The Polish Politics Blog

Analysis of the contemporary Polish political scene

Does the Polish Peasant Party have a future?

Following its severe battering in last year’s elections, Poland’s agrarian party faces an existential struggle to hang on to what is left of its electorate. Although it retains considerable assets and is still the greatest potential electoral threat to the ruling party in rural areas, it cannot simply rely on possible voter disillusionment with the government to recover its support.

A victim of the anti-incumbent backlash

The agrarian Polish Peasant Party (PSL) was formed in 1990 as the organisational successor to the former communist satellite United Peasant Party (ZSL), although it attempted to legitimise itself by claiming to have roots in the pre-communist agrarian movement which dates back to the Nineteenth Century. Peasant parties were prominent in inter-war Polish politics and the movement provided the main political opposition to the communist takeover in the late 1940s. In the 1990s it was estimated that 25% of Poles were employed in the farming sector, mostly in peasant smallholdings that survived as an independent economic sphere throughout the communist period. This provided the Peasant Party with a substantial segment of the electorate that it could appeal to on the basis of a clear socio-economic interest and collective identity. Consequently, the party was junior coalition partner in the governments led by the communist successor Democratic Left Alliance (SLD) between 1993-97, with its leader Waldemar Pawlak prime minister from 1993-95, and 2001-3. Its support peaked in the 1993 election when it secured 15.4% of the vote and 132 seats in the 460-member Sejm, Poland’s more powerful lower chamber of parliament.

The party returned to office in 2007 when it became the junior governing partner of the centrist Civic Platform (PO), a coalition that lasted two terms until last October’s parliamentary election when it was ousted by the right-wing Law and Justice (PiS) party. The Peasant Party was an unusually loyal governing partner and the coalition was much more cohesive and stable than any of its predecessors; helped by the fact that, given that Civic Platform was a primarily urban grouping, the two parties had complementary bases of support. The party tried to make a virtue of its predictability and self-consciously projected an image as a constructive and moderating force in Polish politics.

A change of leadership at the end of 2012 – when, promising to broaden the party’s electoral base of support beyond its rural-agricultural core, challenger Janusz Piechociński narrowly defeated Mr Pawlak, and then took over from him as deputy prime minister and economy minister – did not really change the dynamics between the two governing parties. In November 2014, the Peasant Party achieved its best result in any post-1989 poll when it finished third in the regional elections with a stunning 23.7% of the vote and, in coalition with Civic Platform, retained control of 15 out of 16 regional assemblies; although this success was marred by accusations of electoral irregularities. However, the party performed disastrously in the May 2015 presidential election when its candidate, deputy leader Adam Jarubas, finished sixth with only 1.6% of the vote. It went on to struggle in the October parliamentary election and only just scraped over the 5% threshold for representation securing 5.1% of the vote and 16 seats in the Sejm, its worst result in any post-1989 poll.

The Peasant Party was a victim of the anti-incumbent backlash that was the main leitmotif of the election, and blamed specifically for failing to prevent the government’s perceived neglect of rural areas and the agricultural sector. Moreover, Mr Piechociński was felt to be less effective than his predecessor and never really established unquestioned authority within the party, facing opposition from activists loyal to Mr Pawlak. Although the party established bridgeheads in some urban areas, it failed to hold on to much of its previous core rural-agricultural electorate: securing support from only 18.6% of farmers and 9.4% of voters living in the countryside, compared with 52.3% and 45.4% respectively for Law and Justice. The Peasant Party only held on to 57% of its voters in the previous 2011 election while 20% switched to Law and Justice.

Struggling to recover

In the aftermath of the election, Law and Justice’s initial reaction was to try and scoop up the remainder of the Peasant Party’s rural-agricultural electorate by marginalising it within parliament and excluding its supporters from key positions in government-controlled agricultural agencies. However, at the same time the ruling party began to realise that there could be some advantages to co-operating with its agrarian rival. For example, Law and Justice has been trying to persuade the Peasant Party to break ranks with Civic Platform at the local level so that the ruling party can take a share of power in at least some of Poland’s 16 regional authorities. These are important bodies because they play a key role in disbursing EU funds and are a major source of local party patronage; and Law and Justice currently only controls one of them. Although the ruling grouping is a direct electoral threat to the Peasant Party because it is competing for the same rural-agricultural voters, the agrarians are also primarily an office-seeking grouping. Indeed, critics argue that the party has developed powerful networks of patronage and interest clusters at the local level. This makes it a pragmatic and flexible negotiating partner that could, in theory at least, link up with Law and Justice if, for example, this could help it to regain some influence in government-run agricultural agencies.

Following its election defeat, the Peasant Party decided to make a radical break with its old guard and elected as its new leader 34-year-old Władysław Kosiniak-Kamysz, employment minister in the outgoing government and one of a new generation of young, articulate party activists. Under Mr Kosiniak-Kamysz’s leadership the party has tried to project itself as a constructive opposition by, for example, abstaining in the initial parliamentary vote of confidence in the new administration. However, this has proved a challenge because since the election the political scene has been polarised sharply by a bitter political dispute over the membership and competencies of the constitutional tribunal, a powerful body which rules on the constitutionality of Polish laws. The Committee for the Defence of Democracy (KOD), a new anti-Law and Justice civic movement, has mobilised thousands of Poles in street demonstrations protesting against the government’s alleged violations of judicial independence and accused it of undermining the fundamentals of democracy and the rule of law. Law and Justice supporters, on the other hand, place the blame for the constitutional crisis squarely on the outgoing government and defend the new administration’s actions as necessary to restore pluralism and balance to the tribunal, arguing that opposition to the party is being orchestrated by well-entrenched, and often deeply corrupt, post-communist elites.

Although it supported the largest anti-government demonstrations, the Peasant Party has also tried to distance itself from the Committee and the other liberal and centrist opposition parties. For example, in May Mr Kosiniak-Kamysz attended a meeting organised by Law and Justice, but boycotted by other opposition leaders, to try (unsuccessfully, as it turned out) and find a compromise solution to the constitutional crisis. This distancing stemmed partly from the fact that the Peasant Party is concerned that the Committee has developed an increasingly liberal-leftist ideological profile on moral-cultural issues which is likely to be off-putting to its small-town traditionalist, socially conservative voters. Moreover, not only has the party found itself marginalised by other opposition groupings in a debate where it has few specialists, but the constitutional tribunal issue is simply not a particularly salient one for its core electorate.

The party is, therefore, much more comfortable talking about socio-economic issues, particularly those that affect rural-agricultural communities. It has, for example, criticised the government for: introducing a new law which the party says has made it difficult for farmers to purchase land; delays in EU agricultural subsidy payments and aid for rural areas; failing to offset the effects of falls in the price of agricultural products; and introducing measures which, it claims, will damage the interests of farmers such as a proposed new water tax. The government has responded by arguing that it was the outgoing coalition and the officials whom they appointed that were responsible for many of the problems that the new administration is now trying to tackle, and denies that its measures will have the negative effects that the Peasant Party claims. For example, the administration says that its new agricultural land trade law will protect Polish farmers from speculators now that Poland’s exemption from EU laws which allow the sale of land to foreigners has come to an end.

However, so far the party has made little impact with all of this. Mr Kosiniak-Kamysz is competent and energetic but lacks gravitas and charisma, while the party’s parliamentary caucus contains many inexperienced deputies and few striking personalities or notable policy specialists, which means that it has almost completely disappeared from national media debates. Moreover, the majority of rural-agricultural voters still appear to be giving Law and Justice the benefit of the doubt. The ‘Pooling the Poles’ micro-blog that aggregates voting intention surveys currently shows the Peasant Party’s support averaging at only 3.2%.

Some commentators argue that this is due to the influence of the clergy given the higher levels of religiosity in rural areas: 59% of Poles who live in the countryside attend Catholic Mass at least once a week compared with 31% of those in towns. For sure, most clergymen in rural areas are clearly sympathetic to Law and Justice, and the political right more generally, but this has always been the case. More significant is probably the fact that the government has delivered on its flagship election promise to pay a 500 złoties monthly subsidy for every second and subsequent child in all families as well as for the first children of poorer households. The so-called ‘500 plus’ programme, which came into effect in April, is simple and easy to grasp and has provided a direct, clearly identifiable and significant boost to low income families living beyond large urban centres who have felt frustrated that they have not shared sufficiently in the country’s recent economic growth.

Still a threat to Law and Justice?

The Peasant Party continues to face an existential struggle to hang on to what is left of its core rural-agricultural electorate against the challenge from Law and Justice. But it is still in the game and, in spite of this, also remains potentially the greatest electoral threat to the ruling party in rural areas. The party’s most important asset is its extensive local organisational base of 140,000 members, thousands of local councillors and a share of control in 15 out of 16 regional authorities. For a party previously wracked by internal divisions it is, for the moment at least, also displaying a surprising degree of unity around Mr Kosiniak-Kamysz’s leadership. The party is fortunate that its first major electoral test (but a crucial one) will be the autumn 2018 local government elections, a poll in which the agrarian grouping always performs better than in national opinion surveys. This is partly due to its strong grassroots organisation but also because there is generally a higher turnout in rural areas in local elections.

There is a chance that rural-agricultural voters will quickly take for granted the boost in incomes provided by ‘500 plus’ and eventually become disillusioned with Law and Justice if the party is not able to deliver in other areas for this electorate. But the Peasant Party does seem to be realising slowly that it still has a long way to go, cannot simply spend the next two-and-half years until the local elections hoping that something will turn up, and has to continue to be more pro-active and distinctive if it is to survive and recover its support.

Has Polish President Andrzej Duda’s first year been a success?

In the year since he was sworn in as President Andrzej Duda has become Poland’s most popular politician and appears increasingly confident in his international role. But he still has to build up his authority within the ruling party if he is to become a significant independent player on the political scene.

Forced to take sides

Last May, in one of the biggest electoral upsets in post-communist Polish politics Andrzej Duda – the candidate of the right-wing Law and Justice (PiS) party, the then main opposition grouping – defeated incumbent President and odds-on favourite Bronisław Komorowski, backed by the ruling centrist Civic Platform (PO), by 51.6% to 48.5%. His success paved the way for Law and Justice’s stunning victory in the October parliamentary election when it was the first political grouping in post-1989 Poland to secure an outright majority, and Mr Duda’s campaign manager, party deputy leader Beata Szydło, became prime minister.

Although careful not to support Law and Justice overtly, Mr Duda used the various political and constitutional instruments at his disposal to promote the party’s programme of so-called ‘good change’ (dobra zmiana) in the run-up to the October poll. For example, in his first major initiative as President he proposed holding a referendum on the same day as the election on one of Law and Justice’s key campaign pledges: reversing the outgoing government’s extremely unpopular pension reforms, that raised the retirement age to 67 from 60 for women and 65 for men (although the referendum proposal was voted down by the Civic Platform-dominated Senate).

Almost immediately after Law and Justice took office, Mr Duda was forced to take sides in an extremely controversial and polarising political dispute over the membership of the constitutional tribunal, a powerful body that rules on the constitutionality of Polish laws. The new government annulled the appointment of five judges elected by the previous parliament to the 15-member body. Earlier these judges were unable to assume their posts because Mr Duda did not accept their oaths of office. However, the tribunal itself ruled that while the appointment of the two judges replacing those whose terms of office expired in December was unconstitutional the other three were nominated legally. Government supporters, in turn, argued that the tribunal did not have the right to make judgements about the constitutionality of parliamentary appointments, and Mr Duda swore in five judges nominated by the new parliament instead

The move met with widespread criticism from most of the opposition and legal establishment, who accused the government and President of violating judicial independence and undermining the fundamentals of democracy and the rule of law. As a consequence, thousands of Poles participated in demonstrations organised by the Committee for the Defence of Democracy (KOD), an anti-Law and Justice civic movement. The government’s supporters, however, placed the blame for the crisis squarely on the outgoing administration, which they argued tried to appoint five judges illegally just before the election to pack the tribunal with Law and Justice opponents. More broadly they defended these actions as necessary to restore pluralism and balance to the tribunal, which they said had been expropriated by supporters of the previous governing party, and claimed that opposition was being orchestrated by well-entrenched, and often deeply corrupt, post-communist elites.

