By Maria Skóra
Today, one-and-a-half years after the right-wing populist government with authoritarian ambitions left office, Poland is a real-time lab for democratic front-sliding. Different tactics deliver mixed results. The presidential election will certainly be consequential for this process. However, some early conclusions from more and less radical approaches to restoring democracy and the rule of law in the country have already emerged and provide useful hands-on evidence for the future.
Overcoming Democratic Backsliding
In the 21st century, democratic decline exhibits a qualitative difference in comparison to similar processes in the past. The attack on democratic pillars is orchestrated and pursued from within by subverting checks and balances and engaging in institutional aggrandizement. If such tactics succeed, curbing rights and freedoms becomes much easier, especially when further legitimized by communitarian, nativist sentiments and facilitated by clientelist redistribution policies. The third wave of autocratization materializes in electoral autocracies, competitive authoritarianism, or dirty democracy, rather than in linear processes culminating in consolidated closed regimes.
Overcoming such a democratic decline presents a novel challenge. Undoing the results of autocratic legalism is not equivalent to democratization sensu stricto – transforming an autocracy into a new democratic regime – or re-democratization – reclaiming previously abolished democratic institutions.
Overcoming the third-wave type of democratic decline requires restoring institutional performance not only according to the letter of the law but also to its spirit – the spirit of democracy.
Hence, the concept of democratic front-sliding comes in hand: rebuilding the necessary political, legal, epistemic, and sociological components of democracy, first dealing with norms, then with institutions. To kick-off the process, an electoral victory of a pro-democratic opposition is needed. Yet, the real battle begins after the transition of power. Democratic front-sliding faces a tactical dilemma: to save what remains of the rule of law and rebuild what has gone missing, must one obey the law – or break it? In other words, play by the rules or resort to procedural transgressions? Both have pros and cons, and both can be applied simultaneously, on different democratic battlefields. Poland offers valuable examples – and some early conclusions.
Democratic Backsliding in Poland
Under the national-conservative United Right government, led by the Law and Justice party (PiS), the rule of law in Poland suffered significant damage. The harm done over the course of eight years was so significant that, in 2023 Freedom House downgraded Poland’s status from “consolidated” to a “semi-consolidated democracy.” Among other areas, the judiciary and the media were visibly affected by a decline in democratic and rule of law standards. Questionable legislation altering competences, creating new bodies, and changing appointment procedures granted excessive political control over the high courts and the public broadcaster. Numerous personnel changes, which placed government loyalists in non-elected offices, facilitated legislative inflation – marked by rapid and widespread amendments – and led to legal chaos, with unconstitutional bills entering into force. This strategy of the PiS government not only allowed for a smooth systemic state capture but also served as a precautionary measure in case of losing the election. Hence, the new government faced not only institutional chaos but also remnants of the old regime, which had the potential to slow down or even sabotage any reform efforts.
The problem with the Polish judiciary is multifaceted. Additional judges appointed to the Constitutional Tribunal, along with the dubious selection of its presidents, turned it into an ally of the regime. The creation of a disciplinary chamber within Poland’s Supreme Court led to a direct confrontation with the EU and resulted in a record penalty payment of one million euros per day for violating judicial independence. Finally, the disorder in ordinary courts stems from the dysfunction of the unconstitutional National Council of the Judiciary (KRS), which is responsible for appointing judges.
Similarly, public broadcasters became pawns in political competition. Although always susceptible to partisan influence, after 2015 they were transformed into propaganda tools of the new government. Managerial bodies were staffed with party loyalists and new governance structures were established alongside the constitutional ones. By actively engaging in the ruling party’s election campaigns from 2019 onwards, the public media failed in their mission and lost their credibility.
None of these issues can be resolved in a conventional and fully legitimate way without a functioning Constitutional Tribunal and a President cooperating with the government in search of remedial measures. With these two elements lacking, the incumbent Polish government had to experiment with alternative therapies.
Front-Sliding Lab Poland: Two Tactics, Different Outcomes?
Facing the looming risk of paralysis in case of inaction, the government decided to tackle the two most urgent issues – the judiciary and the media. It did so by applying two different tactics.
Handling institutions critical to the systemic foundations of the state, Justice Minister Adam Bodnar tried to play by the rules. He worked on draft bills with diverse stakeholders to draw on their expertise and include multiple perspectives, refrained from applying collective responsibility to judges appointed by the defective KRS, invoked EU & international law, and appealed to the conscience of the Constitutional Tribunal judges to help heal the situation in the judiciary.
In contrast, the crackdown on public media was abrupt, with Culture Minister Bartlomiej Sienkiewicz, opting for procedural transgressions. In the early days of the new government, the minister dismissed their boards by invoking the Code of Commercial Companies – a legal basis that many argue does not apply to public media. The Constitutional Tribunal – loyal to the former government – attempted to block the move, but Minister Sienkiewicz ignored it. A new supervisory board of Telewizja Polska (TVP) was appointed, the news channel was temporarily taken off air, and many productions were deleted from the media archive. When the now-outgoing President Duda vetoed funding for public media in the budget bill, the Culture Minister reacted by placing TVP, Polish Radio, and the Polish Press Agency into liquidation. In response, PiS politicians occupied the offices of the public broadcaster.
These two parables illustrate the dilemmas of a front-sliding tactic. While efforts to restore judicial independence were immediately acknowledged by watchdog organizations and the European Commission, the impasse persists – even as the government resorts to increasingly daring measures. The public broadcaster and information agency were almost completely freed from the partisan influence of the outgone PiS government, yet the overhaul was not clean, and the pro-government bias remained. The times of direct political interference are over, but according to preliminary watchdog reports on ongoing reforms, the public broadcaster is not always neutral and objective, favoring the parties of governing coalition.
Unfortunately, the impact on public trust in the government has been limited. Public perception of Justice Minister, Adam Bodnar, and former Culture Minister, Bartłomiej Sienkiewicz remained poor, with both distrusted by 22% of respondents, despite different strategies.
This showcases how difficult it is to communicate with the general public. Bodnar’s academic profile – as opposed to that of a professional politician – and his transparent actions might not be enough in an era of polarization, permanent campaign mode, and the utter inflation of the term “rule of law” in the public discourse.
While the lack of changes in the Constitutional Tribunal resulted in persistently negative opinions about its activities and low approval ratings, attitudes towards TVP did not improve significantly either, despite a radical overhaul.
Adequate tactics of democratic front-sliding depend on the momentum and the significance of the institutions they target within the broader constitutional order. However, so far, regardless of the tactic employed – the aggressive effort to overhaul the media or the conciliatory, legalistic approach to the judiciary – none of these processes have achieved full success. Poland is still under (re)construction, and only a favorable result for the ruling coalition in the presidential elections could push things forward. If the standoff between the government and the president continues, the experiences gathered so far may guide future efforts ot repair the rule of law under restricted circumstances.
One lesson learned for sure is that rebuilding public faith in democracy will be a far more laborious task than restoring its institutional foundations.
Dr Maria Skóra is a Research Fellow at the Institut für Europäische Politik (IEP) and a 2024/5 re:constitution Fellow, conducting research at the SWPS University in Warsaw, CEU in Budapest and EPC in Brussels. From 2022 to 2024 she acted as Lead Researcher for the RESILIO project.
