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Will Poland become a “new Hungary”?

The right-wing PiS government may have its candidate and ally, incumbent Andrzej Duda reelected during the presidential election, with the first round taking place today. The outcome of the crucial ballot could shape Poland’s democratic institutions for decades to come. poland hungary

As a Polish-born journalist, Natalia Zaba settled down in Serbia in 2009. ‘‘Back then, there was still a huge hope that a positive change would finally come to this war-torn country’’, Ms. Zaba recalled in a recent interview. The context was indeed rife with feverish excitement. A new Serbian Constitution had been adopted less than three years earlier. The former Yugoslav republic seemed to turn over a new leaf following the deadliest European conflict since World War II and the start, in 2002, of the trial of Slobodan Milosevic.

The time had come for judiciary reforms, too and, in 2009, Serbian authorities implemented a set of sweeping changes. ‘‘There were no doubts that Serbian judiciary needed change, the lawmakers were saying that their aim was to clean up the system from Milosevic’s people’’, Ms. Zaba said.

But things didn’t exactly turn out as expected. poland hungary

‘‘What happened instead was an even greater blockage of the system’’, Ms. Zaba added, while ‘‘the number of court cases rose to 4 million in 2013, out of which only half were processed.’’

As a result, the politicization of Serbian institutions only increased. And more than ten years later, the country is ruled by a strongman, Aleksandar Vucic, who since 2012 has strengthened his grip on institutions and the media. Last Sunday in Belgrade, Mr. Vucic won a landslide victory in parliamentary elections, marked by the wide boycott of the opposition, which called the election illegitimate.

‘‘Today, in 2020 Serbia, if you ask people on the streets about the judiciary, they would only laugh bitterly’’, Ms. Zaba remarked. ‘‘Judges get their instructions on how to rule on their cases from politicians via TV debates and news programmes.’’

As Poles head to the polls, rule of law hangs in the balance

Serbia is now a grim illustration of how an autocratic regime can reshape a country’s key democratic institutions. And Poland, Ms. Zaba’s homeland, ‘‘could face this danger soon if we continue on the same path’’, she fears. That’s because since its comeback to power in 2015, the nationalist and ultraconservative party Law and Justice (PiS), has come under fierce criticism for undermining the rule of law and democratic institutions.

‘‘In Warsaw we also hear that the judiciary needs to be reformed, and it’s very true. The system is not efficient’’, said Ms. Zaba. ‘‘However, destroying judges’ independence is destroying a democratic system, and as the Serbian example shows, has nothing to do with strengthening justice and rule of law. It creates a space for particular interests of privileged party people and organized crime to thrive.’’ poland hungary

Front-runner President Andrzej Duda, up for reelection, is now facing an unexpectedly strong bid by main opposition candidate and Warsaw mayor Rafal Trzaskowski.

Such a concern outlines the democratic backsliding in this post-communist country, as the NGO Freedom House pointed out in its latest annual report. ‘‘If Poland continues on this course, it will join hybrid regimes and autocracies that routinely mete out politicized justice’’, warned the report, condemning the ‘‘aggressive nature of the government’s attacks on judicial independence.’’ 

And as the country prepares for a two-round presidential election, Polish democracy finds itself once again at the crossroads. poland hungary

But the reelection of the incumbent PiS-ally president Andrzej Duda is far from secure, as the main liberal opposition candidate of the Civic Platform, Warsaw mayor Rafał Trzaskowski, is posing a tough challenge ahead of the vote.

‘‘Duda doesn’t have many chances to grow his electorate towards a more centrist one, so he seeks the support of the far right’’, said Konstanty Gebert, a journalist for the independent newspaper Gazeta Wyborcza and former member of the ‘Solidarity’ movement. ‘‘That’s why his campaign has turned so radical’’, he said, echoing a recent remark by the Polish president who claimed that the “LGBT ideology” was “more destructive” than communism. 

‘‘We won’t let any ideology, neither communist, nor socialist, nor any other take it away from us, because this is our identity’’, Mr. Duda said on June 13. ‘‘And let no one try to lead our children on the wrong path, because we won’t allow it.’’

“It won’t be a fair election”

Although the presidential role is mainly a figurehead in Poland, a win of Mr. Duda could mean the tightening of the populist ‘‘moral revolution’’ aimed to get rid of the vestiges of communism in the institutions promoted by the PiS government — which is tacitly led by party chairman Jarosław Kaczyński, who co-founded the party in 2001 with his late brother, Lech. 

In five years, PiS has manoeuvred to take over the Constitutional Tribunal, set up a disciplinary regime for the judiciary and concentrate the powers of the public prosecutor in the hands of the Justice Minister. Not to mention TVP, the Polish public broadcaster, which has become an aggressive government mouthpiece since the nationalist party came to power in 2015. poland hungary

‘‘It won’t be a fair election because of the total control of public media’’, said Konstanty Gebert, deploring the fact that it contributed to deepening the already profound divisions in the Polish society. ‘‘It’s worse than the communist propaganda of the past years, which was never so shameless.’’ 

Nonetheless, the conservative agenda of the government, including the reforms to bring ‘‘more morality to the justice system’’, argued Jan Żaryn, a former Law and Justice senator and nativist historian, is crucial to achieve the so-called incomplete post-communist transition in Poland. ‘‘The judges, this corporations, entered in the newly free Polish state without verification’’, Mr. Żaryn claimed last year, during an interview at his house in Warsaw.

The PiS-led Polish government has been on a collision course with the EU over its controversial judicial reforms.

‘‘They entered from one era to another’’, he said, referring to the judges who were brought up during the 1980s. ‘‘They cannot judge during the present era, that of independence”, he argues, adding that their mindset is still stuck in the communist era.

