Polish Democracy at a Crossroads

On October 15, Polish citizens will participate in a parliamentary election billed as the most important national poll since 1989. A cursory glance at our assessments of Poland would suggest that a textbook example of a free and fair contest is imminent.

But since the Law and Justice (PiS) party came to power in 2015, Poland has actually experienced the swiftest democratic decline in the region. The government has instituted legal changes to weaken the independence of the judiciary, while voters encounter a media environment increasingly affected by bias.

From peak to valley

It wasn’t always this way; a decade ago, Poland was a democratic exemplar, with “every election in postcommunist Poland…[being] declared free and fair by international observers and domestic monitoring bodies.” But recent contests have fallen short. Organization for Security and Co-operation in Europe (OSCE) observers issued a dim report on the 2019 parliamentary elections, which were marred by the misuse of public funds and a media bias that “adversely impacted the opportunity of voters to make an informed choice.” That contest was also stained by extreme and discriminatory discourse.

Voters encountered more of the same in the 2020 presidential poll. Media coverage of opposition candidate Rafal Trzaskowski, for example, was far more critical than that of President Andrzej Duda. Duda also benefited from the trappings of office; as president, he could skirt COVID-19 health measures to meet voters.

Winning the game by changing the rules

Ahead of next month’s elections, PiS and its governing allies have used their legislative power to tilt the playing field in their direction. In March, the government amended the electoral code to increase the number of polling stations in towns and villages and to provide free transportation for elderly and disabled voters. While increased access to voting is typically beneficial for voters, these changes primarily impacted areas with a key demographic typically supportive of the incumbents. These changes were made with little consultation and introduced only months ahead of the polls.

Then there is the Law on the State Commission, which was introduced in May. That law established a commission to investigate Russian influence over Polish affairs and was powerful enough to effectively force public officials from their posts in its original guise. While the threat emanating from Moscow is real, the law applied a vague definition of what counts as influence. Those ejected from office, meanwhile, would have had little recourse over the commission’s decisions. The commission’s members would also be selected by the parliament’s PiS-controlled lower house. 

The domestic and international reaction was swift. Hundreds of thousands of Poles protested, while local rights groups and international partners weighed in to criticize the legislation and warned that it could be used to target opposition members (which is why the law is commonly referred to as “Lex Tusk,” referring to former premier and opposition leader Donald Tusk). In response to that backlash, President Duda sought to dilute the law, which he had signed days before, by calling for amendments. A weaker version, which does not empower the commission to oust officials, was ultimately signed into law in August. But by introducing the commission in the first place, PiS demonstrated a disregard for democratic principles and ironically employed a tactic more commonly seen in authoritarian contexts.

Putting a finger (or four) on the scale

Besides the commission, PiS and its allies have sought to secure an unfair advantage in other ways, such as skirting campaign finance rules, imposing legislative changes to weaken judicial independence, and holding referendums on issues critics say are likely to intensify polarization.

With the campaign slogan of “Safe Future for Poles” as a backdrop, PiS released four referendum questions in August. Voters will not only be selecting the parliament but will answer questions on the future of state-owned enterprises, immigration, a fence meant to keep desperate migrants and refugees from escaping Belarus, and the retirement age. Critics say these questions are politically loaded and designed to keep the opposition on the defensive. Experts have called the referendums a “falsehood” and emphasized “its detachment from Poland’s democratic needs.” The referendums also provide PiS with an opportunity to sidestep campaign finance regulations and again use public funds for partisan ends. Additionally, foundations with links to state-owned companies, which have heavily donated to PiS, aim to participate in the referendum campaign.

PiS has undertaken a years-long effort to implement reforms of the judicial branch, weakening its independence. Since taking office, PiS has curbed the power of top courts, placed progovernment judges on the benches, and scrutinized or reassigned those who display independence. The government, which has ignored criticisms from the European Union (EU), has signaled its intention to go further if it wins another term. If a referee as compromised as the Polish judiciary considers a postelection dispute and rules in PiS’s favor, the public’s confidence in the next government may be eroded.

Cause for alarm and hope

For an election to be free and fair, its freeness and fairness must be total, from the campaigning to the counting, and a country’s governing institutions must be up to the task of ensuring those qualities. The changes ushered in by PiS have elections experts concerned. The EU has withheld billions of euros over Warsaw’s rule-of-law violations, EU bodies have continued to voice their concerns over the state commission, and parties in the European Parliament have called on the OSCE to mount a full-scale observation mission.
Voter turnout may well prove historic this election. No matter who Polish voters select, these elections provide an opportunity for the winners to recommit themselves to the democratic ideals and standards that have done so much for the nation since 1989.