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The Polish Question

The political situation in Poland has attracted the world’s attention. According to conventional wisdom, last year’s electoral victory by the Law and Justice Party was a setback for the democratic evolution of the country. The international media worries that the golden child of post-communist Central and Eastern Europe has gone astray.

The Bulgarian writer Ivan Krastev aptly senses the importance of the situation, writing in New Eastern Europe that

if Poland, which is often perceived as one of the biggest winners of European integration, starts to have second thoughts about the EU project, then other countries, including Germany, would themselves start to question the project.

The concern is even stronger when it is kept in mind that Poland is also a member of NATO and an important part of the security puzzle in the region.

Two conflicting narratives try to explain political change in Poland. The first one, embraced by critics of the Law and Justice Party, sees a nationalist and populist backlash against immigrants from the Middle East, embodied in a Eurosceptic government that abuses its power and despises liberal democracy. These critics underline the new Polish authorities’ neglect of the political system, legal order, and economic principles that have held sway for the last 25 years, the same principles that paved the way for the permanent economic growth and political stabilization of Poland after the collapse of communism.

The second narrative, endorsed by the ruling party and the government, accentuates the faults of the post-communist political elites, whom they accuse of “cosmopolitan” and “non-national” behavior, and whom they see as a weird mixture of former communists and Solidarity traitors. Their orientation toward the EU has made them arrogant and out of touch, say the Law and Justice representatives, and has led to increasing social and economic inequality, loss of the ability to make sovereign decisions at the national level and ultimately, betrayal of Polish national interests.

Suffice to say that both narratives shape the limits of political and intellectual confrontation in the country.

After the presidential election in May 2015 was won by the Law and Justice candidate, Andrzej Duda, the new president appealed to the then-ruling Civic Platform government not to make any substantial changes to national legislation or the existing political order in light of what looked to be—and indeed what proved to be—a resounding defeat for Civic Platform in the parliamentary elections to follow. This plea was not heeded. Civic Platform legislators, while they still had a majority in the Polish parliament, crafted and adopted a new Law on the Supreme Court, providing for a new selection procedure of the Constitutional Tribunal judges beneficial for, unsurprisingly, the Civic Platform.

They tried to rig the selection of judges to this panel so as to secure Civic Platform’s control over it regardless of the popular vote to be held in October 2015. The president of the Constitutional Tribunal and at least a couple of the Tribunal’s judges were actively involved in the working process on that same law—a fact substantially undermining the idea of separation of powers, today so vigorously defended by a Civic Platform now in opposition. Retaining control over the highest judiciary organ determining the constitutionality of legal acts was considered by the Civic Platform as the only possible bridgehead against its loss of control of the government.

The Law and Justice political offensive after the fall’s parliamentary elections, when for the first time in Poland’s post-Cold War history, a political party won a complete majority and was able to establish a non-coalition government, surprised public opinion around the world. By the end of the year, the public media in Poland were purged, the country’s civil service was weakened, and the importance of the Constitutional Tribunal was undermined.

This revolutionary vigor was terrifying for the former party in power. The attack on it was depicted as attack on democratic rule in the country. The Civic Platform has relied on an additional weapon to fight back: its ties with the EU’s mainstream political circles.

Meanwhile the EU itself has had to define a new strategy toward the newly elected authorities in Warsaw. In response to the purges enacted by Law and Justice officials, and in particular in the context of the crisis over the Constitutional Tribunal, the European Commission launched for the first time in its history the three-tier Rule of Law procedure. This humiliating mechanism was supposed to define the acceptable limits of legal action by the new Polish government and reestablish the “theoretically” damaged independence of the Constitutional Tribunal.

The current understanding of the political developments in Poland in the western European media seems to be dominated by the Polish opposition parties’ views. It is a bias that offers little help in providing a coherent explanation of the existing situation.

What neither the government’s approach, nor that of the parliamentary opposition, takes into account is the political practices established and nurtured over the last quarter of a century; it is these that determine the quality of political life in Poland and the legitimate limits of possible state actions. This period has brought what one could call a quiet revolution in Poland’s political affairs, and studying it is extremely important to determine a way forward for the country.