Mr Duda paid a high political price for his unswerving support for the government on this issue. Apart from having to expend much time and political capital explaining his actions, by bringing the presidency into the epicentre of party conflict the crisis made it increasingly difficult for Mr Duda to build bridges with milieu not necessarily naturally sympathetic to Law and Justice, one of his greatest achievements during the presidential election campaign. In fact, the problem was as much the way in which the decisions were taken as their substance: four of the Law and Justice-nominated judges were sworn in at a ceremony held literally in the middle of the night before the tribunal was due to rule on the constitutionality of the earlier appointments. Opinion surveys conducted by the CBOS polling agency found a 20% increase (to 40%) in negative evaluations of the President between November and December, while the number who did not trust Mr Duda rose from 19% to 30%.

Struggling to carve out an independent profile

More broadly, Mr Duda has struggled to carve out an independent profile for himself in his first year as President. The presidency has a particular position in the Polish political system. It is not simply a ceremonial role and, in addition to a strong electoral mandate, retains some important constitutional powers such as: the right to initiate legislation, refer bills to the constitutional tribunal, and, perhaps most significantly, a suspensive veto that requires a three-fifths parliamentary majority to over-turn. However, Mr Duda has quickly signed all of the Law and Justice government’s bills into law. Indeed, a December 2015 survey by the IBRiS agency found that by a majority of respondents (54% to 35%) felt that he did not take his decisions independently of Law and Justice leader Jarosław Kaczyński who, although he does not hold any formal state positions, exercises a powerful behind-the-scenes influence in determining the government’s programmatic and strategic priorities.

Moreover, the President’s competencies are much less significant than those of, say, his French counterpart and real executive power lies with the prime minister. So it is difficult for him to carve out a distinctive role in the domestic political sphere, especially when a presidential term coincides with that of a government led by his political grouping. As soon as the Law and Justice government was elected, therefore, Mr Duda’s promises went on the back-burner and attention shifted to the new administration’s legislative programme. For example, the government’s priority during its first months in office was introducing its costly but generous (and extremely popular) ‘500 plus’ child subsidy programme, which Mr Duda supported but in most citizens’ minds was associated primarily with the Szydło administration. Mr Duda’s two flagship campaign pledges, lowering the retirement age and increasing tax allowances, languished in parliament for several months and, although the government has promised to bring forward legislation in the autumn, it is still not clear when they will be implemented. Moreover, when it appeared to threaten the stability of the financial sector, the President was forced to row back from his key election pledge to help the country’s half-a-million foreign currency (mainly Swiss franc) mortgage holders (who had lost out as a result of the depreciation of the Polish currency in recent years) by forcing banks to convert their loans to złoties.

It is naïve to expect Mr Duda to distance himself from policies which are almost identical to the ones on which he was also elected. Everything suggests that he shares Mr Kaczyński’s political philosophy and perspectives on most issues and personally supports most if not all of the government’s decisions. At the same time, refusing to sign one of the government’s flagship bills would be incomprehensible to Mr Duda’s political base, and while it might draw some short-term praise from Law and Justice opponents they would quickly revert to criticising him again. Mr Duda is also a relatively young politician and may have future ambitions to take over the Law and Justice leadership when Mr Kaczyński eventually stands down, so it is not in his long-term interests either to alienate the party’s core supporters.

Prioritising defence and foreign policy

However, Mr Duda is aware that in order to secure the 50% of the votes that he needs for re-election he also has to appeal to more centrist voters beyond the Law and Justice hard core. Consequently, he has been trying to steadily carve out a more independent political role for himself. The first clear indication of this came in April during the sixth anniversary of the Smoleńsk tragedy, a plane crash in which the then Law and Justice-backed President Lech Kaczyński, Jarosław’s twin brother, and 95 others were killed while on their way to commemorate the 1940 Soviet massacre of Polish officers in the Katyń forest in western Russia. The air disaster is still an open wound for Law and Justice, and Mr Kaczyński and some party leaders have not only accused the former Civic Platform-led government of negligence in planning the flight and mishandling its aftermath but also appeared to countenance assassination as a possible cause of the crash. In his speech at the commemorations, Mr Duda made a symbolic appeal for national unity and mutual forgiveness, prompting Mr Kaczyński to respond that forgiveness was needed but only after those guilty of causing the tragedy were brought to justice.

At the same time, Mr Duda has marked out foreign affairs and defence policy as his main field of activity and appears increasingly confident in this role. Although foreign policy lies within the government’s domain, the Polish Constitution gives the President an informal oversight and co-ordinating role. He can also exercise a powerful informal influence through his foreign visits and high profile speeches on international issues. During last year’s elections Law and Justice made the sharpening of policy towards Russia a crucial test of its effectiveness in ensuring national security, and called for the July NATO summit in Warsaw to strengthen Poland’s defence infrastructure by securing a greater (and preferably permanent) Alliance military presence in the country. Mr Duda visited a large number of NATO member capitals to mobilise political support for Poland’s demands and, in the event, the summit agreed to strengthen the Alliance’s Eastern flank and confirmed the deployment of a 1,000-strong international battalion on a rotational basis on Polish territory.

The summit’s success no doubt contributed to Mr Duda’s steadily increasing popularity, together with the fact that as President he has demonstrated a more open style and greater ability to connect with ordinary Poles than the stereotypical Law and Justice politician. In spite of opposition attempts to portray him as a ‘partisan President’, July CBOS polls found that Mr Duda enjoyed a 56% approval rating (32% disapproval) and remained Poland’s most popular politician with 62% saying that they trusted him (24% did not). However, although he remains unswervingly loyal to the Law and Justice leader, Mr Duda’s attempts to develop a more independent profile also appear to have led to a cooling of relations with Mr Kaczyński, who some commentators argue has been distancing himself from the head of state. For example, the Law and Justice leader appeared to snub Mr Duda when he failed to include the President among those he listed as responsible for the NATO summit’s success; although he quickly corrected himself saying that this was a mistake. Nonetheless, Mr Kaczyński appears to treat not just Mr Duda but the whole government as the implementers rather than creators of policy and leaves little doubt that the party’s most important decision making centre remains the leader’s office.

Popular but lacking a clear role

One year is too soon for a proper evaluation of Mr Duda. For sure, it has been difficult for him to realise his concept of an ‘open’ presidency at a time when the political scene is so deeply polarised around bitter conflicts such as the constitutional tribunal crisis. However, although the crisis damaged Mr Duda’s ability to develop links with certain milieu, the opposition’s attempts to dub him a ‘partisan President’ do not appear to have harmed his approval ratings to any significant extent. Indeed, he remains one of Law and Justice’s greatest political assets with a significantly broader base of support than the party or any of its other leaders. Mr Duda’s main problem is that he has not yet found a clear role for himself and needs to build up his authority within the ruling party if he is to become a significant independent player on the Polish political scene.

Is there an end in sight to Poland’s constitutional crisis?

Poland’s constitutional tribunal crisis escalated last month when the European Commission initiated the next stage of its rule of law procedure calling upon the country’s government to take action or face possible sanctions. But while the crisis is forcing the ruling party to expend political capital defending its position, it does not show any signs of backing down.

An escalating crisis

The row over the tribunal, a powerful body that rules on the constitutionality of Polish laws, is the most serious constitutional crisis to affect the country since the collapse of communism in 1989. It began when, immediately following its victory in last October’s parliamentary election, the new government led by the right-wing Law and Justice (PiS) party annulled the appointment of five judges elected by the previous parliament to the 15-member tribunal. Earlier these judges were unable to assume their posts because Law and Justice-backed President Andrzej Duda did not accept their oaths of office. The move met with widespread criticism from most of the opposition and legal establishment who accused the government of violating judicial independence. The government’s supporters, however, placed the blame for the crisis squarely on the outgoing administration, led by the centrist Civic Platform (PO) party, which they argued tried to appoint five judges illegally just before the election to pack the tribunal with Law and Justice opponents.

However, the tribunal itself ruled that while the appointment of the two judges replacing those whose terms of office expired in December was unconstitutional the other three were nominated legally. Government supporters, in turn, argued that the tribunal did not have the right to make judgements about the constitutionality of parliamentary appointments, and Mr Duda swore in five judges nominated by the new parliament instead. Tribunal president Andrzej Rzepliński responded by declaring that the five would not participate in its work, although he subsequently allowed two of them to do so.

Law and Justice tried to break this impasse in December by amending the constitutional tribunal law to increase the number of judges required to make rulings in the most important cases from nine to thirteen; thereby hoping to oblige Mr Rzepliński to accept the judges appointed by the new parliament. The so-called ‘repair law’ also increased the threshold for tribunal rulings to a two-thirds majority, making the votes of these new appointees more significant, and stipulated that cases would be considered in the order they were received rather than at the tribunal’s discretion.

The government’s opponents claimed that that these changes would paralyse the tribunal and accused Law and Justice of undermining the fundamentals of democracy and the rule of law. As a consequence, thousands of Poles participated in demonstrations organised by the Committee for the Defence of Democracy (KOD), a new anti-government civic movement. The government’s supporters, however, defended its actions as necessary to restore pluralism and balance to the tribunal, which they said had been expropriated by supporters of the previous governing party. More broadly, they claimed that opposition to the government was being orchestrated by well-entrenched, and often deeply corrupt, post-communist elites.

In March, the crisis escalated when the tribunal decided that it was empowered by the Constitution to ignore the changes introduced in the ‘repair law’ and rule on its legality under the old procedural rules, and declared the December amendments unconstitutional. At the same time, the Venice Commission, an advisory body to the Council of Europe human rights watchdog, issued a critical report which said that the December amendments were a threat to the rule of law, democracy and human rights. For its part, the government played down the report’s significance, argued that the tribunal had no power to review the ‘repair law’ (as the Constitution stipulates that its rules are regulated by parliamentary statute), and refused to publish the judgement in the official gazette, a necessary step for tribunal rulings to become legally binding.

Compromise or cosmetic changes?

The opposition’s narrative was picked up by the EU political establishment and Western opinion-forming media, many of whom share their dislike of Law and Justice. In January, the European Commission decided to undertake an unprecedented investigation of Poland under the EU’s rule of law monitoring mechanism. The Union adopted the instrument to complement the so-called ‘nuclear option’ provision in Article 7 of the EU treaties that allows the European Council to impose sanctions on countries found to be in serious and persistent breach of fundamental EU values; in the worst-case scenario suspending their voting rights. The Commission agreed to the first step under the framework: undertaking a preliminary investigation of whether there were clear indications of a ‘systemic threat to the rule of law’ and initiating a dialogue with the member state concerned.

In response, the Law and Justice government strongly opposed Commission interference in what it insisted was an internal matter of a political rather than legal nature. However, it also tried to de-escalate the dispute by saying that it was open to dialogue with the Commission and consultations with opposition leaders to find a compromise solution. As a consequence, another constitutional tribunal bill was introduced in June and signed into law at the end of July. This removed the two-thirds majority threshold and lowered the quorum for tribunal rulings in the most important cases from thirteen to eleven. It also allowed the tribunal president to determine the order in which cases were considered if this was necessary to defend civic rights and freedoms, state security or the constitutional order.

However, the main opposition parties argued that the government was simply buying time until Mr Rzepliński’s term of office expires in December, hoping that he will be replaced as tribunal president by someone more amenable. The new law, they said, made only cosmetic changes and in some ways actually restricted the tribunal even further. Although the government agreed to publish all of the tribunal’s recent rulings, the law failed to recognise its key March judgement that invalidated the December ‘repair law’. It also required the tribunal president to allow the three un-recognised Law and Justice-nominated judges to take part in its proceedings and introduced a new veto mechanism allowing four judges to postpone a case for up to six months. Mr Rzepliński made it clear that he considered the new law unconstitutional and the tribunal could well strike it down.

