How PiS Might Prevent a Peaceful Transfer of Power
The pivotal parliamentary election that will take place in Poland this Sunday may not mark the end of the country’s authoritarian chapter. In the coming days and weeks, several legal and constitutional provisions may be weaponized by the ruling PiS party to thwart the peaceful transfer of power. As Michael Meyer-Resende perceptively observed on this blog, discussing elections in hybrid regimes poses a challenge. Far too often, we use conceptual frames from democratic conditions to describe systems that work very differently in reality.
Meyer-Resende made this point in the context of unfair elections lost by democratic forces in Hungary or Turkey. But as the literature on electoral authoritarianism has always emphasized, it is possible, if not probable, for a democratic opposition to prevail even on a highly uneven electoral playing field. It increasingly appears that Poland may become a historic case in point. Reenergized by the former liberal prime minister and EUCO president Donald Tusk, the country’s democratic forces are well positioned to deliver a stunning upset on Sunday. If this indeed materializes, we must heed Meyer-Resende’s advice and resist the temptation to think of the critical post-election days and weeks as a regular democratic transfer of power. Instead, what will happen should be understood as an inherently perilous collapse of an authoritarian regime.
The Authoritarian Dilemma
Consider the political stakes that Poland’s de facto ruler, Jarosław Kaczyński, and his top lieutenants, including the nominal president of the country, Andrzej Duda, face. Tusk and the opposition have openly outlined their four-pronged electoral platform. After the victory (the first step), Tusk promised “a reckoning with evil” followed by a “redress of wrongs” – both, in his eyes, necessary for the final phase of “reconciliation among Poles.”
Tusk’s plan is understandable, given the brutal toll of the last eight years of the PiS regime. The wrongs include the murder of Gdansk mayor Paweł Adamowicz, mercilessly vilified in the PiS-controlled media; the death of a teenage son of an opposition MP who killed himself after PiS-controlled radio outed him as a pedophile victim; a number of women dying of pregnancy complications after the barbaric anti-abortion decision of the so-called “Constitutional Tribunal” fully captured by PiS; LGBT people (including teens) driven to suicide by methodical dehumanization by the government; dozens of refugees dying at the Polish-Belarusian border as a result of the government disregarding the Refugee Convention of 1951; victims of lethal police brutality (which, in the US, would trigger national outrage) and torture reported in Polish prisons. To that, we should add other evils, including the ruthless harassment of principled judges, widespread surveillance of the opposition, grotesque politicization of state-owned media, and omnipresent graft of the increasingly demoralized apparatus of power. And last but certainly not least, key PiS leaders have engaged in numerous instances of criminal abuse of power, often for personal or financial benefit – a crime punishable by up to a decade-long imprisonment under Article 231 Section 2 of the Polish penal code.
The sheer weight of the legal responsibility for all these wrongs creates a classic authoritarian dilemma. Brazen attempts to cling to power following a lost election may be met with both domestic and international condemnation. But can those risks really deter authoritarian rulers facing also dire legal consequences? History has seen a range of behaviors in such circumstances, from the peaceful yielding of power by Augusto Pinochet or Wojciech Jaruzelski to the extralegal or violent resistance of Donald Trump or Leonid Kuchma. It is fair to conclude that the authoritarian course of action in such cases is determined by several often idiosyncratic factors, which include the ruler’s assessment of the chances of their resistance, the subjective perception of their legitimacy, the advice they receive, attitudes of the leadership of the military and law enforcement agencies, and the intensity of the (path-dependent) reactions of the regime’s electoral base.
Three Roadblocks for a Peaceful Transfer of Power
In short, it is impossible to predict how PiS and Andrzej Duda will behave in the instance of the opposition’s victory. The plausible scenarios range from the president matter-of-factly offering Donald Tusk the mandate to form the new government to a predetermined resistance. Poland’s Western European and American partners and the international legal community should hope for the best but prepare for the worst.
Legally, three main steps in the transition of power can go seriously wrong. The first one lies in the Supreme Court, which is tasked with declaring the validity of the election. As of now, the majority of judges in the Court have been appointed by the so-called “National Council of Judiciary,” unconstitutionally captured by PiS in 2018. To make things worse, as part of its legislative sweep, PiS assigned the competence of declaring the validity of the elections to the new Extraordinary Review and Public Affairs Chamber, fully controlled by the PiS-appointed judges.