Over the last quarter of a century, the prevailing pattern of post-election transfer of power was based on the principle of “the winner takes all.” Every single political party considered the possession of power as an opportunity not only to rule, but to exert pressure on the political opposition. However, due to the coalitional nature of the post-1989 governments until these last elections, the practice was implemented in a “soft” version. The winner gained control of the state, yet there was always a need to trade off some power with the coalition partners.

The non-coalitional nature of the Law and Justice government has brought with it the “hard” version of this principle.

The outgoing Civic Platform secured its position in the Constitutional Tribunal by completely neglecting the sacred principles of separation of powers, judicial independence, and respect for the results of the popular vote. Justice Minister Borys Budka of Civic Platform later issued a public apology for this, in a bid to get his party out of political purgatory. But his party is hardly in a good position to be the crusader for political sanity against Law and Justice’s victorious pillaging.

For the fact is that over the last quarter of a century, the Polish judiciary system never became completely independent. It lacked the political will to enact significant reform, the reason being, at least in part, that judges’ service is dependent on political nominations, on clientelism and delivering political favors.

This pattern is exemplified by how the president of the Constitutional Tribunal, Andrzej Rzepliński, got that position. After an unsuccessful nomination for the post of Ombudsman, he was eventually seated on the Constitutional Tribunal as a sort of consolation prize.  In a recent interview in Gazeta Wyborcza, Rzepliński admitted openly that, three years later, he was simply asked by the then-Prime Minister Donald Tusk whether he wanted to become president of the Constitutional Tribunal!

The post-1989 political elites have in general seen partisan politics mainly as confrontation, in the sense that all the power is accumulated and distributed only among the members of the winning party. Although in matters of highest interest (membership in NATO and the EU) one could observe consensual politics, the daily practices of cooperation between the coalition in power and those in opposition were scant. The result has naturally been a build-up of frustration and desire to exact revenge once one has the chance. The political purges that take place after every election are more severe than they otherwise would be, with professionalism being deemed much less important than political affiliation and loyalty.

The reigning explanation for Poland’s transitional miracle since the collapse of Soviet communism has been that, unlike what was the case in many other once-captive nations, the Polish/Solidarity intellectual elites were educated and acquainted with the political thought and practice of the West well enough to swiftly get a functioning and decent post-communist state up and running. But this argument, again, omits consideration of the daily practices that shaped the new reality. For the majority of the post-communist elites, the understanding of power did not in fact differ much from the that of the communists, which is to say that, once obtained, power should not be lost.

The cachet of having defeated communism gave an aura of moral superiority to the Solidarity movement, and later Civic Platform, whose every member claimed a right to perpetually be in power. Opiated, as it were, by the victory against communism, they introduced the liberal democratic framework but ignored the circulatory system of the body politic, its daily political practices. It was they who prepared the ground for the transplantation of pathologies so strongly despised in the Soviet era.

Among the casualties over the last quarter century has been the idea of political accountability. The rare cases of acknowledged political responsibility—as when a justice minister and several top officials under him were forced to resign over the suspicious deaths in custody of suspects in a high profile kidnapping-murder case—were largely overshadowed by examples of political opportunism. Changes of party affiliation by political grasshoppers like Leszek Miller, Ryszard Czarnecki, Bartosz Arłukowicz, or Michał Kamiński, undermined the idea of party politics (meant in the better sense, not in the revenge-seeking sense).

Losing elections was also not a reason for the termination of political career, but an opportunity to establish alternative political projects that provide a new platform for their endless pursuit of power. The general argument during the first 15 years of transition was that an unstable political scene is a natural process of transition. However, even after the 2005 elections, which stabilized the political scene with two main political parties, we observe the constant tendency of emerging new political projects (like the Nowoczesna.pl party), intended as a safe harbor for the Civic Platform survivors.

The lack of stability of the Polish party system compromised the ability to have a generational or a quality-based changing of the guard; it hampered the entry of new blood and fresh political ideas. Instead of intellectual competitiveness within the political parties, and a natural exchange of party leadership after elections, we observe two unhealthy patterns of behavior.