According to some commentators, the law was rushed through parliament in an attempt to re-assure the US administration ahead of the NATO summit held in Warsaw at the start of July. Law and Justice is much more sensitive to pressure from the USA, which it considers Poland’s most important foreign policy ally, than EU criticisms. Although some government critics suggested that that the constitutional crisis could lead to the summit being downgraded or ending in humiliation for Poland, it proved to be a success with an agreement to strengthen NATO’s Eastern flank. However, US President Barack Obama did express concerns about the constitutional impasse arguing that ‘more work needs to be done’. Government supporters responded by saying that he also praised the parliament’s efforts to end the dispute and that these comments were marginal to the summit discussions.

EU pressure is unlikely to resolve the crisis

Law and Justice hoped that EU institutions would be so absorbed by the fallout from the June UK referendum vote to leave the Union that they would not return to the Polish crisis until the autumn. However, at its July meeting the Commission decided that Warsaw’s efforts did not go far enough and moved to the next stage of the procedure, issuing an official ‘rule of law recommendation’ urging the Polish government to: swear in the judges elected by the previous parliament; publish and fully implement all tribunal rulings; screen the latest tribunal law for compliance with the Venice Commission; and report on progress within three months. Having started the procedure it is difficult for the Commission to back down and it may be using the Polish crisis to signal that it retains a sense of purpose in spite of the Brexit imbroglio. Law and Justice responded by questioning the Commission’s sincerity and arguing that it should concentrate on dealing with the more serious problems that the EU faced rather than interfering in Poland’s internal affairs.

The constitutional crisis is forcing Law and Justice to expend valuable time and political capital responding to criticisms and defending its reputation. Its escalation could overshadow the government’s attempts to implement its flagship social spending pledges, notably the costly but extremely popular ‘500 plus’ child subsidy programme. A March-April survey for the CBOS polling agency found that 45% of respondents supported the tribunal compared with only 29% who backed the government (26% did not know). The crisis is also spilling over into other parts of the political and legal system as the tribunal rules on the basis of old procedures while the government refuses to recognise these judgements, forcing the courts and public bodies to decide whether or not to apply the challenged legislation.

However, with the stakes so high the government does not show any signs of backing down as a result of EU pressure, particularly as this would involve agreeing to actions that it had previously deemed illegal. Law and Justice is also clearly willing to pay a high political price for measures it feels are necessary to ensure that its legislative programme is not de-railed. At the same time, while many protesters and activists genuinely believe the government’s actions are undermining Polish democracy, it is clearly in the opposition’s interests not to reach a compromise and thereby keep public attention focused on a highly emotive touchstone issue around which it can mobilise both domestic and international support.

Moreover, for the moment at least the crisis and ongoing row with the Commission are too abstract for, and do not affect the day-to-day lives of, most ordinary Poles who are mainly concerned with socio-economic issues where the government is more in tune with public opinion than its liberal and centrist opposition critics. While Law and Justice has a significant number of vocal and well-organised opponents, it also retains widespread support among a large segment of the population. A June-July CBOS survey found that 37% of respondents supported the government while 30% were opposed (29% were neutral). Other surveys show that the ruling party retains a clear opinion poll lead over the divided opposition, and this support could solidify when voters start to feel the full impact of social spending programmes such as ‘500 plus’.

Indeed, the Commission’s intervention is something of a double-edged sword: while Poles support their country’s EU membership overwhelmingly, they are more divided over whether the Union should become involved in Polish domestic affairs. While a June CBOS poll found that, by 42% to 34%, respondents felt that the Commission’s criticisms of the Polish government were justified, only a small majority (41% to 39%) agreed that its actions were an acceptable form of pressure. Moreover, only 38% felt that the Commission’s actions were motivated by concern about the rule of law while 41% said that dislike of the Law and Justice government was the more significant factor.

Will there be sanctions?

If the Commission considers that its recommendations have not been implemented then it can propose a motion for sanctions under Article 7. However, as the framework only constitutes a political dialogue without any legally binding recommendations, such penalties require unanimity in the EU Council in one of the three stages of voting. The Hungarian government has already made it clear that it will veto any attempt to introduce such measures and could be joined by other countries concerned about possible Commission over-reach. Law and Justice has also questioned the legality of the Commission procedure, saying that it is based on non-treaty practices invented by officials, and could challenge it in the European Court of Justice dragging the process out even further. Poland’s constitutional crisis shows no sign of ending any time soon.

How will Brexit affect Polish politics?

Poland’s right-wing government, for whom Brexit means the loss of its main EU ally, blames the crisis on over-reach by the Union’s political elites, while the liberal and centrist opposition argues that the country needs to re-join the European ‘mainstream’ and re-build its alliance with Germany. Although Poles appear to be taking an increasingly instrumental approach towards the EU, no mainstream political party questions continued Polish membership and a post-Brexit upsurge in Euroscepticism appears very unlikely.

Law and Justice loses its main EU ally

The prospect of British withdrawal from the EU means that Poland is losing a key ally on a number of important policy issues. As the largest non-Eurozone EU member, the UK government played a pivotal role in preventing the development of a two-speed Europe with the locus of Union decision making shifting to those states that were part of the single currency area. The prospect of Brexit, therefore, raises concerns that further European integration will hasten the process of building a hard core based on the Eurozone, potentially leaving Poland marginalised on the EU’s periphery. Warsaw also saw the UK as a close ally in developing a tough EU response to Russia, fearing that France and Germany were too inclined to strike up cosy bi-lateral deals with Moscow that side-lined post-communist states such as Poland.

Moreover, the current Polish government, led since autumn 2015 by the right-wing Law and Justice (PiS) party, has particular reasons for being concerned about Brexit as it will be losing its main supporter among the large EU member states. The Law and Justice government moved away from the strategy pursued by its predecessor, led by the centrist Civic Platform (PO) party, of trying to locate Poland within the so-called ‘European mainstream’ by presenting the country as a ‘model’ European state at the forefront of the EU integration project and prioritising the development of close relations with the main EU powers, especially Germany. Law and Justice, on the other hand, has argued that Poland needs to be more robust and assertive in advancing its national interests, re-calibrating its relationships with the major EU powers and forming its ‘own stream’ that can counter-balance their influence, identifying Britain’s Conservative government as its main strategic partner in this project.

Although Law and Justice supports EU membership, like the British Conservatives it is also an anti-federalist grouping committed to defending Polish sovereignty, and in recent years has articulated an increasingly fundamental and principled critique of further European integration. It is also a member of the European Conservatives and Reformists grouping, the third largest in the European Parliament (EP), 21 of whose 73 members are British Conservatives. This will almost certainly cease to function after Brexit and if this occurs before the end of the current EP’s term in 2019 then its 18 Polish members, mostly from Law and Justice, will have to join another grouping or sit as independents.

British Conservative MEPs defended the Law and Justice government in EP debates on its dispute with the European Commission, which in January launched an investigation into whether Poland had breached the rule of law following domestic political and legal controversies over the membership and functioning of the country’s constitutional tribunal. It was also expected that the British government would oppose any attempts to introduce sanctions against Poland if the Commission referred the issue to the European Council. So Brexit will leave Law and Justice without its most significant ally in the EU institutions. On the other hand, the Brexit imbroglio will also relieve some of the pressure on Law and Justice as the Commission will now be completely absorbed in trying to deal with the crisis and the EP has already postponed a debate on the state of democracy and human rights in Poland scheduled for its next plenary session in July.

Who is to blame and how should Poland respond?

Law and Justice responded to the Brexit vote by arguing that it was a vindication of its critique of the EU political elite who they say have precipitated mounting Euroscepticm by over-centralising and trying to force their vision of deeper European integration against the popular will. They cited the Commission’s ‘rule of law’ investigation into Poland and plan to impose migrant relocation quotas on member states as examples of such over-reach. Law and Justice called upon the leaders of the EU institutions – notably European Council President Donald Tusk, Law and Justice’s political nemesis who was Poland’s Civic Platform prime minister in 2007-14 – to take political responsibility for the Brexit crisis and resign.

Law and Justice also tried to take the political initiative by calling for a fundamental re-think of the trajectory of the European project, highlighting the necessity of the EU undertaking deep reforms if it is to survive. The party called for a new European treaty that returns the EU to its original role as a strong but loose international ‘confederation’ of economically co-operating nation-states based on a more consensual decision making process and clearly defined division of rights between the Union and its members. This would involve weakening the European Commission bureaucracy, whose role would be restricted to regulating the single market, shifting more EU decision-making power to the European Council and national governments who would be freer to pursue their own policies, and reducing the dominant role of the Franco-German axis. Interestingly, Law and Justice also called for the EU to become a powerful foreign and defence policy ‘superpower’ with the European Council President, selected for a lengthy term, standing at the head of an EU army this is closely integrated with NATO.

The main opposition parties, Civic Platform and the smaller liberal Modern (Nowoczesna) grouping, on the other hand, blamed Law and Justice for contributing to the growth of the Euroscepticism that led to the Brexit vote through its criticisms of the Commission and the Franco-German axis. They called for the government to return Poland to the ‘European mainstream’ by supporting deeper integration and re-building the country’s previously close alliance with Germany. They also proposed re-opening the debate on Polish adoption of the Euro, so that the country was not a second tier EU member but at the heart of a Union that they argue will inevitably integrate more closely around its Eurozone hard core. Although it has not ruled out Eurozone accession (which most Poles oppose) in principle, Law and Justice argues that, given the single currency’s huge problems, it cannot envisage any point in the foreseeable future when it would be advantageous for Poland to adopt the Euro.

EU membership as a civilizational choice

The only calls for a ‘Polexit’ referendum on whether Poland should leave EU have so far come from fringe politicians on the radical Eurosceptic right. Law and Justice’s anti-federalism notwithstanding the dominant view in the ruling party remains that it is in Poland’s interests to remain in the EU and try to reform it from within. Moreover, although Poles are critical of attempts to deepen European integration in a number of areas, notably the migrant relocation scheme, the overwhelming majority of them remain committed to EU membership, unlike in countries like the UK where public Euroscepticism is a powerful political force. Opinion surveys held immediately after the Brexit referendum found support for the EU holding up at around 80% with only 15% against.

A key motivation for Poles voting overwhelmingly to join the EU in the country’s 2003 accession referendum was the idea it represented a historical and civilisational choice to re-unite with the West and the culmination of the post-communist democratisation process. One of the main reasons why levels of popular support for the country’s EU membership have remained so high is, therefore, that many Poles, especially among the older generations, still see the European integration process as part of a symbolic re-uniting of Poland with a Western international community of shared values that they had always considered themselves to be part of culturally and spiritually. This is linked to a feeling that Poland’s geo-political situation necessitates membership of Western international organisations such as the EU for security reasons. All of this makes it difficult for Polish Eurosceptics to construct a really convincing alternative narrative because EU membership appears to go with the grain of the country’s recent history. This is obviously very different from the context in countries such as Britain where it is perfectly possible to construct a historical narrative that does include the country’s membership of the EU.

This idea of EU membership as a natural and obvious civilisational choice has, however, come under strain in recent years due to an increasing sense of cultural distinctiveness that many Poles feel towards Western Europe. This is particularly evident in the sphere of moralcultural values where Polish attachment to traditional morality and national identity stands in stark contrast to the socially liberal, cosmopolitan consensus that predominates among West European cultural and political elites. This issue has surfaced recently in the contrasting reactions of Poles (and other Central Europeans) and West European political elites (although not necessarily their publics) to the European migration crisis. Poles are keen to avoid the kind of cultural and security problems that many of them feel West European countries have experienced through admitting large numbers of Muslim migrants who are seen as difficult to assimilate and embedding violent extremists within their communities.