But the stubborn efforts of Kaczyński’s leading party to reform the legal system in Poland, even while sometimes violating the Constitution, critics say, can barely conceal its true intentions: to extend its political power by reshaping the courts and democratic institutions that emerged after 1989. 

‘‘The idea that all those current judges were inherited from the communist regime is completely risible, because the vast majority of them were not of age at the time’’, said Frédéric Mérand, the scientific director of the University of Montreal Centre for International Studies (CÉRIUM).

‘‘The criticism against the Polish government is that it tried to put the judges under the control of the executive power of the government’’, said Mr. Mérand. ‘‘It’s very subtle because [Warsaw] says that what it does is not that different from what other Western European countries do, like appointing judges by the executive or using disciplinary chambers. Yes, executive powers appoint judges [in Europe] but there are checks to make sure judges are not just supporters of the government.’’ poland hungary

What the Polish government claimed to be a legitimate ‘‘decommuninization’’ process led it on a collision course with Brussels. In December 2017, the European Commission launched, for the first time, proceedings — known as the Article 7 of the European treaties — against Warsaw, a measure that could theoretically lead to sanctions and a suspension of EU voting rights for breaching the rule of law.

Poland isn’t an autocracy yet, as Mr. Mérand pointed out. The PiS government, he said, is working in a ‘‘grey area’’ when it comes to democratic standards. ‘‘They do not reject directly the liberal democracy or the rule of law, but they trim them.’’ 

The latest example of Kaczyński’s disdain for the rule of law came only last month, when his party refused to delay the election until only four days before the scheduled vote. 

Not only was the chaotic decision to hastily impose an all-postal ballot in the midst of a pandemic seen as irresponsible by many Poles, but it was also judged unconstitutional and unfair: any changes to the electoral law less than six months ahead of an election is not legal, according to the Polish Constitution. And while other candidates couldn’t organize meetings because of the ban on public events, Andrzej Duda, as head of state managing a health crisis, was given free room to roam across the country. poland hungary

‘‘PiS is willing to do anything to stay in power, like organizing elections while knowing fraud, electoral failures and endangerment of the population could occur’’, said Romain Le Quiniou, cofounder of Euro Creative, a French think-tank focusing on Central and Eastern Europe. 

‘‘There were legal provisions to postpone the elections, as the government could have invoked the state of natural disaster’’, he added. ‘‘They preferred to put politics above the rule of law.’’

“The country is us”

As Kaczynski finally made up his mind to postpone the election until June 28, it also exposed the fragility of the government coalition in which PiS predominates. Jarosław Gowin, one of his allies of Porozumienie, a liberal-conservative party, publicly opposed from the outset the maintaining of the election on May 10, which forced the PiS leader to review his position and strike a last-minute backroom deal to keep the ruling coalition from imploding.

A victory of the opposition in the presidential election, Mr. Le Quiniou analyzed, could accentuate divisions within the conservative coalition. 

‘‘This election is a sort of hit-or-miss for PiS’’, he said. ‘‘In case of Duda’s reelection, it will be quite simple to gradually continue the deterioration of the rule of law. Will they want to damage it in a very provocative way? How far will they go to keep power? What internal movements will there be within the PiS and coalition?’’ 

Still, the intentions of Jarosław Kaczyński have always been clear, even before his party took power years ago. ‘‘I am deeply convinced that the day will come when we will have Budapest in Warsaw’’ he said during a speech in 2011, referring to the Hungarian Prime Minister Viktor Orbán who consolidated his grip on power and media landscape over the past ten years. ‘‘Sooner or later we will win, because we are simply right’’, Mr. Kaczyński added, upholding the ‘‘conviction that Poland needs far-reaching changes.’’

Following in the footsteps of Orbán’s Hungary depicted by critics as an ‘‘illiberal democracy’’ corresponds to the ‘‘Kaczyński ideology and his will to ‘purify’ the Polish political life’’, said Mr. Le Quiniou. ‘‘The unknown is: how much can be done?’’

Yet, the powers of PiS are limited, compared to the ones of the Hungarian leader, who can count on a “supermajority” in Parliament that gave him the ability to change the Constitution. ‘‘Orbán abolished democracy by using this mechanism’’, said Konstanty Gebert, the Polish journalist. ‘‘PiS doesn’t have it, so it must at least pretend to respect the Constitution, or be violating it. And the past months have shown that for the overwhelming majority of PiS supporters, the fact that PiS is governing illegally is not a problem.’’ 

But even if a Duda victory appears more likely, as opinion polls put him on around 40% — Mr. Trzaskowski, his main rival, would get below 30% at the first round—, losing the presidency ‘‘could put the government on the defensive’’, said Mr. Gebert, while noting that ‘‘a defeat or a weak victory of President Duda would weaken their narrative that ‘the country is us’’’. 

A confrontation with an opposition president could ‘‘push the government towards an authoritarian path and defiance of the law again, without camouflage’’, he added. Because PiS, he believes, could bypass the institutions and the presidential role, as it already ‘‘override the constitution’’ since 2015. 

‘‘The rule of law is based on social trust’’, said Mr. Gebert. ‘‘This is what we were able to build after communism. And once it is sabotaged —not by a dictatorship imposed by a foreigner but a regime with democratic legitimacy —, the degree of social trust collapses. To rebuild it will take a generation.’’

By Patrice Senécal

A Montreal-born freelance journalist, Patrice is mainly focusing on Central an Eastern Europe topics, reporting from Hungary, Poland, Belarus and Bosnia-Herzegovina in the last years. He contributed for Quebec and French newspapers, including Le Devoir, Le Journal du Dimanche, Le Courrier d’Europe Centrale, La Presse and more.