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February 26, 2019

Polish Government Extinguishing Rule of Law: The United States Must Make Clear to Its Close Ally that Values Matter, Authoritarian-Style Policies Not Acceptable in NATO

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This article originally appeared in The Anatomy of Illiberal States: Assessing and Responding to Democratic Decline in Turkey and Central Europe, published by The Brookings Institute.

Overview

In October 2015, the Law and Justice party (PiS) won an outright majority in parliament with 37.6 percent of the vote, avoiding the need to form a coalition government. The party ran a moderate though populist campaign, but after the election took a decidedly nationalist turn. Party leader Jarosław Kaczyński (who is a member of parliament but holds no other public office) crafted a motto of “good change” as a revolt against what he deemed the privileged establishment: elites that had turned toward the EU and the liberal world order and, according to him, against the interests of Poland. 

The Law and Justice party’s philosophy is grounded in the belief that when domestic and other European elites created a post-communist constitution in 1997 they did not represent the interests of the “real Poles” that are members of PiS, so party members  may freely violate its provisions. Interpreting its election victory as a broad mandate from the people, PiS believes that it alone may define rights and obligations under the Constitution, therefore courts should have no power to defy or criticize the executive and legislative branches. Kaczyński’s disdain for constitutional checks and balances was solidified when, during the prior period of Law and Justice government, from 2005 to 2007, in which he served as prime minister, the Constitutional Tribunal repeatedly blocked his policies.   

Combining attacks on the EU with xenophobic rhetoric to exploit the refugee crisis, the Law and Justice approach proved to be an overwhelming political success and carried the party back to power.

The Law and Justice campaign against democratic institutions began in November 2015 with an effort to undermine the Constitutional Tribunal, but then went on to deconstruct step-by-step the entire judicial system, independent media, electoral systems at every level, and civil society – basically, any institution that could challenge its power. Many of the government’s methods violated the Constitution and accepted legal procedures. Employing a new method of expedited legislating, Law and Justice uses “Private Member Bills” so that expert consultation is not required and votes can be fast-tracked. When the Constitutional Tribunal ruled such actions unconstitutional, or mandated stays, the government ignored the rulings. In addition, shortly after taking power, Law and Justice purged the public administration and civil service, keeping only loyalists. This focus on loyalty above legality, and on centralization of control, have earned the government comparisons to a neo-Soviet leadership. While legislated changes have been incremental, the cumulative effect has resulted in structural transformation, likened by some to boiling a frog.

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