A more instrumental approach

Moreover, a post-accession younger generation of Poles – who, in contrast to the Brexit referendum trend, appear to be the most Eurosceptic demographic constituency – has developed a less abstract and more instrumental approach to EU membership, with support being driven increasingly by the tangible benefits that it is felt to deliver. Among these are the large fiscal transfers that the country receives, particularly EU regional aid of which Poland is currently the largest beneficiary and many Polish commentators see as crucial to its economic modernisation. The current EU budget, which runs until 2020, was always likely to be the last from which Poland would benefit so substantially and, given that the UK is one of the largest net contributors, Brexit will almost certainly limit the scale of these fiscal transfers further in the future.

Although it has led to skill shortages in some sectors of the Polish economy, the ability to be able to travel and work abroad has also been one of the main pillars of support for EU membership in Poland. The UK was one of the few states that gave immediate and relatively un-restricted access to its national labour market to workers from the post-communist states which, like Poland, joined the EU in 2004. As a consequence Britain has been one of the most popular destinations for Poles seeking work in Western Europe with an estimated 800,000 Polish migrant workers currently living there. Indeed, concern about un-controlled mass EU migration was an important driver of support for Brexit and there will almost certainly be restrictions on Poles hoping to access the British labour market in the future. Much of this Polish outward migration could, of course, simply be displaced to other EU countries, although Brexit may also lead to political pressures for these states to also try and limit access to their labour markets. This, together with a decline in EU fiscal transfers to Poland and the fact that younger Poles in particular appear to have a more instrumental approach towards EU membership, could create the potential for an increase in Polish Euroscepticism at some point in the future. However, these are very much possible long-term trends and in the foreseeable future the prospects of Brexit leading to an upsurge in support for ‘Polexit’ appear extremely unlikely.

Can Poland’s opposition mount an effective challenge?

Poland’s ongoing constitutional crisis has galvanised the right-wing government’s opponents. However, even if protests against the ruling party can sustain their momentum, the divided opposition will struggle to mount an effective challenge unless it can also address Poles’ broader concerns and recognise that they do not simply want a return to the pre-election status quo.

The constitutional crisis is the catalyst

The Polish political scene has been deeply polarised since the government led by the right-wing Law and Justice (PiS) party took office last autumn following its decisive victory in the October parliamentary election. The catalyst and main focus of this has been a bitter political and legal struggle over the membership and functioning of Poland’s constitutional tribunal, a powerful body that rules on the constitutionality of laws. The opposition has been extremely successful in promoting its narrative that the government’s actions represent an attempt to interfere in the independence of the judiciary. This has provided government opponents with a highly emotive touchstone issue which they have bundled up with a number of other measures, such as a new law that they claim politicises public broadcasting, to accuse Law and Justice of undermining the fundamentals of democracy and the rule of law.

For their part, the government’s supporters deny these charges vigorously and defend its actions as necessary to restore pluralism and balance to state institutions that they say had been colonised by supporters of, and milieu associated with, the previous governing party. More broadly, they argue that many Polish institutions have been expropriated by an extremely well-entrenched, and often deeply corrupt, post-communist elite. Nonetheless, the opposition’s narrative was picked up by the EU political establishment and Western opinion-forming media, with whom the government’s opponents enjoy strong links and many of whom share their dislike of Law and Justice. In January, the European Commission initiated an unprecedented preliminary investigation under an EU monitoring mechanism to establish whether the rule of law in Poland was under ‘systemic threat’. The government’s constitutional tribunal reforms were also criticised by the Venice Commission, an advisory body on constitutional matters to the Council of Europe human rights watchdog.

Mr Schetyna lacks an effective strategy

With 138 deputies in the 460-member Sejm, the more powerful lower chamber of the Polish parliament, the main opposition grouping is the centrist Civic Platform (PO) which was the main governing party between 2007-15. Civic Platform has a large number of experienced parliamentarians, considerable financial resources, a relatively well developed grassroots organisational network, and controls 14 out Poland’s 16 regional authorities. In January, the party elected a new leader, Grzegorz Schetyna, who was foreign minister in the outgoing Civic Platform government led by the then party leader and prime minister Ewa Kopacz, having being previously marginalised by her predecessor Donald Tusk. However, although he was not in the party’s inner circle for a number of years, Mr Schetyna is still associated with the previous, discredited government which many Poles see as representing an out-of-touch and complacent elite disconnected from the concerns of ordinary people and tainted by scandals.

Mr Schetyna also lacks charisma and, most importantly, does not, as yet, appear to have an effective strategy for re-building the party’s support. His approach, dubbed ‘total opposition’, seems to comprise: presenting himself as the most uncompromising opponent of the government; trying to outflank it on social spending pledges by, for example, arguing that the government’s flagship ‘500 plus’ subsidy programme for the first children of poorer households and every second and subsequent child in all families should be extended to include every child; and using Civic Platform’s international contacts to attack the ruling party in European forums. However, although experience suggests that Polish voters often prefer hard-line rather than more nuanced opposition parties, Mr Schetyna’s approach often comes across as opportunist and overly negative. Civic Platform is unlikely to win the backing of those voters favouring greater social welfare spending, for whom Law and Justice will always be more credible, and is in danger of simply damaging its hard-won fiscal credibility among the party’s one-time core liberal electorate. Moreover, while Poles support their country’s EU membership overwhelmingly, Civic Platform could appear to be weakening the country’s international standing by drawing European institutions into domestic political disputes.

In electing Mr Schetyna as leader Civic Platform members hoped that, as an experienced political operator, he would restore a sense of discipline and purpose to the party. However, Mr Schetyna often gives the impression that his main priority is shoring up his own leadership and exacting revenge on those who once helped to marginalise him within the party. This has started to produce a backlash, one consequence of which was that, following a purge of Mr Schetyna’s opponents which led to the defection of a number of Civic Platform councillors, the party lost control of the regional authority in Lower Silesia, once his local power base.

Mr Petru’s ‘newness’ begins to wear off

Meanwhile, a significant challenger for the leadership of the opposition emerged in the form of the ‘Modern’ (Nowoczesna) grouping, formed last May by financial sector economist Ryszard Petru. Mr Petru’s party won 7.6% of the vote in the October election to emerge as the fourth largest grouping in the Sejm, picking up support from voters who felt that Civic Platform had drifted away from its free market roots. However, it was the constitutional crisis that provided ‘Modern’ with an opportunity to broaden its image from being simply a technocratic pro-business liberal party. While Mr Petru is a reasonably effective parliamentary and media performer he is not a hugely charismatic figure and his party’s greatest asset was its ‘newness’, which stood in sharp contrast to the more compromised figures associated with Civic Platform. Without the political ballast of having to defend eight years in office, Mr Petru’s harsh criticisms of the Law and Justice government appeared more authentic and credible and, as a consequence, ‘Modern’ started pulling ahead of Civic Platform in opinion polls, and in some even ran neck-and-neck with Law and Justice.

However, as the effect of this ‘newness’ began to wear off Mr Petru’s party lost some of its initial momentum and the two main opposition groupings are now fairly evenly matched in the polls, and both are lagging well behind Law and Justice. For example, the ‘Pooling the Poles’ micro-blog that aggregates voting intention surveys currently shows support for ‘Modern’ at 19% compared with 17% for Civic Platform and 38% for the ruling party. Part of the problem is that Mr Petru’s party lacks both grassroots organisational structures and experienced, battle-hardened politicians in its small 29-member parliamentary caucus. Moreover, none of its other leaders have the same public profile as Mr Petru, whose novelty value has declined as a series of gaffes have allowed the party’s opponents to portray him as an over-promoted political lightweight: most notoriously when he sent a Twitter message implying that he was defending Poland’s historical Constitution of May 3rd 1791, when it was only in force for a little over a year!

‘Modern’s’ biggest weakness, however, lies in the narrowness of its programmatic appeal. Experience suggests that the social base for a purely economically liberal party in Poland is relatively small, a problem exacerbated by Mr Petru’s links with the large banking corporations which, for many Poles, symbolise the hated political-business nexus (often referred to disparagingly as ‘banksters’) that motivated many of them to vote for anti-establishment parties like Law and Justice. Initially, the polarisation of the political scene helped Mr Petru’s party neutralise this weakness by presenting itself as the ‘defender of democracy’ rather than simply a narrowly focused liberal grouping. The party’s leap in support was, therefore, the product of a very specific political conjuncture and this began to change as voters started to once again evaluate ‘Modern’ through the prism of its relatively unpopular liberal socio-economic policies.

A coalition of opposition parties appears unlikely

In fact, the main focus for mobilising opposition to the government has been the Committee for the Defence of Democracy (KOD), formed last November to protest against the constitutional tribunal reforms but subsequently broadened out into a more general anti-Law and Justice civic movement. Government supporters argue that the Committee’s activities are orchestrated by opposition politicians and vested interests hostile to its plans to radically reconstruct the Polish state and introduce sweeping socio-economic policy reforms. For sure, many of those who identify with the Committee represent the post-1989 business, cultural and political establishment, and its protest rallies have frequently been addressed by opposition party leaders. However, the Committee has been able to project itself successfully, both domestically and internationally, as a large, bottom-up movement of ordinary citizens genuinely concerned about the apparent risk to democracy, civic freedoms and the rule of law in Poland.

Thousands of Poles have participated in the Committee’s street demonstrations, the largest of which was held in Warsaw at the beginning of the May around the slogan ‘We are and will remain in Europe’, conflating the government’s apparent undermining of democracy with the danger that the country could leave the EU (although Law and Justice supporters argue that the government remains fully committed to Polish EU membership). This demonstration was, according to the (Civic Platform-controlled) Warsaw city council, attended by some 240,000 people (a figure picked up by the international media); although Law and Justice strongly contests this claim, citing police estimates (which opposition supporters, in turn, argue are biased in favour of the government) of the number present being only 45,000. In fact, even if one accepts the lower figure as more accurate, there is clearly a substantial number of Poles who feel (rightly or wrongly) sufficiently concerned that the government represents a threat to democracy to join the anti-Law and Justice protests.

In May, knowing that only a more formal political grouping is capable of ousting Law and Justice from office in an election, the Committee also launched a new coalition of opposition parties called ‘Liberty, Equality, Democracy’ (Wolność, Równość, Demokracja) with the stated aim of ‘protecting European values and the constitutional order’. Interestingly, a survey conducted by the TNS polling agency found that 38% of respondents said that they would vote for a united opposition coalition compared with only 33% supporting Law and Justice. However, although Mr Petru appeared to endorse the idea of such an alliance, Mr Schetyna (while careful not to rule it out in principle) prevented Civic Platform from joining the ‘Liberty, Equality, Democracy’ coalition. Even assuming that the anti-government protests can sustain their momentum beyond the summer break, with no single leader and lacking even a minimal common programme on the socio-economic issues that are likely to be most important to voters, the prospect of a coalition of opposition parties contesting the next election currently looks unlikely (although this could change as the next parliamentary poll is not due for three-and-a-half years).

Little prospect of an effective challenge

While the ongoing constitutional crisis has galvanised the government’s opponents and given them a sense of energy and purpose, it is questionable whether, as things stand, the divided opposition can mount an effective challenge to Law and Justice. The party’s victory last year reflected widespread disillusionment with the country’s ruling elite and a strong prevailing mood that it was time for change, so most Poles do not simply want a return to the pre-election status quo. The government’s opponents are, however, spending much of their time focusing on (arguably too abstract) constitutional issues and failing to address ordinary citizens’ more pressing social and economic concerns. It is not surprising, therefore, that the ruling party retains a clear opinion poll lead, which could solidify when voters start to feel the full impact of its generous (but costly) social spending programmes, such as ‘500 plus’.

What happened to Poland’s Paweł Kukiz?

A year ago rock star and social activist Paweł Kukiz caused a sensation when he finished a surprise third in the first round of the Polish presidential election. He held on to enough support for his new Kukiz ‘15 grouping to secure representation in the legislature after the October parliamentary election. Kukiz ‘15 has retained a reasonably stable base of support but its lack of organisational and programmatic coherence casts doubt over the grouping’s long-term prospects which are closely linked to its leader’s personal credibility.