One is party rule from the back seat, as it were. That is what is happening (and for the second time) with Law and Justice heavyweight Jaroslaw Kaczynski. It also happened with the former leader of the Solidarity Electoral Action, Marian Krzaklewski, in 1997.

The other is generational change based not on intellectual merit, but on blind loyalty on the part of prominent officials’ assistants and secretaries. The parties are on autopilot, with very little genuine articulation of ideas and visions. This impoverishes the platforms offered to the people of Poland, and makes them non-accommodative to the changing political reality. Such a situation naturally pushes people away from politics.

Cynicism about Polish politics reached its peak with Donald Tusk’s departure from the premiership in the fall of 2014 to assume the presidency of the European Council. The media celebrated this move, but it ought not be forgotten that a serving Prime Minister consciously abandoned his popular mandate before that mandate had run out. If a Prime Minister can use this post to advance his own political career, why shouldn’t Polish politicians of lower rank do the same? That apathy and cynicism have taken hold with ordinary Poles can be seen in the fact that,  in the strongly polarized parliamentary elections of October 2015, voter turnout reached  51 percent—and that was high for a parliamentary election in the post-communist period.

Among the costs of the bloodless transition to democracy was the acceptance of the former communist elites into the new political mainstream. However, the economic and social burden of transition was not evenly shared by the former system’s apparatchiks and the rest of the society. Instead, many of the former communists managed to exploit their former connections in order to accommodate themselves to the new democratic and free-market reality.

Simultaneously, the state retreated from many of its functions, leaving the individual to his own abilities. This abdication of the state promoted entrepreneurship and ambition, but the beneficiaries were mainly those with privileged access to the emerging opportunities. The post-communist political elites used the state to secure their positions and exploit these opportunities, whereas the rest of the population had to learn how to live and succeed without the state.

The natural consequence was the erosion of social bonds. The growing social stratification became a substantial problem. It is exacerbated by the fact that it emerges in a formerly egalitarian (at least in terms of, even if largely limited, access to material goods) society. On the other hand, the notion of equality was eradicated from the political vocabulary in a reflexive way, spurned as a synonym of the former system.

The roots of the present  crisis around the Constitutional Court and the Law and Justice Party’s quest for authoritarianism were seeded in political practices nurtured by the political elites since 1989. Indeed, in Poland we observe the gray colors of political stabilization in which the two dozens of years of political transition led to the establishment of political practices that are more reminiscent of the former communist understanding of power as “never to be shared” than the longed-for ideal of a cyclically refreshed western political culture. The political culture in Poland remains a captive of the former communist political practices brought by the former Solidarity activists together with their dream for an independent country.

There might be a glimmer of reason in Salvatore Babones’ argument that the situation in Poland is that of a democracy “coming of age, learning to play the kind of bare-knuckled, hard-ball politics that have always prevailed in the Anglosphere. It may not look pretty, but that doesn‘t make it undemocratic.” But it seems that neglecting political accountability and treating political parties as short-term projects hampers the country from reaching its full maturity.

Reader Discussion

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on October 06, 2016 at 09:07:00 am

A very interesting and useful analysis, particularly the point about "winner-take-all" approaches to politics. That does seem to be something of a trait in early popular governments, and certainly more prone to democratic than to republican systems. Not being as familiar as I would wish with Polish constitutional structures, I would ask, are these problems that would to some degree be addressed if there were more and better constitutional protections for those who find themselves (hopefully only from time to time) in the political minority? In other words, what are the constitutional protections against tyranny of the majority?

