Poland before the election: How to reverse illiberalism

In the end, it does not matter whether there were a million participants or not. The opposition march in Warsaw on 1 October was a great success. The weather played along and the streets of the Polish capital were flooded with crowds. Donald Tusk, the former president of the European Council who returned to Poland two years ago to end the eight-year reign of his nemesis and rival Jaroslaw Kaczynski, triumphed. The opposition leader called for this march as early as June. On Sunday, he spoke of the third Solidarnosc wave that would restore the battered democracy and reunite the divided nation. Solidarnosc, the first and only free trade union in the communist bloc, was permitted in 1980 following enormous pressure from citizens. In 1989, it fought for freedom and democracy in Poland and contributed to the fall of communism. Now, according to Tusk, the parliamentary election on 15 October 2023 is to become a similar caesura: a new chapter in the history of democracy.

Balance sheet of a coup d’état

After the Law and Justice government was elected in 2015 with almost 38 per cent of the vote, it carried out nothing less than a brazen coup d’état against the liberal-democratic constitutional order. It disempowered, politicised, or corrupted the institutions enshrined in the constitution – the Constitutional Court, independent courts, public television, the prosecutor’s office – by removing the restrictions on power characteristic of liberalism to protect minorities.

What followed can be described as a tyranny of the (parliamentary) majority. Research projects, such as the Bertelsmann Transformation Index, have highlighted Poland’s continuous decline in democratic standards. Under the Law and Justice government, the majority of Poland’s rankings for political transformation dropped, in some cases significantly. According to the 2022 country report, the index on the separation of powers dropped from the highest score of ten points to only five; the index on the performance of democratic institutions fell from ten to six points; and the election index declined from ten to seven points – for the first time since 1990. If he manages to secure a majority at the upcoming ballot, Tusk would have to reverse these changes – not within eight years, but within a few months, meaning he would have to square the circle.

Hardened fronts

Whether it will actually come to that will remain uncertain until election day. The fronts are hardened and the balance between the populist Law and Justice party, which has been in power since 2015, and the liberal-democratic opposition is remarkably stable. It seems unlikely that the Law and Justice party will regain an absolute majority, even though it now holds a commanding lead in the polls with 36 per cent. Inflation has affected many citizens and there is a growing sense of being treated unfairly, not least because the state’s social benefits are not given out according to need but on a scatter-gun basis. But even the democrats, who are running on three lists (Tusk’s Civic Coalition, the Left, and the liberal-conservative Third Way), cannot be sure of electoral success.

Tusk is a strong leader whose position in the party and among liberal voters remains unchallenged. At the same time, he is like a red rag to many voters, including opposition voters. His negative electorate – those who will not vote for him under any circumstances – is as large as that of his rival Kaczynski. That he, buoyed by last Sunday’s march, will break through the glass ceiling of 30 per cent may prove to be wishful thinking, but it remains a realistic possibility. However, in order to achieve the desired and hoped-for change of power, he would be dependent both on cooperating with smaller partners, but also on a devil’s pact with the far-right Confederation party.

Rebuilding an illiberal system

If the Polish democrats succeed in coming to power after 15 October – with or without cooperation with the far right – they will open a new chapter in the history of European democracy. The current opposition will face a task that no one has ever had to face before: it will attempt to dismantle an illiberal system that was established in the last eight years by seemingly democratic means. European history contains many examples of political transformation towards democracy, both from right-wing authoritarianism (Portugal, Spain, Greece) and from communism (the former Eastern Bloc) or defeated National Socialism (Germany, Austria).

But overcoming an illiberal system that maintains the pretence of democracy is uncharted territory. It might entail greater challenges than the previous cases. The reason is obvious: the current illiberal system was created with the help of apparently legal, but in fact unconstitutional, laws. The Constitutional Court was staffed with apparatchiks loyal to the Law and Justice party, the Supreme Court with people who, according to European courts, are not independent judges. The fact that there is no longer an independent body capable of monitoring political action poses a challenge for the possible new government.

How to restore the principles of the rule of law without violating them at the same time

A new government’s efforts at reform would need supervisory authorities whose influence would show the right way forward for rebuilding the liberal order. After all, on what legal basis should the institutional reconstruction take place? Does the extraordinary situation justify unusual means, perhaps even means that test the limits of legitimacy? These key questions arise amid an extremely tense political situation: with a strong, hostile Law and Justice opposition and President Andrzej Duda, who is in office until mid-2025 and who could use his veto to prevent any legislative project.

Overcoming illiberalism in a liberal way represents an enormous task that will require not only political courage but also perseverance. It remains to be seen whether a new Polish government would have the mettle to face the strong headwinds that are likely. But Europe should follow this battle closely, as its outcome will also significantly shape the political future of the continent.

This article was originally published in German in Die Presse on 11 October 2023.