Election success in spite of blunders

Last May the charismatic rock star and social activist Paweł Kukiz caused a political sensation when he came from nowhere to finish third in the first round of the Polish presidential election, picking up more than one fifth of the vote. Standing as an independent right-wing ‘anti-system’ candidate, Mr Kukiz’s signature issue, and main focus of his earlier social activism, was strong support for the replacement of Poland’s current list-based proportional electoral system with UK-style single-member constituencies (known by the Polish acronym ‘JOW’), which he saw as the key to renewing Polish politics.

Opinion polls conducted immediately after the presidential poll showed Mr Kukiz to be Poland’s most trusted politician and his (as-yet-unnamed) grouping running in second place behind the right-wing Law and Justice (PiS) party – the main opposition grouping, which went on to win a decisive victory in the parliamentary election – but ahead of the ruling centrist Civic Platform (PO). Mr Kukiz squandered much of this political capital as his grouping, which eventually adopted the name Kukiz ‘15, descended into a series of bitter rows and splits with former colleagues which caused its electoral support to plummet. These political blunders overshadowed attempts to mobilise for the September referendum on replacing the country’s proportional electoral system with one based on single-member constituencies, which was called by the previous (subsequently defeated) Civic Platform-backed President Bronisław Komorowski as a panic move to win over Mr Kukiz’s supporters. Although many commentators expected the referendum to provide Mr Kukiz with a major boost it ended in fiasco with a derisory 7.8% turnout.

In the event, Mr Kukiz turned out to have sufficient hard core supporters immune to the kind of gaffes that would have been fatal for more mainstream politicians, and in the October election Kukiz ’15 held on to enough of his support to cross the 5% threshold for securing parliamentary representation. Mr Kukiz’s grouping emerged as the third largest in the Sejm, the more powerful lower house of the Polish parliament, securing 8.8% of the vote and 42 seats. According to exit polls, Kukiz ’15 polled particularly strongly among younger voters and students picking up 19.9% and 20.2% of their votes respectively. Widespread anti-establishment feeling, which was the dominant theme of the election, was particularly evident among these younger voters, many of whom were increasingly disillusioned by what they saw as an invidious choice between moving abroad to take jobs that fell well short of their abilities or remaining in a country which offered them few prospects for the future.

Surviving its first crisis

However, Mr Kukiz’s extremely eclectic candidates list produced a potentially unstable parliamentary caucus. Having fallen out with and publicly attacked many of the local government and civic activists who formed the backbone of his presidential campaign, he came to rely increasingly upon the organisational support of smaller nationalist and liberal-conservative parties and political associations, notably the radical right National Movement (RN) which enjoys close links with Hungary’s ‘Jobbik’ party. However, the largest group within the caucus still comprised non-aligned businessmen, local civic activists, trade unionists and single-member constituency campaigners. The only common denominator was opposition to the constitutional foundations of the post-1989 Polish state and its dominant elites, together with a vague ‘anti-systemness’ that Mr Kukiz was felt to embody. This led to predictions that Kukiz ’15 would implode as soon as it was forced to confront issues that brought its ideological incoherence to the fore.

In April, Kukiz ’15 faced its first major post-election crisis. The grouping came to an agreement with Civic Platform, now the main parliamentary opposition party, and the smaller liberal ‘Modern’ (Nowoczesna) grouping, which appears to have overtaken the former ruling party in opinion polls, that they would not participate in the election of a new member of the constitutional tribunal nominated by Law and Justice. By removing their voting cards the opposition parties hoped to reduce the number of deputies present to below the required quorum and thereby invalidate the vote. Kukiz ‘15’s tactics led to accusations from Law and Justice that it had struck a deal with establishment politicians, exemplified by a symbolic handshake between Mr Kukiz and ‘Modern’ leader Ryszard Petru. Such accusations are extremely dangerous for Kukiz ‘15 given Mr Petru’s links to the large banking corporations which, for many Poles, symbolise the hated political-business nexus (often referred to disparagingly as ‘banksters’) that motivated them to vote for Mr Kukiz in the first place. Mr Kukiz’s supporters responded that the abstention tactic was determined spontaneously as a response to Law and Justice’s decision to bring forward the timing of the vote.

As it turned out, the plan failed when seven members of the Kukiz ’15 caucus broke ranks and cast an abstention or voted with the ruling party. One of these, Małgorzata Zwiercan, cast a vote for both herself and another (momentarily absent) colleague, the legendary former anti-communist activist Kornel Morawiecki. Mr Kukiz suggested that the deputies who broke ranks were encouraged to do so by Mr Morawiecki’s son, Mateusz, who is deputy prime minister and development minister in the Law and Justice government. Ms Zwiercan was expelled from the caucus while Mr Morawiecki, who said that she acted in line with his intentions, also decided to leave Kukiz ‘15.

In the same week, the National Movement’s political council called upon the five Kukiz ’15 deputies who are party members to resign and form their own parliamentary circle. The proximate cause of this was the publication of a tape recording where Mr Kukiz referred to one of the Movement’s leaders in vulgar language. However, there was a broader crisis in relations between Mr Kukiz and the Movement with the latter criticising the caucus leadership’s attempts to introduce a more unitary programmatic line in areas where the nationalists were at odds with its official stance, specifically: in their support for Polish withdrawal from the EU and strengthening Poland’s abortion law, and opposition to Kukiz ‘15’s tactical co-operation with liberal and centrist parties.

However, although these events exposed the underlying divisions within Kukiz ’15 and fuelled speculation about its imminent implosion, the grouping’s parliamentary caucus emerged relatively unscathed. Although Mr Morawiecki gave Kukiz ‘15 gravitas and rooted it in the anti-communist tradition, apart from Ms Zwiercan none of his other allies joined him in forming a new parliamentary circle. Plans to form a separate Nationalist Movement parliamentary caucus were also scuppered by a conflict between party leader Robert Winnicki, who resigned from Kukiz ’15, and other nationalist deputies who decided to stay. An important reason why the Kukiz ’15 parliamentary caucus has held together in spite of its ideological heterogeneity has been its relative lack of discipline in parliamentary divisions, with many deputies often voting differently from the majority.

Mr Kukiz’s charisma is still the key

Mr Kukiz’s grouping has also tried to develop a more distinctive political identity. Although it has become increasingly critical of the Law and Justice-led government, especially over the issue of party-linked appointments to state bodies, Kukiz ’15 has attempted to position itself as a ‘constructive’ opposition. It has, for example, tried not to become directly involved in the bitter and ongoing conflict over the membership and functions of Poland’s constitutional tribunal which has dominated political debate since the election. While criticising the government’s handling of the dispute, Kukiz ’15 has refused to join other opposition groupings in street protests organised by the anti-government Committee for the Defence of Democracy (KOD), and tried to propose a compromise solution based on re-constituting the tribunal with new judges elected by a qualified two-thirds parliamentary majority.

At the same time, Mr Kukiz’s grouping has tried to outflank Law and Justice by promoting constitutional reforms and legislative initiatives that position it as a genuinely reformist ‘anti-system’ movement. For example, in addition to its signature issue of electoral reform, Kukiz ’15 has promoted: measures which they argue empower ordinary citizens, such as more direct democracy and referendums triggered by civic initiatives; shifting from a parliamentary to presidential system of government; and ending state party funding and political appointments to ministerial cabinets. It has also tried to tap into popular concerns about the potential security and societal cohesion risks posed by mass Muslim immigration by collecting signatures for a referendum on whether or not Poland should accept refugees from the Middle East and North Africa under the EU’s migrant relocation scheme.

However, as part of its appeal of not belonging to the so-called ‘partocracy’, Kukiz ’15 did not register as a formal political party thereby depriving itself of access to ongoing state funding (given its share of the vote Mr Kukiz’s grouping was eligible for around 7 million złoties per annum). Nor has it yet developed a network of local grassroots organisational structures that could act as a counter-weight to centrifugal tendencies within the parliamentary caucus. This lack of organsitionisational consolidation makes Kukiz ’15 vulnerable to hostile approaches from better resourced competitors such as the Coalition for the Renewal of the Republic–Liberty and Hope (KORWiN) grouping led by Janusz Korwin-Mikke. Economically libertarian, socially conservative and radically Eurosceptic, Mr Korwin-Mikke is one of the most controversial figures in Polish politics. However, while his party failed to cross the 5% threshold in the parliamentary election its 4.8% share of the vote was enough for it to secure an annual state subsidy of 4.17 million złoties, and a number of Kukiz ’15 deputies who are ideologically close to Mr Korwin-Mikke may end up defecting and forming a new parliamentary caucus linked to the grouping.

In fact, the key to Kukiz 15’s future prospects remains its leader’s personal popularity. Although he can be gaffe-prone and emotional under pressure, for many of his supporters Mr Kukiz’s impulsive behaviour outside established political norms is evidence of his authenticity. Although no longer enjoying the very broad appeal that he achieved last May, Mr Kukiz has held on to much of the support that he was able to garner in the parliamentary election: a March-April survey by the CBOS agency found him to be Poland’s third most popular politician with a 51% approval rating (22% disapproval, 21% neutral). As a consequence, Kukiz ’15 has retained a reasonably stable base of popular support: the ‘Pooling the Poles’ micro-blog that aggregates voting intention surveys currently shows it averaging around 11%.

An uncertain future

In spite of its ideological incoherence Kukiz ‘15 emerged relatively unscathed from its most serious crisis and its core electorate appear willing to support the grouping as long as they perceive its leader to be the embodiment of opposition to the establishment. However, Kukiz ’15 remains an unstable construct and serious question marks hang over its longer-term prospects. In the current, highly polarised political climate it will be increasingly problematic for it to find a niche between the Law and Justice government and the ‘establishment’ opposition parties. Lack of discipline in parliamentary voting also makes it difficult for the grouping to develop a more coherent programmatic identity and means that Mr Kukiz cannot be sure of delivering his deputies in crucial votes. The grouping’s continued success, and even survival, therefore, depends very much on his personal credibility, so could erode very quickly if his supporters cease to see him as the most credible fighter against ‘the system’.

Will Poland’s Law and Justice government respond to international pressure?

Poland’s right-wing government has come under growing international pressure to resolve the country’s on-going constitutional crisis. Although the ruling party’s supporters robustly deny that its actions are endangering democracy, and there is little indication that the government will back down, the crisis is forcing it to expend valuable time and political capital defending its position in international forums.

Constitutional crisis is the catalyst

As a political grouping committed to carving out a more independent and assertive foreign policy and re-calibrating the country’s relationship with the major EU powers, especially Germany, Poland’s right-wing Law and Justice (PiS) party was expecting to clash with the EU political establishment following its decisive victory in last October’s parliamentary election. However, it did not foresee that the cause of such a sharp conflict with EU institutions would be a bitter domestic dispute over the membership and functioning of the country’s constitutional tribunal, a powerful body that rules on the constitutionality of laws.

The crisis began last November almost immediately after Law and Justice took office when the new government decided to annul the appointment of five judges elected by the previous parliament to the 15-member tribunal, to replace those whose terms of office were due to expire that month and in December. However, the tribunal itself ruled that while the appointment of the two judges replacing those whose terms expired in December was unconstitutional the other three were nominated legally. The government argued that the tribunal did not have the right to make judgements about the constitutionality of parliamentary appointments, and Law and Justice-backed President Andrzej Duda swore in five judges nominated by the new parliament instead. Tribunal president Andrzej Rzepliński responded by declaring that the five would not participate in its work, although he subsequently allowed two of them to assume their duties.