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Wayne Abernathy
on October 06, 2016 at 18:03:54 pm

Dear Wayne,
thank you for your comment. The most recent leaks of Constitutional Tribunal judges reveal that they themselves were aware of the process of "spoilaging the state". This was particularly underlined by Justice Tuleja. Unfortunately, his hopes were that this process can be halted only by a conscious leader able to assess that the blind pursuit of particular party interests has a devastating consequences not only for the quality of political culture, but also for the prestige of state institutions and the popular perception of the rule of law. Today, we see that in the case of the Constitutional Tribunal - the sole institution established to guard the constitution, was being exploited for political purposes. Thus, answering your question - recently all existing constitutional protections against tyranny of the majority have been either discredited or paralyzed. But again, I need to emphasize that it is not the recent government to be solely blamed for this situation. The roots of the current political reality go much deeper than the Constitutional Tribunal crisis. In its essence, there is a substantial misunderstanding what is the notion and purpose of power in post-transition Poland. The numerous pathologies enlisted in the paper, contribute to this weird understanding of politics, which as you aptly notice is nothing but a tyranny of the majority - regardless who is in power.

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Spasimir Domaradzki
on October 06, 2016 at 20:19:03 pm

Hmmmm. I thought "winner-takes-all" was synonymous with majoritarian tyranny. But I'm not a political scientist.

One of the checks needed in a constitution for a democratic state is a check on democratic tyranny, not just on the branches of the government officeholders. Is it not?

What constitutional checks does the Polish Constitution provide against democratic excess?

The US Constitution provided a non-directly elected senate to provide checks on government, and a non-directly elected president. Those bulwarks were meant to prevent democratic excess. By being outside the democratic control they could exercise greater conscience in their offices. Since the Constitution went into operation neither plan worked out. Today we pay the price in out of control government.

The Poles apparently are suffering the same basic problem. Democratic excess does not produce strong public control. It produces excess control by politicians and the very wealthy as they figure out how to manipulate the public. To get a constitution ratified by a democratic public, the framers tend to give too much power to the public. That seems to me at least to be the central problem.

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Scott Amorian
on October 06, 2016 at 21:04:52 pm

Mr. Domaradzki:

Let me ask a question or two:

1) To what extent are the current problems, which as you say have been tepidly brewing for the past 25+ years, a direct consequence of the previous authoritarian / communist system. Is there a direct correlation between the previous regimes "lust" for power and the current "power grasping" by the new Parties. In effect, is there something that a Socialist / communist system instills into its citizenry - not just it's elites - that makes a (ideally speaking) Western perception of democratic politics elusive? I can not recall the writers name, but she was a former citizen of the old Soviet Union and she argued that the Soviet system was so oppressive that it made it impossible for the newly freed citizenry to embrace the new democratic mindset. (I'll spare all of us the pyscho-babble - but she made some rather convincing arguments).

2) What could, or should, have the Poles done. Short of the Bolsheviks solution of *wiping out* the aristocracy, could the Poles have limited the "access" of the former Communist elites? BTW: why was this not done?

3) What are your thoughts on how this will be resolved? Are the citizens open to the *ideal* of Western Democracy?

4) What are the prospects of the Law and Justice "undoing" the damage caused by the previous administration AND then proceeding to respect whatever safeguards your constitutional structure provides.

Anyway, Best of Luck to you all. And a Polexit would not be that bad - the Brits are trying to regain their sovereignty; perhaps a Polexit may be the first step toward Poland regaining its own.

take care
gabe

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gabe
on October 09, 2016 at 18:01:12 pm

