondaz. Visited 03/08/2017. 

 

 

Note: The author been EMinS intern from March till May 2017. The text was edited during summer 2017. The views and opinions expressed in this essay are those of the author and do not necessarily reflect the official views of the European Movement in Serbia.


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