Law and Justice tried to break this impasse in December by amending the constitutional tribunal law to increase the number of judges required to make rulings in the most important cases from nine to thirteen, thereby hoping to oblige Mr Rzepliński to accept the five judges appointed by the new parliament. The so-called ‘repair law’ also increased the threshold for tribunal rulings to a two-thirds majority and stipulated that cases would be considered in the order they were received rather than at the tribunal’s discretion. However, in March, ignoring the December amendments and ruling on the basis of the old procedural rules, the tribunal declared the ‘repair law’ unconstitutional. The government, in turn, said that the tribunal had no constitutional power to review the law, which had come into effect as soon as it was passed, and refused to publish the judgement in the official journal, a necessary step for tribunal rulings to become legally binding.

Most of the opposition and legal establishment claim that Law and Justice’s actions violate judicial independence and would paralyse the tribunal, making it more difficult to challenge the government’s legislation. They have bundled up the dispute over the tribunal’s membership and competencies with a number of other government measures – notably new laws which they claim politicise the civil service and public broadcasting – to accuse Law and Justice of undermining the fundamentals of Polish democracy and the rule of law. As a consequence, thousands of Poles have participated in demonstrations organised by the Committee for the Defence of Democracy (KOD), a new anti-government civic movement.

The government’s supporters, however, argue that the previous administration, led by the centrist Civic Platform (PO) party, tried to appoint five judges illegally just before the October election to pack the tribunal with Law and Justice opponents. They point out that had these appointments not been challenged all but one of tribunal’s fifteen members would have been elected by Civic Platform-dominated parliaments, and argue that the ‘repair law’ increases the legitimacy of tribunal judgements and prevents the timing of cases being manipulated. More broadly, they claim that opposition to the government is being orchestrated by well-entrenched, and often deeply corrupt, post-communist elites and vested interests hostile to its plans to restore pluralism and balance to state institutions.

International pressure intensifies

In April, international pressure on the Law and Justice government intensified when the European Parliament (EP) passed a resolution by 513 votes to 142 (with 30 abstentions) saying that the ‘effective paralysis’ of the tribunal posed a threat to democracy, human rights and the rule of law in Poland. The EP called upon the government to publish the tribunal’s March ruling and fully implement the recommendations of the Venice Commission, an advisory body on constitutional matters to the Council of Europe human rights watchdog. The Law and Justice government actually invited the Commission to Poland earlier this year hoping that it could help end the controversy, but it raised similar concerns to those expressed by the EP and also supported the appointment of the three judges elected by the previous parliament.

The EP vote was prompted by a decision by Civic Platform – now the main opposition grouping and a member of the European People’s Party, the EP’s largest political grouping which prepared the resolution – to attack the ruling party more openly in European forums. The government’s opponents enjoy close links with the EU political establishment and Western opinion-forming media, many of whom share their dislike of Law and Justice. The vote came in the wake of the European Commission’s January decision to initiate a preliminary investigation under an EU monitoring mechanism to establish whether the rule of law in Poland was under ‘systemic threat’. So far the Commission has taken the first step which involves discussions with the member state concerned, but the EP resolution said that it should move to the next stage and issue a ‘rule of law recommendation’ giving Poland a specific time period to address the problems that it has identified.

Some commentators have also argued that the constitutional crisis is having a negative impact on Polish-US relations, suggesting that it could lead to the July NATO summit in Warsaw being downgraded or ending in humiliation for Poland. Law and Justice has made the summit a crucial test of its effectiveness in ensuring national security, and is hoping that it will agree to strengthen the Alliance’s Eastern flank to deter Russian aggression, ideally stationing permanent NATO forces on Polish territory. A number of articles extremely critical of Law and Justice have appeared in the US opinion-forming media and American officials have expressed concerns about how the constitutional crisis is developing. Law and Justice supporters argue that many US commentators and officials are either ideologically un-sympathetic to the party or have been misinformed by well-placed individuals in American foreign policy-making circles who are hostile to the government. The government’s opponents, for example, made much of the fact that, during his March visit to Washington for a three-day nuclear summit, Mr Duda did not have any formal discussions with US administration officials. Law and Justice supporters responded that only three of the 60 world leaders attending the summit secured bi-lateral meetings with US President Barack Obama, and that Mr Duda held ‘brief but substantive’ informal discussions with him on the side-lines.

Law and Justice stands its ground

At the moment, Law and Justice is clearly willing to pay a high political price for actions which it says are both constitutional – arguing that swearing in the three judges elected by the previous parliament and publishing the tribunal’s March verdict would be illegal – and necessary to ensure that its legislative programme is not de-railed. The government’s supporters say that the constitutional crisis is a political rather than legal dispute and, therefore, a matter to be resolved internally. With the stakes so high, agreeing to the tribunal’s demands would also represent a huge political climb-down and the government currently shows no sign of bowing to what it considers to be opposition-initiated European and international pressure. At the same time, the ruling party is also signalling that it is trying to engage in dialogue with the opposition and find a compromise solution. For example, the Law and Justice-dominated Sejm, the more powerful lower house of the Polish parliament, has convened a group of legal experts to consider the Venice Commission report and work on recommendations to resolve the crisis, if necessary by changing the law; although most opposition parties argue that the government is simply playing for time to appease the international community.

Moreover, the EP resolution has no legal consequences and the Commission, which is currently awaiting a report on Poland from its Vice-President Frans Timmermans, cannot impose sanctions such as suspending a country’s voting rights. The ‘rule of law’ framework constitutes a political dialogue and sanctions can only arise if the Commission invokes Article 7 of the EU treaties and recommends them to the European Council. Here sanctions require unanimity in one of the three stages of voting, and at least one country, Hungary, has made it clear that it will veto any attempt to introduce them against Poland.

The Commission also needs to be wary about escalating the dispute. For sure, opinion surveys suggest that most Poles agree with the constitutional tribunal rather than Law and Justice. A March-April poll conducted by the CBOS agency, for example, found that 45% of respondents supported the tribunal while only 29% agreed with the government (29% were undecided). However, while Poles support their country’s EU membership overwhelmingly, they are much more divided about the idea of European institutions becoming involved in Polish domestic political disputes. The same CBOS survey found respondents evenly split on whether EU politicians and institutions were motived by genuine concern for the state of democracy in Poland (47%) or instinctively hostile to Law and Justice and biased towards to the opposition (45%). Moreover, while Law and Justice has a significant number of vocal and well-organised opponents, it also retains widespread support among a large segment of the electorate, and other polls show that the ruling party has a clear lead over the divided opposition.

Law and Justice is more sensitive to influence from the USA, which it considers Poland’s most important foreign policy ally. However, Polish-US relations are strongly rooted and the ruling party is hoping that Washington will be pragmatic and de-couple whatever concerns it has about the constitutional crisis from security issues. In fact, the Warsaw summit appears likely to confirm an ongoing process of strengthening NATO’s Eastern flank, while there is a lack of political will for permanent US military bases in Poland anyway, regardless of the constitutional crisis. It also seems very unlikely that Washington will escalate its concerns about the Polish political situation into a public conflict by, for example, using the summit as an occasion to show its disapproval of the Law and Justice government.

Will playing for time work?

In spite of the involvement of international actors, Poland’s constitutional crisis is no nearer to being resolved and, if anything, becoming more intractable. As the tribunal starts to issue rulings in other cases on the basis of the old procedural rules, while the government continues to refuse to recognise these judgements by not publishing them, this could lead to legal paralysis with courts forced to decide whether or not to apply the challenged legislation. Moreover, the longer that the crisis continues the harder it will be for the ruling party to back down without losing face and it is certainly unlikely to take any action that appears to be giving in to opposition-initiated international pressure. Law and Justice is hoping that sooner or later the international community will grow tired of Poland’s complicated political-legal dispute and move on to other issues. However, in the meantime it is being forced to devote valuable time and political capital defending its position in the European and international arena.

How will Poland’s constitutional crisis develop?

Poland’s constitutional crisis has escalated as the government refuses to recognise a constitutional tribunal ruling striking down a law amending the body’s procedural rules. With the stakes so high, neither the government nor its opponents show any signs of backing down. This could move the crisis into a new, more dangerous phase, drawing in the international community and threatening the country with legal paralysis.

Controversy over appointments and procedures

The crisis began last November when, immediately after taking office, the new government led by the right-wing Law and Justice (PiS) party decided to annul the appointment of five judges elected by the previous parliament to Poland’s 15-member constitutional tribunal to replace those whose terms of office were due to expire that month and in December. The tribunal is a powerful body that rules on the constitutionality of laws. Earlier these new judges were unable to assume their posts because Law and Justice-backed President Andrzej Duda did not accept their oaths of office. The move met with widespread criticism from most of the opposition and legal establishment, who accused the government of violating judicial independence. The tribunal’s critics, however, see it as a highly politicised body that struck down key elements of the previous Law and Justice-led government’s legislative programme. They placed the blame for the crisis squarely on the outgoing government, led by the centrist Civic Platform (PO) party, which, they argued, tried to appoint five judges illegally just before the October parliamentary election to pack the tribunal with opponents of Law and Justice.

However, the tribunal itself ruled that while the appointment of the two judges replacing those whose terms of office expired in December was unconstitutional the other three were nominated legally. Government supporters, in turn, argued that the tribunal did not have the right to make judgements about the constitutionality of parliamentary appointments, and Mr Duda swore in five judges nominated by the new parliament instead. Tribunal president Andrzej Rzepliński responded by declaring that the five would not participate in its work, although he subsequently allowed two of them to assume their duties.

Law and Justice tried to break this impasse in December by amending the constitutional tribunal law to increase the number of judges required to make rulings in the most important cases from nine to thirteen; thereby hoping to oblige Mr Rzepliński to accept the five judges appointed by the new Sejm. The so-called ‘repair law’ also increased the threshold for tribunal rulings to a two-thirds majority, making the votes of these new appointees more significant, and stipulated that cases would be considered in the order they were received rather than at the tribunal’s discretion. The new law would take effect immediately which, the government hoped, would prevent the tribunal from declaring it unconstitutional.

The government’s opponents claimed that that these changes would paralyse the tribunal and make it more difficult to challenge the government’s legislation. They bundled up the dispute over the tribunal’s membership and competencies with a number of other government measures – notably new laws which they claim politicise the civil service and public broadcasting, the expansion of state surveillance, and bringing the public prosecutor’s office back under the control of the justice ministry – to accuse Law and Justice of undermining the fundamentals of Polish democracy and the rule of law. As a consequence, thousands of Poles participated in demonstrations organised by the Committee for the Defence of Democracy (KOD), a new anti-government civic movement.

The government’s supporters, however, defended its actions as necessary measures to restore pluralism and balance to state institutions that they say had been expropriated by supporters of the previous governing party. They pointed out that had the new government not challenged the five appointments made at the end of the previous parliament all but one of tribunal’s 15 members would have been appointed by Civic Platform-dominated parliaments, and argued that the ‘repair law’ increased the legitimacy of tribunal’s judgements and prevented the timing of cases being manipulated. More broadly, they claimed that opposition to the government was being orchestrated by well-entrenched, and often deeply corrupt, post-communist elites and vested interests hostile to its plans to radically reconstruct the state and introduce sweeping socio-economic reforms.

The crisis escalates

In March the crisis escalated when tribunal judges decided that they were empowered by the Constitution to ignore the changes introduced in the ‘repair law’ and rule on its legality under the old procedural rules. They declared that the December amendments were unconstitutional arguing that they dramatically limited the tribunal’s ability to function properly, while the rushed way in which the ‘repair law’ was adopted violated constitutional procedure. For its part, the government argued that the tribunal had no power to review the ‘repair law’ as the Constitution stipulates that its rules are regulated by parliamentary statute and thus the new procedures had already come into force. It refused to publish the judgement in the official journal, a necessary step for tribunal rulings to become legally binding, arguing that this was simply a private statement delivered by its members.

At the same time, the Venice Commission – an advisory body on constitutional matters to the Council of Europe human rights watchdog (which the Law and Justice government had actually invited, hoping that it could help end the controversy) – issued a very critical report which said that the December amendments obstructed the tribunal’s functioning and were a threat to the rule of law, democracy and human rights. It also called upon the government to accept the tribunal’s ruling on the ‘repair law’. However, although the government said that it would take the Commission’s opinion into account, and highlighted the fact that it also blamed the previous Civic Platform-led administration for precipitating the crisis, Law and Justice supporters played down the report’s significance saying that it was not binding.