Ad 1: I have the feeling that no matter how scholarly we try to look at the political developments there is always a glimpse of this cultural/amorphous environment that shapes the perception of this reality. My hypothesis is based on my observation of the post-communist political elites and their opaque understanding of power. I find the argument of the former Soviet Union writer also compelling. We see that animals from the zoo have difficulties adapting if released to the wilderness. Although in Poland the regime was also very oppressive, the paradox is that the Polish opposition was comparatively well educated and acquainted with the Western political thought and systems. Therefore, I would argue that the reason for this genuine misunderstanding of power comes from several sources – the meager democratic experience of Poland over the last century; the post-Solidarity myth of revolutionaries gaining privileges for tumbling the former system; the partial transition in terms of accenting on the structural and institutional, while completely ignoring the mental dimension and the importance of political practices. But answering your question “Is there a direct correlation between the previous regimes “lust” for power and the current “power grasping” by the new Parties.“ directly – I think yes. The post-communist parties are also organized around strong “alpha” leader/strongly centralized and have generally no ability to survive beyond his/her political life cycle. Secondly, this political habit was implemented immediately after the collapse of the former system and was replicated by the former Solidarity politicians. Of course, there is a substantial difference in the two systems, but the perception of power grasping resembles more the advent of authoritarianism than the cycles of democratic elections.
Ad 2: In Poland there are two narratives on what we call lustration/decommunization. On one hand much more has been done than in other countries from the region. Although not immediately, appropriate laws were introduced, institutions established (Spokesman of the Public Interest, Institute for National Remembrance) former agents of the secret services were banned from public offices for 10 years (if proven guilty) and depending on the party in power this issue was more or less exploited. On the other, some argue that this is the primary sin of the Poland’s Third republic – the round table talks of the Communists with the Solidarity that paved the way for peaceful transition, required also consensus and securing the future of the former Communist elites. Ultimately, the Communists were clever enough to destroy partially the former Secret Services archives and thus undermining any efforts for justice after the end of Communism. Today, it is very difficult to say who really from the new political elites benefited from his/her former secret services connections – that makes it even worst because any argument can be questioned or any accusation can be thrown.
Ad. 3: I am pessimistic on this point. I think we have missed the moment to create a well aware of its rights and responsibilities citizenry, which could demand a high quality of political service by its politicians. What shapes the popular perception of politics in Poland are the daily political practices and they still need a lot of improvement. Therefore, I would argue that the face of political stabilization we see is what the sum of political elites+society can produce together.
Ad. 4: Despite the corrective narrative, the recent government is not “undoing”, but rather “accommodating” the political structures. Once overtaken they will be defended as long as they will be useful. The case of the Constitutional Tribunal is remarkable – its position was compromised, because it could not be immediately controlled. Needless to say, the previous government did everything to compromise it “in white gloves”.
Thank you very much for all the questions. I hope I was able to respond to them. Last but not least – I think Poland will be among the last to leave the EU, because regardless of the government actions the Polish society is soundly pro-EU. Nevertheless, you never know where a skillfully conducted campaign can take the masses 

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Spasimir Domaradzki
on October 10, 2016 at 10:50:03 am

Dear Scott,
You are making a good point. However, in the case of the post-communist countries there was an overwhelming cry for majority rule as a consequence of the totalitarian experience. In Poland the reinstatement of the Senate in 1989 had a profound symbolical role, but today is of lesser practical importance. Since the senators are elected during the same general parliamentary elections, the results in the Senate resemble the division of seats in the lower chamber (Sejm). There are substantial debates on the rationality behind the existence of the Polish Senate. Except for the couple of seats assigned to members of national minorities in the Sejm, I see no real institutional brakes.
But my main point is that the misunderstood importance of political responsibility is what leads to the current state of affairs. The introduction of all structures of Western democracy without the appropriate level of political prudence, which would have had to be subsequently incorporated into the newly coined post-communist political culture, still creates conditions for the tyranny of the majority.

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Spasimir Domaradzki
on October 11, 2016 at 12:12:56 pm

Thank you for the kind reply. It was quite helpful.

Again, I wish you and Poland all the best. I wish there were something helpful in my own country's political practices (not theories) to help you - but, it would appear that the USA is on a more pronounced downward spiral. I would attribute much of that to a lack of *prudence* as you suggested to Scott below.

take care
and good luck
gabe

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gabe
on October 16, 2016 at 08:40:37 am

"The other is generational change based not on intellectual merit, but on blind loyalty on the part of prominent officials’ assistants and secretaries. The parties are on autopilot, with very little genuine articulation of ideas and visions. This impoverishes the platforms offered to the people of Poland, and makes them non-accommodative to the changing political reality. Such a situation naturally pushes people away from politics."

Very unfortunate situation that one could observe also in Bulgaria to a far greater extent. And the result is: mass emigration, total disgust from politics and continuing decline of the society, which is dangerous for the very existence of the democratic framework. Thank you, for the profound analysis of the Polish case.

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alexandar nikolov

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.