The Crisis
There are currently several key institutions in Poland undergoing a crisis of legitimacy: the judiciary as such, including individual crises surrounding the Constitutional Tribunal, the Supreme Court, the National Council of the Judiciary (KRS) and the State Prosecutor, but also public media, in particular state television (TVP), and state education; the independence of (some divisions of) the police has been questioned, as has the independence of the National Bank and Poland's membership in the European Union - which has been perceived to be in conflict with its national sovereignty.
The latter conflict has led to the suspension of payments to Poland from the EU's Recovery Fund (in Polish referred by the abbreviation for the "KPO" plan): the European Commission has blocked the transfers pending reforms to restore law and order to meet EU standards.
There is also the prospect of proceedings against some of the highest state officials and former officials, a subject currently being debated by legal experts. For example, Professor of Law Andrzej Zoll, President of the Constitutional Tribunal 1993-1997, has expressed criticisms in an article from February 2023 entitled "Can we even say that we still have a Constitutional Tribunal?" (It is noteworthy that Zoll is considered to be broadly on the political right, having frequently expressed qualified opposition to abortion from a legal perspective.)
Warsaw University's Professor Marcin Matczak has drawn comparisons with the ongoing American crisis surrounding Donald Trump.
Not just a legal or even constitutional problem, but a question of legitimacy
So the challenges are broader than a series of (complex) legal issues (legal processes that have to many loopholes) but also deeper than the scandals that always accompany the cut and thrust of political life.
Taken together these conflicts seem to amount to a general constitutional crisis raising doubts about the extent to which the ideals, values and principles of the Polish Constitution are being implemented. This article begins with two possible, perhaps complementary, characterisations of the crisis.
One Overview: Poland's downgrading in international civilisation indexes
The first overall characterisation of the current crisis can be gleamed from international "civilisation" indexes from academic and NGO centres monitoring freedom and democracy.
Freedom House has characterised what it perceives as Poland's decline as follows:
"Since taking power in 2015, a coalition led by the populist, socially conservative Law and Justice (PiS) party has exerted significant political influence over Poland's state institutions and damaged the country's democratic progress. Recent years have seen an increase in nationalist and discriminatory rhetoric."
However, in its more detailed analysis of Poland for its 2022 report, Freedom House has "only" significantly downgraded Poland in one category (1 out of a possible 4 points for "Is there an independent judiciary?). In two other areas Poland has only 2 points out of a possible 4:
- Do laws, policies, and practices guarantee equal treatment of various segments of the population?
- Does the government operate with openness and transparency?
While Poland's evaluations represent a definite regress in standards of liberty, they are not cause for claims of "fascism" or "communism" that have characterised Polish political statements and media articles (similarly to many other countries.)
The Swedish academic index V-DEM has been more critical, in 2021 "distinguishing" Poland as the world's most rapidly autocratising state - not the most authoritarian by any means, but demonstrating the fastest rate of decline. Poland was downgraded in the categories of V-DEM from "liberal democracy" to "electoral democracy".
In 2023, V-DEM warned that Poland is "on the verge of becoming an electoral autocracy" - the next category of V-DEM, one position above "closed autocracy" - the most authoritarian regimes.
However, academics such as Salvatore Babones have criticised the V-DEM index for bias, in particular against large states like India. Babones suggests a better rule of thumb for judging democracies would be "Is there a real chance for the opposition to win in the elections?" Of course, this is a much lower standard.
A Second Overview: Different views of democracy
Another overview of the Polish crisis, one which is less damning to the Law and Justice administration, is that they have simply represented a different view of democracy, a populist view, consciously opposed to the perspective of liberal democracy.
Liberal democracy, also favoured in the V-DEM indexes, gives a crucial place to "checks and balances" - independent bodies and segments of society that are not under the control of the government, indeed, conversely provide a measure of protection against bad government. Law and Justice's attitude has frequently denied the ideal of liberal democracy, not in those terms but by referring to the "Sovereign" - the voters of the victorious party whose wishes must be respected. Professor Matczak refers to this as the philosophy of ABBA with their song, "The winner takes all."
In the USA this kind of attitude that the voters of the winning party have in some sense "more rights" has been referred to as "majoritism", and sometimes given a particularly Christian interpretation with the "Moral Majority" movement.
Has President Duda provided "checks and balances"?
Poland's President Duda has made contradictory statements on the liberalism-populism debate (for example here, in an interview during the last presidential campaign "What kind of President do I want to be?"). He has admitted that he is not personally happy when state television becomes a means of aggressive propaganda, but also that this state of affairs is "to be expected". He also complained that as President he did not receive a detailed proposal to reform public media - one which he would be glad to consider.
The sociologist Salvatore Babones has defended a populist vision of democracy, criticising the liberal democracy model as frequently giving too high a place to "elites" such as the media elites in the USA, which, he claims, overwhelmingly support Biden.
In the next article in this series, the conflicts/crises surrounding individual institutions will be summarised.
Sources: The Polish Constitution, politico.eu, Freedom House, V-DEM, wyborcza.pl, Impoderabilia TV
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