The government was also indignant that a draft of the Commission’s report was leaked to the liberal anti-government ‘Gazeta Wyborcza’ newspaper, which prompted Law and Justice supporters to argue that the Commission was allowing itself to be used for political advantage rather than offering an objective legal assessment. The Commission’s defenders pointed out that draft reports were circulated widely before the hearings which approved them (although their contents were meant to be confidential until the report was finalised). A draft of the constitutional tribunal ruling was also leaked, this time to the right-wing ‘wPolityce.pl’ internet portal, which suggested that it had been drafted in advance of the hearing; although the tribunal’s supporters said that this was not unusual in such complicated cases.

Both sides are entrenched

The row over the tribunal is the most serious constitutional crisis to affect Poland since the collapse of communism in 1989 and is unlikely to end soon as both sides are entrenched in their positions. The tribunal majority led by Mr Rzepliński (whose term of office does not expire until the end of the year) does not recognise the December amendments nor three of the five justices appointed by the Law and Justice-dominated parliament, while the government will not publish tribunal judgements which are not in line with the ‘repair law, nor will the President swear in the three Civic Platform-nominated justices. Moreover, if the tribunal starts to rule in other cases on the basis of the old procedural rules, and the government continues to refuse to recognise these judgements by not publishing them, this could lead to legal paralysis with courts forced to decide whether or not to apply the challenged legislation.

Moreover, while many anti-government protesters and activists genuinely believe its actions are undermining Polish democracy, it is also in the opposition’s interests to keep public attention focused on the constitutional crisis, as it is an issue where Law and Justice is clearly on the defensive and around which government opponents can mobilise support from the international community. The opposition enjoys close links with the EU political establishment and Western opinion forming media, many of whom share their dislike of Law and Justice. The European Commission – which, in January, initiated a preliminary investigation of Poland under the EU’s so-called ‘rule of law’ monitoring mechanism – looks set to return to the issue in April when it considers the Venice Commission’s report, and the European Parliament (EP) is likely to pass a resolution highly critical of the Law and Justice government at its next plenary session. This follows a decision by Civic Platform – now the main opposition grouping and a member of the European People’s Party, the EP’s largest political faction – to attack the ruling party more openly in EU forums. In fact, the Commission and EP interventions could be double-edged swords: while Poles support their country’s EU membership overwhelmingly, many of them also dislike the idea of the Union interfering in Polish domestic affairs.

Law and Justice is, however, much more sensitive to pressure from the USA, which the government considers Poland’s most important foreign policy ally. Some commentators have suggested that that the constitutional crisis could lead to the July NATO summit in Warsaw, which the government is hoping will agree to the permanent stationing of Alliance forces on Polish territory, being downgraded or ending in humiliation for Poland. A number of articles extremely critical of Law and Justice have appeared in US opinion forming media and last month three US Senators, including 2008 Republican presidential candidate John McCain, expressed concerns about the state of democracy in Poland. Law and Justice supporters argue that many US commentators are either unsympathetic to the party or have been misinformed by well-placed individuals hostile to the government. The government’s opponents have clearly been much more successful at getting their case across in American foreign policy-making circles. However, although US administration officials have expressed increasing concern about how the constitutional crisis is developing they have not, in their public statements at least, linked it explicitly with the forthcoming NATO summit.

Not surprisingly, the government has been keen to shift political debate back on to socio-economic issues where it feels it is more in tune with public opinion than its liberal and centrist opposition critics. Indeed, many commentators feel that ultimately the government’s fate is more likely to depend on whether or not it delivers on its high-profile social spending pledges. In fact, while Law and Justice has a significant number of vocal and well-organised opponents, it also retains widespread support among a large segment of the population. A March survey for the CBOS agency, for example, found that 36% of respondents supported the government while 33% opposed it and 27% were neutral. Other surveys show that the ruling party retains a clear opinion poll lead over the divided opposition. However, notwithstanding the fact that the constitutional crisis is forcing the government to devote time and expend political capital responding to criticism, including in international forums, the issue also has the capacity to overshadow it’s more popular policies.

No end in sight

With the stakes so high, neither the government nor its opponents show any signs of backing down. The opposition says that it is not prepared to discuss any compromise solution until Mr Duda swears in the three judges elected by the outgoing Sejm and the government publishes the tribunal’s verdict on the ‘repair law’. The government says this would be illegal and is calling upon the opposition to enter negotiations without such pre-conditions. Not only would agreeing to the opposition’s terms represent a huge climb-down, Law and Justice is clearly willing to pay a high political price for actions it feels are necessary to ensure that its legislative programme is not de-railed. It is also unlikely to back down as a result of EU pressure, although it is more sensitive to influence from the USA. In the meantime, there is a danger that the crisis, which has already deeply polarised the political scene, could escalate further if it starts to spillover into other parts of the legal system.

Is the Polish government’s ‘500 plus’ child subsidy a political game changer?

Given that it will have a direct and clearly identifiable impact on many Polish families, government supporters are hoping that its flagship ‘500 plus’ child subsidy programme will be a political game changer. However, the political impact of this popular but very costly social reform could be diluted by more controversial issues where the government is on the defensive.

Delivering on its flagship election promise

As the Polish government – led, since last October’s parliamentary election, by the right-wing Law and Justice (PiS) party – marked its first hundred days in office, this month saw the signing into law of its flagship ‘Family 500 plus’ programme. The 500 złoties per child monthly subsidy, which will take effect in April, will be available for every second and subsequent child in all families as well as for the first children of poorer households earning less than 800 złoties per month (1200 in the case of disabled children); embracing some 2.7 million families with 3.7 million children in total. Although ‘500 plus’ is one of the most significant changes to the Polish social welfare system since the collapse of communism, its primary objective is to re-shape the country’s demographic and family policy. Poland faces a demographic time bomb as Poles are living longer while fewer women are giving birth to decreasing numbers of children; according to the Central Statistical Office (GUS) the country’s population is set to fall by 3.1 million (compared with 2014) to 34.9 million in 2050. The government claims that its ‘500 plus’ programme will increase the Polish birth rate by 278,000 over the next decade.

‘500 plus’ was one of Law and Justice’s key, high profile election promises, alongside pledges to: reverse the deeply unpopular increase in the retirement age to 67 (from 60 for women and 65 for men) introduced by the previous government led, by the centrist Civic Platform (PO) party; and raise tax-free income thresholds to 8,000 złoties. During last year’s election campaign, Law and Justice focused on these socio-economic issues, rather than its traditional priority of re-constructing the Polish state; although the latter remains at the core of the party’s programme. By helping to persuade more moderate, centrist voters to support the party, these pledges were critical to Law and Justice’s stunning election victory, as it became the first political grouping in post-1989 Poland to secure an outright parliamentary majority, and its earlier success in the May 2015 presidential poll when its candidate Andrzej Duda defeated Civic Platform-backed incumbent and odds-one favourite Bronisław Komorowski. Given their political significance, it is vital that the new government is seen to be delivering on these pledges as quickly as possible, especially its flagship ‘500 plus’ programme.

The opposition is uncertain and divided

Opposition parties have been uncertain and divided on how to respond to ‘500 plus’. During last year’s election campaign, Civic Platform, which is now the main opposition grouping, tried to present itself as a fiscally responsible party warning that if Law and Justice implemented its social spending pledges then Poland would face a Greek-style budget crisis. The cost of ‘500 plus’ is estimated at 17 billion złoties in 2016 and 22-23 billion per annum in subsequent years. However, in one of his first major decisions as Civic Platform’s new leader, Grzegorz Schetyna reversed the party’s previous policy and instead tried to outflank Law and Justice by arguing that ‘500 plus’ should be extended to include all children regardless of household income. In doing so, the party claimed that Law and Justice had betrayed its election promise to introduce the subsidy ‘for every child’. While Law and Justice’s programmatic statements were very clear that ‘500 plus’ would only encompass the first children of lower-earning households, in some election debates and campaign speeches party spokesmen, including prime minister Beata Szydło, implied that the subsidy could apply to all children.

Undermining Law and Justice’s claim to be delivering on its election promises may bring Civic Platform some short-term benefits; interestingly, a survey conducted by the Pollster agency for the ‘Super Express’ daily suggested that two-thirds of respondents felt Mrs Szydło had not kept her word on ‘500 plus’. However, by advocating a policy that would double the programme’s cost, Mr Schetyna has further damaged the party’s hard-won fiscal credibility among its one-time core liberal electorate. At the same time, Civic Platform is unlikely to win the backing of those voters favouring greater social welfare spending, for whom Law and Justice will always be more credible, especially given that Mr Schetyna’s party has had eight years in office during which to introduce such a programme.

On the other hand, ‘Modern’ (Nowoczesna), the smaller liberal opposition grouping led by economist Ryszard Petru, filed amendments proposing the inclusion of better-off single parents with one child in the programme but excluding families with per capita income above 2,500 złoties. When these were rejected, it was the only party to vote against the subsidy arguing that ‘500 plus’ was not the most cost-effective way of channelling government support to Polish families. This means that, unlike Civic Platform, Mr Petru’s party is well placed to benefit if the government proves unable to secure the budget revenues that it is counting on to finance ‘500 plus’ and its other social spending pledges. However, although the party’s support has grown in recent months, and it has pulled ahead of Civic Platform in several polls, Modern’s greater programmatic coherence may actually limit its electoral appeal as experience suggests that the social base for pure economically liberal parties is relatively narrow in Poland. Ironically, Civic Platform’s much weaker ideological underpinnings gave the party much greater reach across the political spectrum and had helped it to garner the support of a very broad coalition of voters united mainly by their dislike of Law and Justice.

Is ‘500 plus’ a game changer?

For sure, many Poles are sceptical about whether ‘500 plus’ will help to boost the country’s birth rate significantly and even its supporters admit that programme only represents a first step, albeit an important one, in reversing Poland’s negative demographic trends. But will ‘500 plus’ be the political game changer that Law and Justice are hoping for? Many of the party’s supporters feel that the previous 2005-7 Law and Justice-led administration did not derive sufficient political benefit from the fact that it lowered income and payroll taxes, and pushed through a tax relief package for families, because the impact of these policies was too diffuse. ‘500 plus’, on the other hand, is simple and easy for Poles to grasp, and many of them will see a direct and clearly identifiable financial impact on their family budgets. It will certainly provide a significant boost to low income families, particularly those who live beyond the large urban centres and feel frustrated that they have not shared sufficiently in the country’s recent economic growth. Indeed, a February 2016 survey conducted by the CBOS polling agency found that 80% of respondents supported ‘500 plus’, including 62% of ‘Modern’ voters and 65% of Civic Platform supporters, while only 15% were against. Moreover, by being seen to deliver on its flagship election promise (even if many people feel that it has done so only partially), Law and Justice has strengthened its credibility among its own voters, particularly those persuaded to support the party because of social policies like ‘500 plus’.

However, there is a risk that ‘500 plus’ – and, for that matter, the government’s other social spending policies – could be eclipsed by other, more politically problematic issues. Immediately after it took office, the new Law and Justice government found itself on the back foot following claims by its political opponents that some of its actions – notably a dispute over the membership and functioning of the constitutional tribunal (a powerful body that rules on the constitutionality of laws) and a new media law allowing the government to directly appoint the heads of public broadcasting – undermined the fundamentals of Polish democracy and the rule of law. The government’s supporters denied these charges vigorously and defended its actions as necessary measures to restore pluralism and balance to state institutions that they say had been colonised by supporters of, and milieu associated with, the previous Civic Platform-led administration. Nonetheless, the government’s actions drew heavy criticism from the Western opinion forming media and EU political establishment, with whom the opposition enjoys close links and many of whom are ideologically unsympathetic to Law and Justice, culminating in the European Commission’s unprecedented January decision to launch an investigation into Poland under the EU’s ‘rule of law’ mechanism. Some polling suggested that the political turbulence surrounding these controversies had a negative spillover effect on public support for the government’s other policies, even those that were widely assumed to be popular such as ‘500 plus’. For example, a January survey conducted by the Ariadna agency found that support for ‘500 plus’ fell from 53% in December 2015 to 41%, while opposition increased from 40% to 47% over the same period.