This chamber has already demonstrated its political subservience by dismissing the concerns over the 2020 presidential election won by Mr. Duda. At the time, the gist of PiS’s manipulation was their decision to push through the election amidst the COVID pandemic despite clear provisions of Article 228 Section 7 of the Polish constitution that requires rescheduling of a national election during natural disasters and other emergencies. If three years ago, the unconstitutionally staffed chamber allowed PiS to ignore the above-mentioned constitutional norms, it raises questions as to whether this body can show more independence this time around. Especially given that the jobs of the very judges illegally appointed to the chamber may be at stake should the opposition take power.
The Role of the President
The second danger rests in the process of appointing the prime minister, outlined in Articles 154 and 155 of the Constitution. This process is divided into three stages. In the first, President Duda can nominate whomever he chooses as prime minister and, on the new premier’s motion, the entirety of the new cabinet. Duda will likely select a candidate proposed by PiS. A convenient justification may be that, although PiS may fall well short of the majority in Sejm, it may be the largest single caucus, given that the democratic opposition is running in three separate blocks.
The new cabinet must swiftly seek a vote of confidence in the Sejm. But importantly, it remains fully in power until the president appoints the next prime minister and the cabinet. This is crucial given the untested second stage of the constitutional process of government formation, which has never been used since the basic law came into force in 1997. Article 154 Section 3 of the Constitution states that if the cabinet appointed by the president in the first stage fails to secure the vote of confidence within 14 days, the Sejm itself “chooses” (or, in another translation, “elects”) the prime minister and the cabinet.
And here comes the critical twist: the chosen cabinet does not automatically take over from the cabinet appointed by the president in the first stage. The Constitution, instead, states that “the President of the Republic shall appoint the Council of Ministers so chosen and accept the oaths of office of its members.”
An Authoritarian Déjà Vu
For any observer of the Polish democratic collapse over the last eight years, this constitutional reference to a ministerial duty of the Polish head of state to formally appoint high officials chosen by Sejm should immediately ring an alarm bell. For it is precisely President Duda’s refusal to carry out an analogous duty that started Poland’s constitutional crisis. It was in the fall of 2015 when Duda declined to take oaths from three justices of the Constitutional Tribunal duly elected by Sejm. Duda has also repeatedly insisted on his prerogative not to appoint judges elected by the National Council of Judiciary, both before and after its illegal takeover in 2018.
It is therefore possible that the president may ignore his clear constitutional duty to appoint Donald Tusk as prime minister, even if the latter receives majority support in Sejm. Duda can instead try to force a move to the third stage of the constitutional process, in which he again has the right to pick the prime minister and the cabinet. If he, for instance, reappoints his allies from the first stage, that cabinet will likely fail to secure Sejm’s vote of confidence. However, in that case, Duda can claim that Article 155 Section 2 of the Constitution requires him to dissolve the parliament and call for a new election. In the meantime, his handpicked cabinet would remain in power. The mere repeat of Duda’s unconstitutional behavior from 2015 may give PiS a redo of the national election in early spring of 2024 while keeping the full power of the government.
Dismantling the Mafia State
If all those dangers fail to materialize and the opposition takes over, it will still face an extraordinarily challenging legal and political landscape. During its eight years in power, PiS has thoroughly captured the state institutions. The new government will need to make tough choices about what to do with a host of illegally appointed bodies, including the so-called “Constitutional Tribunal,” the majority of the Supreme Court, and as much as 30% of the general judiciary. The government will encounter diehard PiS loyalists at every level of the prosecution service, police and security services, public broadcasters, and state-owned enterprises. Only if the process of dissolving this “Mafia State,” to use Balint Magyar’s well-known expression, is achieved will we be able to conclude that the transfer of power to democratic forces has been complete.
Kisilowski, Maciej: The Election’s Aftermath: How PiS Might Prevent a Peaceful Transfer of Power , VerfBlog, 2023/10/12, https://verfassungsblog.de/the-elections-aftermath/, DOI: 10.59704/4a89ec508a1f3eeb.