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How to Dismantle an Illiberal Democracy

There is no clear roadmap. But Poland may be setting out on its first steps in stamping out populism and holding those responsible for the worst violations of the rule of law. 

By Jarosław Kuisz and Karolina Wigura

December 2023

“Ladies and gentlemen, on 4 June 1989, communism ended in Poland!” The actress Joanna Szczepkowska made the spontaneous declaration that very day—the day of Poland’s first partially free elections since the communist takeover—on Television Journal (Dziennik Telewizyjny), then the country’s most important national news program. This sentence has since been quoted so often that it has passed into legend.

We might now echo Szczepkowska’s words and say that on 15 October 2023, populism ended in Poland. Something astonishing indeed happened this autumn. After eight years, the people ousted the populists from power. Nearly three-quarters of eligible voters went to the polls—more than the 62 percent who voted in the first round of the legendary June 1989 elections that took place as the Iron Curtain was falling.

The October election result was not a fait accompli. There were justifiable doubts ahead of the vote about whether it was even possible for the democratic opposition to win. Hungary and Turkey have shown how regimes can change the democratic rules of the game to turn elections into empty rituals. In Poland, however, civil society and the political opposition proved strong enough to survive the ruling Law and Justice (PiS) party’s attempts to monopolize power. The populist PiS party made numerous mistakes that led to its downfall. Above all, the party alienated moderate voters with its mix of political and religious radicalism.

This month, Prime Minister Donald Tusk’s coalition government took power. Now many supporters of the new government are calling for PiS to pay for its transgressions against the rule of law. There is good reason to shun leniency: The party had already shown authoritarian inclinations during its previous stint in power (2005–2007), but no one was held accountable for the abuses. In fact, when Civic Platform took the helm after PiS’s 2007 loss, the then prime minister Donald Tusk went so far as to declare a “policy of love.” This time, the mood is different. Today, even Tusk, prime minister once again, seems to be hinting that generosity should have limits.

Stepping into the Same River?

After 1989, the famous Russian anticommunist Vladimir Bukowski called for a “second Nuremberg.” If the first was for the Nazis, he argued, the second should be for the communists. Yet in Poland, members of the former communist regime suffered no systematic punishment. As the sociologist Bronisława Grabowska described in her book The Post-Communist Divide, the lack of a clear break between communist and postcommunist regimes contributed to the fracturing of the anticommunist opposition. This would become one of the central political divisions in Poland after 1989.

Some politicians, public intellectuals, and citizens demanded retribution for the communist regime’s abuses, while others praised the peaceful transition and policy of conciliation. The process of reckoning with a complicated national past marked by mass human-rights violations is known as “transitional justice.” In Poland, the first phase of this effort seemed to consist mainly of “closing the book” on the past. But no one was fully satisfied with this. Friendships were broken and families divided by the disputes of the postcommunist era. Many who advocated a harsh reckoning for the communists joined PiS.

Now, in late 2023, a second wave of “transitional justice” is suddenly looming over Poland. This time, however, the transgressions of the populist regime are overshadowing disputes about accountability for the crimes of communism. PiS had barely taken power in 2015 before violating the 1997 Constitution by not printing a Constitutional Tribunal ruling in order to avoid implementing it and by packing the court in violation of the constitution. The party may have campaigned this year on rebuilding state institutions and social policies, but it violated the rule of law throughout its entire 2015–23 reign.

Poland’s new government must therefore do more than just return to liberal democracy; it must address transitional justice. Prime Minister Tusk and his coalition government must also stabilize the political system to ensure that populism does not return in the next election. The future of democracy in Poland hangs in the balance.

New Prospects, New Problems

After 1989, when the countries of Central and Eastern Europe regained their independence, communism was treated as something imposed by the USSR. Punishing the regime’s collaborators therefore served a dual purpose: to penalize criminal acts and stigmatize “traitors to the fatherland.” It also signified a political break with the country’s recent past.

Populism today, although part of a global phenomenon that spans countries from the United States to Hungary and Turkey, also grows from local roots. The PiS’s eclectic agenda was based on sovereigntism, with deep roots in Polish history and national identity.

Thus it is not easy to speak about the “national treason” of politicians brought to power by the sovereign people in parliamentary elections in 2015 and 2019. If the semantic confusion were not enough, the populists continually presented themselves as “true defenders of the motherland.” The project of objectively assessing whether they harmed the country’s interests remains another matter. One thing is certain, however: interpretations of the events of 2015 to 2023 will be in dispute for a long time.