As the constitutional tribunal crisis and controversy over the new media law assumed a lower profile, the government was relieved to see a return to more ‘normal’ patterns of politics with voters starting to once again evaluate parties through the prism of ‘bread and butter’ issues such as the ‘500 plus’ programme, where Law and Justice feels it is more in tune with public opinion than its liberal and centrist opponents. Moreover, while the ruling party has a large number of opponents – many of whom were prepared to take to the streets last December in demonstrations organised by the Committee for the Defence of Democracy (KOD), an opposition-backed anti-government civic movement – it also retains widespread support which appears to have stabilised in recent weeks. For example, a January CBOS survey found that 35% of respondents supported the government while 32% opposed it and 27% were neutral. Moreover, in spite of the fact that Poles support their country’s EU membership overwhelmingly, a January survey by the IBRiS agency found respondents evenly divided (47% in favour, 47% against) on whether or not the EU was right to launch its ‘rule of law’ investigation into the state of democracy in Poland. In fact, Law and Justice’s support has, if anything, hardened among its core electorate and, as the ‘Pooling the Poles’ micro-blog that aggregates voting intention surveys shows, the party retains a clear lead in the polls averaging around 36% support compared with 22% for Mr Petru’s party and 17% for Civic Platform.

Will its political impact be diluted?

Nonetheless, while the government is keen to ensure that political debate remains focused on socio-economic issues such as ‘500 plus’, the constitutional tribunal crisis is very likely to re-surface in March. The tribunal expects to rule on the constitutionality of amendments to the law determining its functioning passed by the Polish parliament at the end of last December; which the government argues have already come into force and the tribunal has no power to review. At the same time, the European Commission has said that it will also return to the issue of democracy in Poland next month after the Venice Commission, an advisory body of the Council of Europe (a non-EU organisation which aims to uphold democracy and the rule of law), issues an opinion on the country’s constitutional tribunal reforms. The danger for Law and Justice, therefore, remains that, however popular social spending programmes like ‘500 plus’ may be, their political impact could be diluted if they are once again overshadowed by, and subject to negative spillover effects from, other, more controversial issues where the government is on weaker ground and the political and social forces ranged against it, both domestically and internationally, are much stronger.

How will the EU’s ‘rule of law’ investigation affect Polish politics?

Poland’s right-wing government found itself on the defensive following the European Commission’s unprecedented decision to initiate an investigation under the EU’s ‘rule of law’ mechanism. An ongoing row with the Commission will be debilitating for the government which will have to spend valuable time and political capital defending its reputation in the European arena. However, the ruling party has shown that it can fight its corner and the Commission’s intervention could prove a double-edged sword for Poland’s opposition.

Law and Justice on the back-foot

The Polish government – led, since last October’s parliamentary election, by the right-wing Law and Justice (PiS) party – found itself on the back-foot earlier this month following the European Commission’s surprising decision to initiate a preliminary investigation of the country under the EU’s so-called ‘rule of law’ monitoring mechanism. In 2014, the Union adopted the instrument, intended to address ‘systemic’ breaches of the rule of law and EU principles in any member state. It was meant to complement the so-called ‘nuclear option’ provision in Article 7 of the EU treaties that allows the European Council to impose sanctions on countries found to be in serious and persistent breach of fundamental EU values; in the worst-case scenario, suspending their voting rights. So far the Commission has agreed to the first step under the framework which involves undertaking a preliminary investigation of whether or not there are clear indications of a ‘systemic threat to the rule of law’ and initiating a dialogue with the member state concerned.

This unprecedented move came in response to concerns about recent actions by the Law and Justice government in relation to the membership and functioning of Poland’s constitutional tribunal, a powerful body that rules on the constitutionality of laws, and a new media law passed by the Polish parliament earlier this month. The government’s critics accuse it of undermining the fundamentals of Polish democracy and the rule of law by: ignoring the tribunal’s rulings on the constitutiality of a law determining the body’s membership and trying to curb its power to place checks on the government, as well as placing public broadcasting under direct government control. These actions, they argue, represent attempts to interfere in the independence of the judiciary and put Law and Justice party loyalists in charge of state TV and radio.

Mrs Szydło’s counter-offensive

Law and Justice tried to regain the initiative by undertaking a (somewhat belated) public relations offensive aimed at improving Poland’s image within the EU institutions; re-assuring European leaders of the government’s broadly pro-EU attitude and that it was committed to upholding the rule of law and European values. The government’s supporters defended its actions as necessary measures to restore pluralism and balance to state institutions that they say had been colonised by supporters of, and milieu associated with, the centrist Civic Platform (PO) grouping, the previous governing party. More broadly, they argued that many Polish institutions have been expropriated by an extremely well-entrenched, and often deeply corrupt, post-communist elite and claimed that opposition to the government was being orchestrated by political forces unable to come to terms with their electoral defeat and vested interests hostile to its plans to radically reconstruct the state and introduce sweeping socio-economic reforms.

The centrepiece of Law and Justice’s counter-offensive was (what even the government’s critics admitted was) an effective intervention by prime minister Beata Szydło in a European Parliament (EP) plenary debate on the political situation in Poland held in the week after the Commission’s decision was announced. Although Mrs Szydło’s critics accused her of being evasive and misleading in responding to the Commission’s concerns, in a calm and conciliatory performance she tried to de-escalate the dispute: insisting that the Polish government was open to dialogue and would co-operate to patiently answer all of the criticisms. However, Mrs Szydło did not make any substantial concessions arguing that the constitutional tribunal dispute was an internal matter of a political rather than legal nature for Poland to solve on its own, and that the government’s changes to public broadcasting conformed to European standards. Earlier, she tried to undercut the Commission’s arguments by organising consultations with opposition leaders, for the first time since the new government took office last November, to find a compromise solution to the constitutional tribunal deadlock (unsuccessfully, as it turned out). The EP debate was also preceded by a visit to Brussels by Law and Justice-backed President Andrzej Duda who tried to lower the emotional temperature of the debate by meeting, and holding a (generally good natured) joint press conference, with EU Council President and former Civic Platform prime minister Donald Tusk.

Law and Justice was helped greatly by the weak performance in the EP debate of Civic Platform, now the main opposition grouping. The Polish opposition enjoys close links with the EU political establishment and Western opinion forming media, many of whom share their dislike of Law and Justice, so it was assumed that the EP debate would be favourable territory for the party. Indeed, during party leadership election hustings with local activists, Civic Platform’s new leader Grzegorz Schetyna (who was elected unopposed at the end of this month) identified utilising the European arena as a key element of the opposition’s anti-government strategy. However, the party was divided over which tactics to pursue in the EP debate: anxious to capitalise on the government’s difficulties, but fearful of leaving itself open to criticism that it was weakening the country’s international standing by using a European forum to air domestic political grievances. In the event, except for one brief intervention from a Civic Platform MEP, the party effectively sat out the debate and ended up with the worst of both worlds: apparently supporting the Commission intervention but only half-heartedly.

The EU intervention could drag on

In fact, the Commission has no powers to impose sanctions on Poland as the ‘rule of law’ framework only constitutes a political dialogue without any legally binding recommendations. These can only arise if the Commission proposes them to the EU Council under Article 7 where they require unanimity in one of the three stages of voting; and the Hungarian government has already made it clear that it will veto any attempt to introduce such measures. However, Mrs Szydło’s effective EP performance – and, more broadly, Law and Justice’s public relations counter-offensive – have not ended the conflict between the Commission and Poland. While the government is keen to move political debate back on to ‘normal’ socio-economic issues, where Law and Justice feels it is more in tune with public opinion than its liberal and centrist opponents, the Commission’s ‘rule of law’ investigation process could be a lengthy one, potentially forcing the Polish ruling party to spend valuable time and political capital responding to criticisms and defending its position in the European and international arena.

The Commission has said that it will return to the issue in March after the Venice Commission, an advisory body of the Council of Europe (a non-EU organisation which aims to uphold democracy and the rule of law), issues an opinion on Poland’s constitutional tribunal reforms. If the matter is not resolved by then, the Commission can issue a ‘rule of law recommendation’ giving Poland a specific time period to address the problems it has identified. If it still considers that the problem has not been dealt with to its satisfaction, the Commission can then recommend the invocation of Article 7. At the same time, the constitutional tribunal crisis looks set to rumble on with most of Poland’s opposition parties rejecting a government proposal to resolve the crisis by replacing the tribunal’s membership with eight judges nominated by the opposition and seven by the ruling party. It could also re-surface as a major issue of contention next month when the tribunal expects to rule on the constitutionality of amendments to the law determining its functioning passed by the Polish parliament at the end of December; which the government argues has already come into force and the tribunal has no power to review.

How will Poles react?

At this stage, it is difficult to tell how Poles will react to any further EU interventions. On the one hand, many of them are quite sensitive to international opinion, and understandably wary of anything that might lead to the country losing influence which could make it more difficult for Poland to promote its interests within the EU. Not only do Poles still support their country’s EU membership overwhelmingly, but one of Law and Justice’s opponents’ most effective criticisms of the previous 2005-7 party-led administration was that it had isolated Poland within EU institutions by alienating the main European powers, particularly Germany, and created the perception of the country as an unreliable and unstable EU member. This charge was strongly rejected by Law and Justice supporters who, for their part, argued that it was the previous Civic Platform-led government that failed to advance Poland’s interests effectively within the EU in spite of locating the country squarely within the so-called ‘European mainstream’ and enjoying extremely close relations with Berlin.

Moreover, notwithstanding the potential threat that isolation within the EU might pose to Poland’s tangible, material interests, at a more abstract level many Poles may feel particularly uneasy about the charge that the Law and Justice government is undermining so-called European values. This is because one of the key motivations for Poles voting overwhelmingly to join the EU in a 2003 accession referendum, and main reasons why levels of popular support for the country’s EU membership have remained so high, was the idea that joining the Union represented a historical and civilisational choice: a symbolic re-uniting of Poland with a Western international community of shared values that they had always considered themselves to be part of culturally and spiritually.

However, although most Poles remain broadly pro-EU, they also value their national independence and are likely to react instinctively against the idea of foreign interference in their domestic affairs. Moreover, as this month’s events have shown, Law and Justice will fight its corner in the European arena, so a heavy-handed EU intervention could simply allow the party to present itself as the defender of Polish sovereignty against unwarranted meddling by arrogant Brussels officials. Moreover, the idea of Polish EU membership as representing a ‘civilisational choice’ has been undermined in recent years by an increasing sense of cultural distinctiveness that many Poles feel towards Western Europe. This has been particularly evident in the sphere of moral-cultural values where Polish attachment to traditional morality and national identity stands in stark contrast to the socially liberal, cosmopolitan consensus that predominates among West European political and cultural elites.

This issue has surfaced recently in the contrasting reactions of Poles (and other Central Europeans) and West European political elites (although not necessarily their publics) to the European migration crisis. Poles are keen to avoid the kind of cultural and security problems that many of them feel West European countries have experienced through admitting large numbers of Muslim migrants who are seen as difficult to assimilate and embedding violent extremists within their communities. Indeed, one Law and Justice response to the Commission’s ‘rule of law’ investigation was that the EU should be concerning itself more with addressing the fall-out from the migration crisis than the political situation in Poland. In other words, it not as obvious as it once was – and, arguably, becoming less so – that the ‘civilizational choices’ that are being made by political and cultural elites in other parts of the continent are the same ones that Poles want to make. The ‘European card’ is, therefore, one that the government’s opponents need to play with great caution and could easily backfire on them.

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