The new government should therefore focus attention on whether and how suspected criminals can be punished for specific acts. At present, there are a number of cases that should be tried immediately. These include the 2015 appointment of judges to the Constitutional Tribunal in contravention of the law; the attempt in 2020 to arrange a supposedly unconstitutional presidential election by mail-in voting during the pandemic; and the 2023 visa scandal, in which members of the government had illegally sold visas to non-EU citizens.

These are illustrative cases and may be just the tip of the iceberg. Naturally, the leader of the Law and Justice party, Jaroslaw Kaczyński, should be held responsible. But legally proving allegations against him will likely be difficult, as other PiS politicians have been taking blame for his crimes.

The Objective: Stability

The first and the second waves of transitional justice in Poland share the stated goal of building and ensuring the stability of a liberal democracy. The practical difficulties are also similar. In 2023—as after 1989—people of the previous regime still occupy positions in the state. Moreover, Poland is now part of the EU and its international legal order. Anyone who thinks that the populist sovereigntists will not use this fact to their advantage is mistaken. They have already launched international actions to defend their positions. For example, Adam Glapiński, the head of the National Bank of Poland and personal friend of Kaczyński, has turned to the EU to help prevent his ouster, which Tusk has repeatedly demanded.

So is there any chance of adequate criminal punishment for those who have violated the rule of law? It may be difficult. The most important PiS figures have parliamentary immunity. After all, the party won 7.6 million votes and retains the first place on the podium, even if it lost power to a coalition of opposition parties.

The project of putting popular PiS politicians on trial has both political and legal dimensions, and will face an entrenched and powerful elite. The chairman of the State Tribunal, for example, was appointed by the previous regime and is the ex officio first president of the Supreme Court. The presidency is held by PiS ally Andrzej Duda, and the Supreme Court and other offices are also now occupied by people associated with the former ruling party. It would be foolish to think that these figures will willingly take part in the second wave of transitional justice. On the contrary, they will likely obstruct action and dilute responsibility for past misdeeds. This leaves parliamentary committees with the bulk of prosecutorial power. According to the Code of Criminal Procedure, these committees do have some means of disciplining those summoned if they do not comply.

In the 1990s, truth and reconciliation commissions dominated transitional-justice efforts (most famously, in postapartheid South Africa), with the aim of establishing a set of facts and revealing them to citizens. In 2023, instead of the truth, we have social media. PiS supporters need only mobilize to disseminate counternarratives; the algorithms will do the rest. In this way, fake news and conspiracy theories can spread like wildfire. Such contemporary challenges will present new hurdles for transitional justice in Poland today.

One should therefore not expect miracles. In the book Transitional Justice, Ruti Teitel describes some popular disappointment with the transitional-justice efforts of the late-twentieth century. This disappointment stemmed at least in part from their shift in focus away from prosecuting past tragedies to reconciling for a better future. Not everyone will be interested in following such a noble path.

It is worth recalling, however, that in the case of Poland (unlike that of South Africa, for example) transitional justice after 1989 was concerned primarily with the mass and individual crimes of communism in a nondemocratic regime. The new wave, in contrast, is addressing violations of law under a democracy. Perhaps these transgressions are more mundane—but perhaps they will also be easier to punish.

Europe as a whole should take note of what can happen when populists rise to power and what to do after they fall from grace. The disappointment and disillusionment with the postcommunist wave of transitional justice stayed within national boundaries, largely because communism had been discredited globally and was no longer a unifying force. Populism, however, is thriving all over the world today. If we leave its crimes unchecked and unpunished, people everywhere may become even more jaded about their politics. This makes events in Poland all the more important. Dismantling an established illiberal democracy in an EU country is, after all, a pioneering task.

Jaroslaw Kuisz is associate professor at the University of Warsaw, the editor-in-chief of Kultura Liberalna in Warsaw, and the author of The New Politics of Poland: A Case of Post-Traumatic Sovereignty. Karolina Wigura is associate professor at the University of Warsaw and a member of the board at the Kultura Liberalna Foundation in Warsaw. They are both senior fellows at Zentrum Liberale Moderne in Berlin. They recently coauthored the book Post-traumatische Souveränität: Ein Essay über Ostmitteleuropa.

 

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